Ms S Clayton v The Chief Constable Of Hertfordshire Constabulary: 3302407/2022

EMPLOYMENT TRIBUNALS

Case No 3302407/2022

Between

Ms S ClaytonClaimant

The Chief Constable Of Hertfordshire ConstabularyRespondent

Before

Employment Judge Quill; Mr J Carroll, Mr A Fryer

Ms V von Wachter (instructed by counsel) for respondent

Date 25 October 2024

JUDGMENT

[1]The Claimant was not constructively dismissed. That is, there was no dismissal within the definitions in section 95(1)(c) Employment Rights Act 1996 (ERA) or section 39(7)(b) Equality Act 2010 (EQA)

[2]The complaints of disability discrimination within the definition in section 21 EQA (failure to comply with a duty to make reasonable adjustments) fail and are dismissed.

[3]The complaints of disability discrimination within the definition in section 15 EQA (treating a person unfavourably because of something arising in consequence of their disability) fail and are dismissed. Case No: 3302407/2022

[4]The complaint of harassment related to disability fails and is dismissed.

[5]Since there was no dismissal, the complaint of unfair dismissal fails and is dismissed.

REASONS

[1]The Claimant was a civilian employee of the Respondent. She submitted a resignation in circumstances which she alleges amount to a constructive dismissal. She alleges that there was a dismissal which was unfair, and which was disability discrimination. As set out more fully in list of issues, she alleges failure to make reasonable adjustments, discrimination arising from disability and harassment related to disability.

[2]The background to the case is that the Claimant has a disability (and the Respondent accepts that she does) and that, because of the disability, she was unable to wear a mask (and the Respondent accepts that). Many of the allegations relate to events after the start of the Covid pandemic (around March 2020) and after the Respondent introduced a mask requirement (around October 2020). 1 of 140 Procedural History prior to start of this hearing

[3]The ACAS early conciliation certificate [Bundle 1] shows that it was issued on 26 January 2022, and that early conciliation commenced 31 December 2021.

[4]The claim form was submitted on 25 February 2022 [Bundle 3]. A response was submitted and accepted. [Bundle 17].

[5]There were three preliminary hearings:5.1 Before EJ Buckley on 16 November 2022 [Bundle 219] (“PH1”)

5.2 Before EJ Reindorf on 10 March 2023 [Bundle 233] (“PH2”)

5.3 Before EJ Tobin on 31 May 2023 [Bundle 241] (“PH3”) at which he produced a list of issues [Bundle 252]

[6]The dates for this final hearing were fixed at PH1. Because the list of issues could not be finalised at PH1 (though a fairly detailed draft was included in the summary and orders), PH2 was listed by EJ Buckley. As discussed throughout EJ Reindorf’s summary and orders, but especially at paragraphs 13 to 18, it was not possible to finalise the list of issues during PH2. She ordered that the basis for the parties to move forward was to adopt the Respondent’s draft as the base, and to make amendments to it, and she ordered that the list of issues would not be in the form of a Scott Schedule (as proposed by the Claimant). She ordered that there would be a further preliminary hearing after 2 May 2023, which should only require one hour, and, at paragraphs 4 to 8, made some orders for what list of issues should contain.

[7]The notice of hearing for PH3 was sent 20 March 2023. Despite EJ Reindorf’s order that list of issues should be agreed by 28 April 2023, and despite the parties knowing from 20 March onwards that the date of PH3 was 31 May 2023, the list of issues was not agreed. On the contrary, it seems that the parties were no further forward than they had been before EJ Reindorf.

[8]EJ Tobin took the sensible decision that, rather than simply list a fourth hearing, he would prepare the list of issues. He made an order that if either party disagreed with his list, then they were to write to the Tribunal and the other party within 14 days. Neither party did so.

[9]An outline timetable had been prepared by EJ Buckley. EJ Tobin was of the opinion that 10 days might be more than was needed, and ordered the parties to submit a draft timetable after witness statements had been exchanged, which took account of his comments in paragraph 16. Neither party did so. 2 of 140 The List of Issues

[10]At this hearing, despite the above, both parties wished to depart (very substantially) from EJ Tobin’s list of issues.

[11]The Respondent’s starting point was that it wished to use the list of issues drafted on 1 March 2023, that had been rejected by EJ Reindorf and not adopted by EJ Tobin, for the reasons explained in their respective orders.

[12]The Claimant’s starting point was that she potentially wished to use the Scott Schedule that had been rejected by EJ Reindorf. We refused to adopt a Scott Schedule format, because nothing seemed to have changed since EJ Reindorf made the decision that a Scott Schedule was not appropriate.

[13]However, the Claimant’s fallback positions was that she wished to use a version of list of issues which had been sent to the Respondent shortly before Day 1 of the final hearing, and which used the Respondent’s 1 March 2023 document as a base, and proposed some changes to it.

[14]On Day 1, we ordered that we would deal with finalising list of issues on Day 2. We said we would start Day 2 at 11am (after pre-reading) and then spend a maximum of 1 hour, from 11am to 12pm, on the list of issues before starting the first witness at 12pm.

[15]There was some progress between the parties by the time we were ready to start dealing with list of issues on Day 2. After some other case management decisions, we started dealing with list of issues around 12.45pm and (having broken for lunch) it took the remainder of the day. We made decisions and gave reasons for them during the course of that process. One of those decisions was to allow an amendment to allow an allegation of harassment.

[16]Before the start of the hearing on Day 4, the judge supplied the parties with the updated list of issues which was believed to represent (subject to corrections of typographical errors, and subject to addition of some specific information required from the Claimant) the decisions which been made on Day 2.

[17]The panel proposed that the parties would have until Day 6 (the Monday of Week 2) to consider the document, with the intention of having a brief discussion about it at the start of Day 6. Subsequently, because of new and unexpected information from each side which affected the plans for the timetable, we stated that we would discuss and finalise list of issues during submissions. That is what we did, and we gave oral reasons for our decisions where there was a dispute.

[18]In documents sent to the Tribunal and the Respondent over the weekend, the Claimant’s representative had proposed some changes to the list, some of which the Respondent had no objection to, and some of which it did. We decided that 3 of 140 two of the Claimant’s proposed amendments to list of issues actually required an application to amend the claim:(i) to add an allegation that the dismissal was an act of harassment (contrary to section 40 EQA);

(ii) to add a new (second) allegation of unwanted conduct that amounted to harassment related to disability. The Claimant decided to make no application in relation to the first of these; we refused the application in relation to the second.

[19]The final version of list of issues reads as follows. The sections which are struck through are claims/allegations that were withdrawn by the Claimant at the time of finalising list of issues, but which we have left in so as to keep the numbering the same as in the draft supplied on Day 4 (which in turn retained the numbering from the parties’ travelling draft discussed on Day 2). When doing our analysis, we have been easily able to discern where the written submissions have departed from that numbering, and we have taken the submissions into account for the correct sections of list of issues. 0. Time limits / limitation issues Were any or all of the Claimant’s complaints presented within the time limits set out in section 123 of the Equality Act 2010 (“EQA”) and other applicable legislation. Dealing with this issue may involve consideration of subsidiary issues including: when the treatment complained about occurred; whether there was an act or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 1 October 2021 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it, subject to consideration of the matters mentioned in the previous paragraph.

[1]What were the constraints upon the Respondent in terms of restrictions arising out of the Covid pandemic during the material time? Failure to make Reasonable adjustments s20/21 Equality Act 2010 (EQA)

[2]Did the Respondent impose PCPs during the Covid pandemic and between September 2020 to January 2022 as follows: 2.1. The requirement to wear a mask whilst standing or using the break room in the FCR 2.2. The requirement to wear a mask whilst moving to request support from a supervisor 2.3. The requirement to use a mask in order to have the full range of choices over which entry/exit point to the FCR the employee would use 2.4. The requirement to use a mask in order to use the FCR kitchen (and, therefore, access to the balcony). 2.5. The policy of not explaining to staff/providing training who complain about non mask use and informing the Claimant of those complaints 4 of 140 2.6. The requirement to undertake IMU work at home or in isolation 2.7. The Capability policy/sickness absence procedure (a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal) I. In each case, if the Respondent had the PCP, did that PCP (by itself, and/or along with other PCPs and circumstances) place the Claimant at a disadvantage when compared to non-disabled persons. II. If so, was it a reasonable adjustment to waive the above requirement(s). (That is: was it reasonable for the Respondent to have to take that step?)

[3]For any PCP listed in paragraph 2 (which the Respondent is found to have had), did the Respondent waive the requirement by making alternative arrangements for the Claimant to work without a face covering inasmuch as she was required to 3.1. work at a station close to the exit and entry point, 3.2. minimise their movement around the FCR, 3.3. use only one entry and exit point, 3.4. have her locker at a location closer to where she worked, and 3.5. use only the canteen facilities downstairs from the FCR. 3.6. have contact with colleagues predominantly by telephone, Skype or TEAMS (this particular mandate applied to all FCR staff). 3.7. be permitted to undertake IMU work at home or in isolation

[4]Were such arrangements themselves PCP’s which placed the Claimant at a disadvantage when compared to non-disabled persons

[5]Would one, or more than one, of the following have been a reasonable adjustment to any of the (which the Respondent is found to have) PCPs as listed in paragraphs 2 or 3. That is: was it reasonable for the Respondent to have to take that step?: 5.1. Undertake a risk assessment involving a single member of staff not wearing a mask when standing, or 5.2. Requiring all staff to sit at designated locations so as to enable contact tracing such that the Claimant was not treated differently, or 5.3. Requiring the Claimant to take regular lateral flow tests to demonstrate freedom from Covid, or 5.4. To allow the Claimant to work in another office where staff were not required to wear face masks, or 5.5. Temporarily allocate the Claimant work in another department outside the FCR. 5.6. Arrange and/or complete mediation 5.7. Permit the Claimant to take unpaid leave or period of disability leave 5 of 140

[6]Did the Respondent have a PCP as follows: a policy of the Respondent not to explain to staff or provide training to those who complained about others not wearing face masks?

[7]If so, did this place the Claimant at a disadvantage; if so what disadvantage?

[8]Was it a reasonable adjustment (to the PCP in paragraph 6) for the Respondent to carry out discrimination training and issue information on persons not able to wear face masks. That is: was it reasonable for the Respondent to have to take that step?

[9]Did the Respondent impose PCPs in or around November 2020 as follows: 9.1. The requirement to using a specific entry/exit point to the FCR 9.2. The requirement for staff unable to wear a mask not to use the FCR kitchen.

[10]If so, did it place the Claimant at a disadvantage? If so, what?

[11]Was it a reasonable adjustment (to the PCPs in paragraph 9) to do one or more of the following. That is: was it reasonable for the Respondent to have to take that step? 11.1. Not apply the policy to the Claimant in accordance with government guidance, or 11.2. Train staff in disability discrimination and deal with complaints accordingly, or 11.3. Undertake a risk assessment with the scenario of one member of staff in the room not wearing a mask when standing when all staff were not required to wear a mask when seated and talking and able to sit in any location, or 11.4. Require all staff to sit at designated locations to enable contact tracing and not make the Claimant stand out, or. 11.5. Require the Claimant to take regular Lateral Flow Tests to demonstrate she did not have Covid, or 11.6. Allow the Claimant to work in one of the many other offices where other people worked and which were not subject to the same alleged criteria as the FCR, or 11.7. Temporarily second the Claimant to a different department outside of the FCR? 11.8. Arrange and/or complete mediation 11.9. Permit the Claimant to take unpaid leave or period of disability leave

[12]Did the Respondent impose PCPs during the Covid pandemic as follows: 12.1. The requirement to wear a mask in order to have the full range of choices (for an employee doing a particular job) over which seat in the FCR they would sit in during their shift 12.2. The requirement to wear a mask in order to approach the desk of a supervisor to have a face to face discussion over any matter (including when the employee had a query or required assistance) 6 of 140

[13]Did this place the Claimant at a disadvantage? If so, what?

[14]Were the matters companied of above in para 3, 9 & 12 in fact reasonable adjustments (or part of a reasonable adjustment) to allow the Claimant to continue to work in the FCR without a face mask?

[15]Would it have been a reasonable adjustment (to the PCPs in paragraph 12) to do one or more of the following. That is: was it reasonable for the Respondent to have to take that step? 15.1. Undertake a risk assessment involving a single member of staff not wearing mask when standing, or 15.2. Requiring all staff to sit at designated locations so as to enable contact tracing such that the Claimant was not treated differently, or 15.3. Requiring the Claimant to take regular lateral flow tests to demonstrate freedom from Covid, or 15.4. To allow the Claimant to work in another office where staff were not required to wear face masks, or 15.5. Temporarily allocate the Claimant work in another department outside the FCR. 15.6. Arrange and/or complete mediation 15.7. Permit the Claimant to take unpaid leave or period of disability leave

[16]Between September 2020 and January 2022, did the Respondent impose a PCP of a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.

[17]If so, did this place the Claimant at a disadvantage?

[18]Was it a reasonable adjustment (to the PCP listed in paragraph 16) to do one or more of the following. That is: was it reasonable for the Respondent to have to take that step? 18.1. Not apply the “mask” policy to C in accordance with government guidance such that C could attend work, or 18.2. Increase the threshold for absences, or waive or not impose the sanctions, or 18.3. Allow the absence to be treated as disability leave, or 18.4. Require the Claimant to take regular LFT tests to demonstrate she did not have Covid and thus be able to attend work, or 18.5. Allow the Claimant to work in one of the many other offices where other people worked and which were not subject to the same alleged criteria as the FCR and thus be able to attend work, or 18.6. Temporarily second the Claimant to a different department outside of the FCR and thus be able to attend work, or 7 of 140 18.7. Remove the mask policy for all given the government declaring the end of all Covid requirements 18.8. Arrange and/or complete mediation 18.9. Permit the Claimant to take unpaid leave period of disability leave Discrimination for something arising from disability s15 EQA

[19]The Respondent accepts that there was “something arising in consequence of” the Claimant's disability, being the inability to wear a mask.

[20]Did the Respondent treat the Claimant unfavourably as follows. That is, did the alleged treatment occur and, if it did, was it unfavourable. Furthermore, if so, was it because of the “something” in paragraph 19? 20.1. Not permitting the Claimant to work as usual, just without a mask. 20.2. Requiring the Claimant to be located apart from co-workers 20.3. Requiring the Claimant to access support via TEAMS and not face to face. 20.4. Requiring the Claimant to use a specific kitchen 20.5. Refusing the Claimant access to the balcony 20.6. Requiring the Claimant to use a certain entrance and exit 20.7. Subjecting the Claimant to the capability process 20.8. Refusing to uphold the FAW

[21]Was any of this treatment (to the extent that it did occur) a proportionate means of seeking to achieve a legitimate aim (the alleged legitimate aim being: to preserve the health and safety of(i) the Force Control Room staff and

(ii) staff in general)

[22]The Claimant alleged that there was “something arising in consequence of” the Claimant's disability, namely absence from work. The Respondent does not concede that every period of absence was because of disability, and so the Tribunal will need to decide which (if any) period of absence was “something arising in consequence of” “the Claimant’s disability. If, and to the extent that, there was absence arising in consequence of disability, did the Respondent treat the Claimant unfavourably as follows. That is, did the alleged treatment occur and, if it did, was it unfavourable. Furthermore, if so, was it because of the “something” mentioned above in this paragraph: 22.1. Subjecting the Claimant to the capability process and issuing her with a first written warning (around 23 September 2020) and then final written warning (around 18 August 2021) 22.2. Moving the Claimant to the final stage (3) of the capability process (around late November / early December 2021; notified to the Claimant around 6 December 2021) 8 of 140

[23]Was any of this treatment (to the extent that it did occur) a proportionate means of seeking to achieve a legitimate aim, namely the normal and professional management of unacceptable absence so as to minimise disruption to the FCR and staff in general? Harassment s26 EQA

[24]Was the Claimant subjected to unwanted conduct that had the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her when : 24.1. When on the 17th January 2022 she was wrongly accused of refusing management instructions to attend Occupational Health. If so, was that conduct related to disability? In deciding whether conduct has the effect mentioned, the Tribunal will need to consider the factors mentioned in section 26(4) EQA. Constructive Dismissal s 95(1)(c) Employment Rights Act 1996 (ERA) s 39(7)(b) Equality Act 2010 (EQA)

[25]Did the Respondent fundamentally breach the implied term of trust and confidence allowing the Claimant to resign and treat herself as dismissed when: 25.1. In September 2020 she was given a first written warning 25.2. In or around November 2020 it informed the Claimant that colleagues had complained about her not wearing a face mask 25.3. On 23 November 2020 a FCR supervisor asked why she was not wearing a mask despite the Claimant wearing a ‘disability’ lanyard. 25.4. On 2 November 2020 she was told that because of colleague complaints about her not wearing a face mask she was being restricted to a designated seat and only permitted to use the front entrance/exit to the building and asked to use the downstairs kitchen. 25.5. In early 2021 she was asked to access supervisory support via TEAMS rather than face to face contact. 25.6. In February 2021 her appeal against the first written warning was not upheld. 25.7. On an unknown date he was informed that the ’Appreciation Board’ in the upstairs kitchen which she had been asked not to use, contained some ‘Appreciations’ of her by colleagues. She was not able to access these. 25.8. When on 15 June 2021 management refused to amend case conference notes relating to the Claimant and which place her in a negative light. 9 of 140 25.9. From April to December 2021, she was given misleading information concerning the nature of the Covid related restrictions 25.10. When she was subjected to a stage 3 capability process prior to completing actions specified by Occupational Health 25.11. When in August 2021 she was given a final written warning relating to her absence and in November 2021 when that appeal was not upheld. 25.12. When in October 2021 her Fairness at Work (Grievance) was unsuccessful. 25.13. When in October 2021 she declined to appeal against the FAW outcome on grounds that the manager dealing with the appeal was the disability lead. 25.14. On 6 December 2021 the Claimant was told that she would be progressed to Stage 3 of the Capability process prior to the mediation recommended by the FAW report being actioned. 25.15. When on the 17th January 2022 she was wrongly accused of refusing management instructions to attend Occupational Health 25.16. Failing to arrange mediation 25.17. When after she was unable to attend the mediation on the 30th December 2021, the Respondent failed to re-arrange a meeting

[26]For each allegation, the Tribunal will need to make findings of fact about what occurred

[27]For the conduct which actually did occur, did it breach the implied term of trust and confidence? The Tribunal will need to decide: 27.1. whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and 27.2. whether it had reasonable and proper cause for doing so.

[28]Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

[29]Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[30]Alternatively, in relation to any “last straw” argument 30.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, her resignation ? 30.2. Has she affirmed the contract since that act ? 30.3. If not, was that act (or omission) by itself a repudiatory breach of contract ? 10 of 140 30.4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation) 30.5. Did the employee resign in response (or partly in response) to that breach ? Legal Consequences if there was a dismissal

[31]If the Tribunal decides that there was a dismissal, the Respondent does not seek to argue that it was for a fair reason. Thus, if there was a dismissal, it follows that there was an unfair dismissal as defined in Part X ERA

[32]If there was a dismissal, the Claimant argues that it was discriminatory dismissal. In particular, the Claimant argues that: 32.1. The following sub-paragraphs of paragraph 25 amount to disability discrimination within the definition in section 21 EQA (failure to make reasonable adjustments) 32.1.1. Paragraph 25.1 32.1.2. Paragraph 25.4 32.1.3. Paragraph 25.5 32.1.4. Paragraph 25.6 32.1.5. Paragraph 25.7 32.1.6. Paragraph 25.11 32.1.7. Paragraph 25.14 32.1.8. Paragraph 25.16 32.1.9. Paragraph 25.17 32.2. The following sub-paragraphs of paragraph 25 amount to disability discrimination within the definition in section 15 EQA (discrimination arising from disability) 32.2.1. Paragraph 22.1 32.2.2. Paragraph 22.4 32.2.3. Paragraph 22.5 32.2.4. Paragraph 22.6 32.2.5. Paragraph 22.7 32.2.6. Paragraph 22.11 32.2.7. Paragraph 22.14 11 of 140 32.2.8. Paragraph 22.16 32.2.9. Paragraph 22.17

Remedy

[33]Remedy for unfair dismissal 33.1. The Claimant does not wish to be reinstated to their previous employment? 33.2. Does the Claimant wish to be re-engaged to comparable employment or other suitable employment? 33.3. Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just. 33.4. Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just. 33.5. What should the terms of the re-engagement order be? 33.6. If there is a compensatory award, how much should it be? The Tribunal will decide: 33.6.1. What financial losses has the dismissal caused the Claimant? 33.6.2. Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 33.6.3. If not, for what period of loss should the Claimant be compensated? 33.6.4. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 33.6.5. If so, should the Claimant’s compensation be reduced? By how much? 33.6.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 33.6.7. Did the Respondent or the Claimant unreasonably fail to comply with it? 33.6.8. If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%? 33.6.9. If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? 33.6.10. If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion? 33.6.11. Which statutory cap applies? 33.7. What basic award is payable to the Claimant, if any? 12 of 140 33.8. Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[34]Remedy for discrimination or harassment 34.1. Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend? 34.2. What financial losses has the discrimination caused the Claimant? 34.3. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 34.4. If not, for what period of loss should the Claimant be compensated? 34.5. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 34.6. Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that? 34.7. Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 34.8. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 34.9. Did the Respondent or the Claimant unreasonably fail to comply with it 34.9.1. If so is it just and equitable to increase or decrease any award payable to the Claimant? 34.9.2. By what proportion, up to 25%? 34.10. Should interest be awarded? How much? The Hearing and the Evidence - Overview 20. The hearing took place entirely by video. There was disruption on Day 5 from midmorning, which meant we could not resume until around 2.15pm. Other than that, there were no significant technical issues, and the participants could see and hear each other throughout. 21. Day 1 and Day 2 were case management. 22. Day 3 was the Claimant’s oral evidence. 23. Days 4, 5, 6 and the start of Day 7 were the Respondent’s oral evidence. 24. The afternoon of Day 7 was submissions (written and oral). 25. Days 8 and 9 were panel deliberations. 13 of 140 26. Day 10 was oral judgment. 27. There was bundle prepared by the Respondent which went to page 1199. Additional pages 1200 to 1267 were added. 28. We gave permission for the parties to also ask questions based on documents in the Claimant’s bundle (though doing their best to only do so if the item was not in the Respondent’s bundle, or could not easily be found there) and for the Claimant to answer questions by reference to the page numbers in the Claimant’s bundle if she wished to do. In the event, there was no reference made to the Claimant’s bundle (the additional pages 1200 onwards, included such extracts from the Claimant’s bundle as the Claimant’s representative believed were necessary). 29. There was also a separate policy bundle. Initially, it went up to page 35, but the Mediation Policy and Procedure was added before the evidence started, taking it up to page 44. 30. On Day 6, the panel sought clarification of whether the “Attendance Management Policy and Procedure” (referenced in paragraph 4.2 of the “Police Staff Capability - Attendance Policy and Procedure”) was a separate document. It turned out that it was, and that it had not been disclosed by the Respondent to the Claimant. We ordered that it be disclosed, and, upon the Claimant asking for it to be added to the bundle, that was done before the evidence resumed at around 2pm on Day 6. The panel pointed out that the version disclosed appeared to have been created / updated in 2024, and asked for the document(s) that applied at the relevant times to be submitted. At around 9.55am on Day 7, an email from the Respondent's representative was sent to the Tribunal and to the Claimant’s representative. Neither representative mentioned this, either to ask if we had it, or to ask for it to be added to the bundle, or to ask questions about it, or to make submissions about it. We have read it in order to decide whether we needed to hear further evidence or submissions about it. We have decided that the differences between the two versions of the document do not make it necessary for us to hear evidence about whether the one submitted did indeed apply at the relevant time, or explanation from the Respondent about the extremely late disclosure of it, or about whether the Claimant had it before we did (this later one being an 11 page document, whereas the earlier one was a 23 page document, each having a footer which seems to show the current date, ie the date on which it is opened). 31. We had a written statement from the Claimant which included page references to her bundle. That was updated before the start of her evidence to include the corresponding references to the Respondent’s bundle. Our references in this document to [Bundle XXX] are to page XXX from the Respondent’s bundle. 14 of 140 32. We also gave permission (there was ultimately no objection from the Respondent) for the Claimant to rely on a version of her witness statement which contained additions to paragraph 81 and a new paragraph 171. 33. The Claimant gave evidence on oath and answered questions. 34. From the Respondent, we had written witness statements from the following (in the order in which they gave their evidence). They each gave evidence on oath and answered questions.34.1 Kenneth Townsend (retired police superintendent, Head of Department of the Force Control Room at the relevant times)

34.2 Joanne Bishop (assistant manager of the Force Communications Room at the relevant times)

34.3 Pat Wallace (Team Leader, at the relevant times)

34.4 Dan Carver, (FCR Team Leader, and the Claimant’s line manager at the relevant times)

34.5 Dean Patient (police superintendent at the relevant time, who was appointed to deal with a matter which the Claimant raised under the Respondent’s Fairness At Work Policy and Procedure).

[35]The Respondent also submitted a sixth witness statement from Hannah Regan, a police sergeant, who was the Claimant’s “second line manager”, in other words, she was Daniel Carver’s superior. Ms Regan did not attend and give evidence. The Respondent submitted medical evidence, and we do not draw adverse inferences from her non-attendance. However, since she has not given evidence on oath, or been cross-examined, we have only given the document such weight as we see fit in all the circumstances.

[36]We also had a chronology submitted at the start of the hearing. On Day 7, we received each side’s written submissions, which we read prior to the start of the hearing oral submissions. We have taken the cases cited by each side, and all the submissions made by either side, into account. The Hearing and the Evidence – Written Reasons Dispute about the Claimant’s Bundle

[37]On Day 1, we had an application from the Claimant’s representative that we should exclusively use the Claimant’s bundle and not the Respondent’s. During the course of submissions - from each side - about this application, the panel raised the possibility of using both bundles. 15 of 140

[38]A stated reason for the application was the Claimant's disability. Another stated reason was the assertion that the Claimant’s bundle was simply a better bundle and it was more fit for purpose. For both of these assertions, the Claimant’s representative argued that the Respondent’s bundle contained duplication, and that the Respondent’s bundle was out of chronological order and that the Claimant’s bundle contained items that were not within the Respondent’s bundle and that the Respondent’s bundle contained some pages whose relevance or necessity had not been demonstrated to the satisfaction of the Claimant’s side.

[39]On the first of these points, we stated we would not need to have it pointed out to us that some pages in the Respondent’s bundle were duplicates and that we would assume it to be true without specific examples. We said that one reason for this assumption is that almost all bundles at employment tribunal hearings have at least some duplication.

[40]On the second of these, according to the index, the Respondent’s bundle appeared to be in chronological order.40.1 As we said during the application, the panel is used to seeing bundles which show email trails with the most recent email first and the oldest on a later page. As we said, we would not usually wish the parties’ representatives to cut and paste extracts from e-mail trails in order to seek to put the emails in chronological order. Our assessment was that this creates more problems than it solves, especially where an issue might arise about whether a particular individual had seen a particular email (for example, if they were not copied into at the first instance, but they might later have seen it when the whole trail became part of a later forward/reply).

40.2 We asked the Claimants representative to give us other examples. One example was that the Respondent had included an item (of 160 pages) called “OHU full file”. Doing so meant that the OH reports, within that section, were in chronological order, but they were not (in the main) slotted in between the contemporaneous email exchanges or meeting notes which might refer to the OH report. We did not think this was especially confusing, and certainly did not consider it to have been unreasonable conduct on the Respondent’s part to have included the documents in the bundle in this manner. We were satisfied that it complied with both the letter and the spirit of paragraph 3.6 of EJ Tobin’s orders.

40.3 For another example of documents out of sequence, we accepted the Respondent’s explanation. It was because the Claimant had disclosed some transcripts of audio recordings, which were all placed towards the back of the bundle, in part because of the lateness of the disclosure and, in part, because the Respondent was disputing their admissibility, and thought they should be 16 of 140 placed together near the back of the bundle to make it easier to remove them all if the Tribunal decided that dispute in the Respondent’s favour.

[41]In terms of documents that were in the Claimant’s bundle but not in the Respondent’s, we were supplied with some page references. We gave the Respondent’s side the opportunity to state whether any of those pages should not be admitted into evidence, either on the basis that they disputed the assertion that the documents had previously been disclosed or on any other basis. The Respondent’s counsel had declined to examine the Claimant’s bundle and made no specific comments objecting to these additional items. (It was later suggested that the additional items had not been disclosed by being sent to the Respondent’s in-house legal department as items of disclosure - with a list; the Respondent’s position was that they were disclosed for the first time when the Claimant first sent a link to a bundle asserting that it should be used as the trial bundle. However, by the time that assertion was made, we had already given the Claimant permission to rely on the entirety of the Claimant’s bundle; our assessment was that we had given the Respondent a fair opportunity to look at the Claimant’s bundle, and – in particular – at the pages that the Claimant’s representative had highlighted as not being in the Respondent’s bundle, before we decided that the Claimant’s bundle could be used in evidence. There was no need to revisit that decision, in our judgment, based on the Respondent’s belated comments).

[42]In terms of items allegedly in the Respondent’s bundle that were said to be unnecessary, the Claimant’s representative did not put forward specific reasons for excluding specific items; rather she said that - having seen the Respondent’s proposed bundle - she had asked the Respondent to provide explanations for why certain items had to be included, and she said that the Respondent had failed to provide explanations. We did not think it necessary or proportionate to ask for copies of this particular correspondence. The only specific item that was mentioned (by either side) was the Respondent’s observation that the Claimant’s impact statement was one of the documents which the Claimant’s representative had queried. The Respondent asserted that the Impact Statement (for example) was plainly an admissible item and that it was not reasonable for the Claimant to seek a page by page explanation of the necessity for documents without the Claimant having put forward any specific argument for why the items ought to be excluded.

[43]On a purely arithmetical basis, and excluding the index of each, the Claimant’s bundle was 963 pages and the Respondent’s was 1199 pages. Since around 40 pages where identified to us as being in the Claimant’s but not the Respondent’s bundle, it followed that there were around 280 pages in the Respondent’s bundle which the Claimant was either asserting was unnecessary duplication or else was asserting were documents that the tribunal did not need to see. 17 of 140

[44]There was no particular document (within the Respondent’s bundle) that was either said to be inadmissible as a matter of law or else which should be excluded for any specific reason.

[45]We gave both parties the opportunity to be specific about precisely which documents were disclosed on time, as required by the orders, and which were disclosed very late. There was broadly agreement that:45.1 Each side had provided some disclosure in summer 2023 (EJ Tobin had ordered it to be done by 21 June 2023) but also disclosed several items later than that.

45.2 The Respondent had sent a draft bundle to the Claimant (by way of a secure link) in around January 2024 and there had been no reply. (We were told that this was because the Claimant was a litigant in person at the time, and could not reply because of her disability.)

45.3 Correspondence took place in the weeks prior to the hearing with a view to

(i) disclosing further documents to each other / requesting documents from each other

(ii) finalising the bundle and

(iii) exchanging statements.

[46]EJ Tobin’s orders had been for the Respondent to have supplied a draft bundle index to the Claimant by 19 July 2023, and for the parties to have agreed the bundle, and for the Respondent to have supplied an electronic copy to her by 26 July 2023. EJ Tobin noted that the Claimant had confirmed that no paper copy was required.

[47]There was no provision in the orders for the Claimant to provide a bundle of her own.

[48]The orders included: 3.3 The respondent must also ensure that the claimant and the Tribunal have an electronic version of the hearing bundle in a form which complies with paragraph 24 of the Presidential Guidance on Remote and In-Person Hearings issued on 14 September 2020. Hearing bundles should be sent to the tribunal as a PDF. The index to the bundle should sent separately, or as the final pages of the bundle, so that the page numbers of the hearing bundle align with the automated PDF page numbering. Any late additions to the bundle must be inserted at the end of the bundle so the pdf numbering is not disturbed. Witness statements should be in a separate PDF bundle. 3.4 Bundles which do not conform to the Presidential Guidance (paragraph 24) will be returned to the party providing it, so that they can be formatted correctly. 3.5 Large document files (exceeding 25mb) must not be sent by email to the Tribunal as they will be rejected. Parties should instead request a link to the Document Upload Centre. 18 of 140 And 6.2 At least two days before the first day of the final hearing the claimant must have provided to the Tribunal five copies of the claimant's witness statement(s) plus her up-to-date schedule of loss, and the respondent must have provided five copies of the respondent's witness statements, the final counter-schedule of loss and the agreed hearing bundle, together with the cast list/chronology. These must be provided as paper copies unless the Tribunal has confirmed that only electronic bundles are required. 6.3 These copies are for the use of the Tribunal, the witness table and (if appropriate) any members of the public who attend the final hearing.

[49]Since there was no provision in the orders for the Claimant to submit a bundle, then nothing was expressly stated in paragraph 6.2 about the need for the Claimant to supply five paper copies of such a bundle. However, since the order was that the bundle that was to be used in the hearing (prepared by the Respondent, as ordered by EJ Tobin) was to be supplied in a hard copy (as well as electronic), it was implicit that any documents that the Claimant wanted to use (in addition to her witness statements) should be sent in hard copy format too.

[50]On the Friday before the hearing, the parties were sent an email which stated: Employment Judge Quill has asked me to write to the parties. The judge’s comments and orders are as follows: Jennifer Andrews wrote to the Tribunal on Tuesday 08/10/2024 at 16:38, stating that there was a link to a hearing bundle in the email. The judiciary and HMCTS do not accept documents via such links. You can email attachments of less than 24 MB per email. The bundle can be divided up to be sent that way. If the bundle and witness statements have not already been supplied electronically (by email) please can they be sent immediately.

[51]The Claimant’s side responded to this email by sending the Claimant’s bundle as a pdf to the Respondent and to the Respondent’s in-house solicitor (Ms Vine). The Respondent responded the email by replying: The Respondent delivered 4 hard copies of the main bundle, Policyy bundles and Statements bundles to the Tribunal on Friday afternoon

[52]Previous case management orders can be varied in appropriate circumstances. The Claimant’s application did not demonstrate any relevant change in circumstances.

[53]It was not the case that the Respondent had failed to produce a bundle until after the Claimant had done so. Rather the Respondent had sent a bundle to the Claimant (around January 2024) and there was no reply for many months. The 19 of 140 issue of whether or not there was a good reason for the non-reply is not relevant to the point at hand; even if there was a good reason, the fact that the Claimant failed to engage with the Respondent in relation to the bundle for many months after it was supplied, is not a relevant change in circumstances such that the Respondent’s bundle should be deemed inadmissible.

[54]In accordance with the rules - and the overriding objective, in particular – if there is a dispute about the contents of the bundle, the parties are expected to resolve it between themselves. It should only be in an extreme case that the parties should make an application asking the tribunal to become involved in micro-decisions about whether a particular item should be included in the bundle or not.

[55]However, if the parties literally are unable to agree the bundle’s contents, then an application to the Tribunal, promptly after the date specified in the orders has expired (and in good time before the date for witness statement exchange has expired) might be required. It is not necessarily reasonable conduct of the litigation for parties to purport to insist on the Tribunal making a decision that one or more particular items be included or excluded; however, it is certainly unreasonable conduct to fail to finalise the bundle. In any event, if the Tribunal did have to make any decision as to bundle composition, then there is no reason that that decision would, in itself, also have led the Tribunal to decide that the Respondent should not prepare the bundle and that the Claimant should do so instead.

[56]A party which does not agree the bundle produced by the party which was ordered to produce the bundle cannot unilaterally decide that they will ignore that bundle, and that the Tribunal should ignore it too.

[57]In this case, the Respondent produced a paginated and indexed bundle. Both sides disclosed some documents very late. Neither side necessarily has a good excuse for such lateness (though the Respondent alleges that some of its late disclosure was of items which the Claimant had requested, as opposed to items which it believed it had been obliged to disclose). Such lateness is never to be condoned, but both side’s actions contributed to the state of affairs that there was no finalised bundle a short time before the hearing. Had the Claimant properly engaged earlier in 2024, then the bundle would have been finalised earlier in 2024.

[58]The orders we made were proportionate and appropriate. They were:58.1 Both sides’ bundles could be used during the hearing.

58.2 The Respondent was ordered to make sure that all its witnesses received copies of the Claimant’s bundle so that they could answer questions put to them about its contents.

58.3 The “main” bundle would be the one produced by the Respondent, as had been ordered at the preliminary hearings. Where the same document was in 20 of 140 both bundles, and where the panel was supplied with the page numbers from each, we would only cite the page from the Respondent’s bundle when giving our reasons for the judgment.

58.4 Where an item was only in the Claimant’s bundle, or, alternatively, where we were only taken to it in the Claimant’s bundle during the evidence phase, we would cite the page from the Claimant’s bundle when giving our reasons.

58.5 We asked that both representatives make a good faith effort to supply us with the page from the “main” bundle where possible.

[59]We also made an order for the Claimant to supply us with information about the pages stated in her own statement. That is, where she had cited a page number from her own bundle, she should supply us with the page from the “main” bundle where the document was in that bundle. We said that our pre-reading would be based on the item that we had received, but that having the information before the Claimant started her oral evidence would be useful. We asked for it to be supplied by 9.30am on Day 2, and that was done.

[60]The Claimant’s representative understood the orders we made. In particular, she understood that we had given both parties the ability to refer to the Claimant’s bundle when asking questions to witnesses or making submissions.60.1 The reason we know that she understood that the orders allowed her to refer to the Claimant’s bundle is that she commented on that order straight away.

60.2 She suggested that, rather than having to take the witnesses to pages in the Claimant’s bundle, a better way forward would be to identify all the pages that were in the Claimant’s bundle only, and then add those pages to the “main” bundle.

60.3 We stated that while the parties were free to go to that effort if they wished to do so, we were not ordering it.

60.4 We stated that if the parties did wish to supply an agreed supplement to the main bundle (and not use the Claimant’s bundle at all), they could do so. We stated that there was no point in the Claimant’s representative unilaterally preparing such a further item, if it was not agreed, because we had already given permission that any documents within the Claimant’s bundle could be drawn to our attention, or the witnesses’ attention.

[61]We also decided that the transcripts produced by the Claimant were all admissible, and that any disputes about whether their contents accurately matched the audio recordings (which were disclosed to the Respondent, but not part of the evidence presented to the Tribunal) would be resolved by us as disputes of fact. 21 of 140

[62]We then dealt with an application for three specific items (that the Claimant’s representative accepted had not been disclosed previously) to be added to the bundle. There was no objection to two of these, and the panel agreed to add the third (for the reasons we gave orally at the time) notwithstanding the Respondent’s objection.

[63]At 11.58am on Day 1, the electronic version of the witness statement bundle (including the Claimant’s statement, as well as all of the Respondent’s) was sent to the Tribunal. This email was not copied to the Claimant’s representative at the time.

[64]Before we broke for the day, we informed the parties that we had received this item, but not the bundle. The Respondent stated that it was in the process of arranging for the bundle to be sent by email (apparently it was unable to use the Document Upload Centre for technical reasons).

[65]Later on Day 1, after the parties had been released for the day (and during our pre-reading), the Respondent supplied the Respondent’s bundle (in 3 pdfs) to the Tribunal. The emails were not copied to the Claimant’s representative at the time.

[66]Later still on Day 1, and following a further reminder from the Tribunal, we received electronic versions of the policy bundle and chronology.

[67]Before the start of Day 2, we had received a 42 page pdf (numbered 1200 to 1241). At the start of Day 2, having discussed some issues about the Claimant’s witness statement, we asked if both sides were therefore content to have these added.67.1 Ms von Wachter stated that there were concerns about the item and attempted to commence submissions.

67.2 The judge interrupted to say that if there was a dispute about adding these 42 pages then we would hear from the Claimant first, and Ms von Wachter could respond. The judge made no substantive comment on what the Respondent had said so far, other than to correct the assertion that all three of the additional items had been added by consent (because the Respondent had in fact objected to one of the three additional items).

67.3 The judge asked Ms Andrews to confirm that the three additional items for which we had given permission were all included in the 42 page pdf. She said that they were and also said that she did not agree with the premise stated by the judge (and by Ms von Wachter).

67.4 She was asked to clarify what the judge had said that she disagreed with (leaving the Respondent's representative’s comments to one side). She said she agreed with what the judge had said about the Tribunal’s decision, but said the context was incorrect. The judge stated that an explanation was 22 of 140 required before any correction could be issued, and asked for the explanation.

67.5 The Claimant’s representative referred to the discussion on Day 1 – as mentioned above - about the possibility of identifying documents that were only in the Claimant’s bundle, and adding them to the Respondent’s bundle (instead of referring witnesses to the Claimant’s bundle). The judge mentioned that he had not been making any comment about that part of the discussion on Day 1; he also reminded the parties about what we had said on Day 1 about that possibility.

67.6 Ms Andrews then went though the various items in the pdf highlighting which page were those items for which we had given permission on Day 1. It transpired that only two of those three items were included. The remaining pages in the pdf were items from the Claimant’s bundle, which the Claimant wanted to have added to the Respondent’s bundle.

67.7 We asked Ms von Wachter if she still maintained an objection. She stated that she would need to take instructions about whether the pages (other than those for which we had already given permission) had previously been disclosed.

[68]We stated that provisionally the additional pages 1200 to 1241 were admitted, and it would be up to the Respondent to make an application later on if it was going to dispute Ms Andrews’ assertion (that all the remaining pages were extracts from the Claimant’s bundle) was incorrect.

[69]We then reiterated again what every witness would need have:69.1 The Claimant’s updated statement with the page references from the Respondent’s included. (The Claimant’s representative had mentioned that there would be an application to use a different version of the statement, but that was still pending while the Respondent decided whether to agree or object).

69.2 All the other statements (so the witness statement bundle)

69.3 All of the bundles: the main bundle; this extra 42 page pdf; the policies bundle and the Claimant’s bundle.

69.4 Any update to the policies bundle. (The Claimant’s position being that the third of the items for which we had given permission on Day 1 should be added to the policies bundle).

69.5 The chronology 23 of 140

[70]After this, the Claimant’s representative made an application for two further items to be added to the Respondent’s bundle.70.1 These were items at pages 754 to 776 and 793 of the Claimant’s bundle. The judge said that pages 752 and 753 from the Claimant’s bundle - the covering letter for the item commencing on 754 - would also be considered to be part of the application.

70.2 In making the application, the Claimant’s representative acknowledged that, if the application was refused, she would still be able to refer witnesses to the documents by taking the witness to these pages in the Claimant’s bundle.

70.3 Upon the judge reading back that he thought the application was being made on the basis that these items had previously been disclosed, but had been omitted from the Respondent’s bundle, the Claimant’s representative

(i) stated that she was upset and needed a break and

(ii) mentioned her own disabilities and

(iii) said that she believed that she was being berated because of her disability and

(iv) that she was concerned that the Tribunal would be frustrated by the Claimant’s representative’s disability and take it out on the

70.4 The judge said there would be a 10 minute break, and during the break Ms von Wachter should take instructions on:70.4.1 whether pages 754 to 776 of the Claimant’s bundle actually were the final version of the Fairness at Work report – because, if they were, there seemed to be no good reason that they had been left out of the Respondent’s bundle – and

70.4.2 whether the Respondent agreed or disagreed that page 793 of the Claimant’s bundle had actually been included in the version of the bundle sent to the Claimant in January 2024.

[71]After the break, we asked if the Claimant’s representative was well enough to continue, and she said she was. We informed the Claimant and her representative that we certainly would not hold it against the Claimant that her representative had a disability. We stated that if anyone (either of the representatives, or the Claimant, or anyone else) required any adjustments from us then they should ask and we would discuss.

[72]We asked if the Claimant’s representative had finished her application, and she confirmed that she had. We asked the Respondent's representative to respond. She said she needed more time to consider. We pressed for an answer, and it was accepted that the Claimant’s pages 754 to 776 were indeed the final outcome of the FAW, and that there was no objection to its being added to the Respondent’s 24 of 140 bundle. Following a brief discussion, there was also no objection to the Claimant’s page 793 being added to the Respondent’s bundle either.

[73]We then made comments about the page numbers for the additional items, and asked for a single pdf to include all of (what would now be) pages 1200 to 1267 to be sent to us. We asked if there was anything else before we moved to discussing the list of issues and each representative expressly confirmed that there was not. Hearing Timetable

[74]On Day 1, after we had heard how long each representative was seeking, we suggested a timetable of:74.1 Start Day 2 at 11am. Deal with list of issues first.

74.2 Start witness evidence no later than 12pm on Day 2.

74.3 Finish the Claimant’s evidence no later than lunch on Day 3.

74.4 The Respondent's first witness starting 2pm on Day 3.

[75]Before we got as far as fixing the times by which the Respondent’s evidence would finish, and at which the submissions would be made, there were applications / objections from each side. On the Claimant’s side, it was that the Claimant should start and finish on the same day, and not be left on oath overnight. On the Respondent’s side, it was that Mr Townsend should only have to attend on Day 3.

[76]We had some discussion with the parties about what they were each saying, and indicated that we would not necessarily be able to accommodate both / either.

[77]We took a break to consider what we had heard so far, and for formal applications to be made after the break. After the break, a consensus was agreed that Mr Townsend would be the first witness (so it would he who would start at 12pm, or earlier, on Day 2). If his evidence was concluded on Day 2, we would take a break and start with the Claimant first thing on Day 3. If his evidence was not concluded on Day 2, he would come back on Day 3, and his evidence would be concluded no later than 10.30am on Day 3, with the Claimant’s evidence starting no later than 10.45am on Day 3. On this basis, Ms von Wachter was confident that the Claimant would not need to be left on oath until Day 4. We made clear that we were not making a formal order to that effect, but that if there came a time on Day 3 that Ms von Wachter thought she might not be able to finish her cross-examination on that day, she would need to alert the panel and Ms Andrews straight away.

[78]On Day 2, document issues took up the first hour, and so the discussion about list of issues only got underway after 12pm (so after the time at which Mr Townsend had been due to start his evidence). 25 of 140

[79]Over lunch, the parties came to an agreement, which the panel was content to approve, that Mr Townsend would not be the first witness after all and that the Claimant would be the first witness, starting at 10am on Day 3. By 4pm on Day 2, it appeared that list of issues was more or less finalised (as set out in more detail above).

[80]The Claimant did finish on Day 3. We started Day 4 by informing the parties that our version of list of issues, based on the Day 2 discussions, had been emailed to them, but that we would get on with Mr Townsend’s evidence, and that there was no need for the representatives to come back to us with any further comments on list of issues prior to the next Monday (Day 6).

[81]There were delays to the Claimant’s representative’s cross-examination of Mr Townsend getting properly underway (though no fault of Ms Andrews or Mr Townsend). The time estimate for Mr Townsend was 4 hours, and crossexamination only properly got underway at around 11.30am. Part of the problem was that the version of the witness statements sent to the Tribunal seemed to be different to those sent to the Claimant.1

[82]At 2pm, the Respondent's representative stated that it might be necessary to interpose Ms Bishop the following day (Day 5) as she was not going to be available next week. Other than what we had been told about Mr Townsend only (initially) being available on Day 3, this was the first time that the Respondent had raised any issues about their own witnesses availability.

[83]At the end of Day 4, the Claimant’s representative indicated that she had about 25 minutes worth of cross-examination left (on the assumption that there were no further problems with his accessing the documents). We ran through what the updated timetable would be, taking account of all of Ms Andrews’ time estimates:83.1 Ms Bishop (4 hour time estimate) and Mr Townsend both finished on Day 5.

83.2 Carver and Regan next, with both finished by Day 6 (the combined time estimate for them being 5 hours). 1 Ms Andrews had a version which had no pages numbers for document references, only blank spaces where the page numbers were to be added. We pointed out to the parties on Day 4 that the Respondent had not copied in the Claimant when sending the electronic documents to the Tribunal on Day 1. The panel’s versions - both the hard copies (which had never been sent to the Claimant, by agreement) and the electronic copies - included page number references within the Respondent’s witness statements. The Respondent suggested that the correct versions had been sent electronically to the Claimant’s side. We said that we would work on the assumption that the first time Ms Andrews received these versions was the morning of Day 4 unless the Respondent was able to provide evidence to the contrary later in the hearing. No such evidence was provided, and neither side mentioned the point again. 26 of 140

83.3 Patient next, and as 4 hours was the time estimate that would potentially take some or all of Day 7.

83.4 Wallace to be slotted in wherever convenient.

83.5 In any event evidence was to be finished on Day 7, and our proposal was submissions first thing on Day 8 (Wednesday).

[84]The Claimant’s representative stated that submissions could not be on the morning of Day 8 because of a medical appointment. We said that, undoubtedly, if the medical appointment could not be rearranged, then the Claimant’s representative would be free to attend it. However, that was likely to mean that we would require submissions on the afternoon of Day 7, so as to be able to give the liability decision, with reasons, and deal with remedy (if needed) within the 10 day hearing slot. We invited both parties to think about that, and said we would discuss it further the following day.

[85]On Day 4, it had been mentioned in passing by Ms von Wachter that Ms Regan was on sick leave. So, at 10am on Day 5, we asked for confirmation that she was still going to give evidence, and that was indeed the Respondent’s expectation at the time.

[86]On that basis, we gave a provisional timetable as follows:86.1 Finish with Townsend and Bishop that day. Possibly start with Carver.

86.2 Day 6, finish with Carver and Regan, and potentially start with Patient.

86.3 Wallace to be fitted in when convenient for the Respondent.

86.4 Day 7 finish the Respondent’s final witness by 1pm, with submissions at 2pm.

86.5 The Claimant’s representative was free to be quicker with the other witnesses in order to make sure to allow for 4 hours (starting on the Monday) with Patient, but, even if Patient did not start until morning of Day 7, the evidence needed to be completed by lunch on Day 7.

86.6 Discussion about list of issues to be postponed from the planned 10am on Day 6 to be held during the submissions phase.

[87]By around 3.10pm on Day 5, Townsend, Bishop and Wallace were all concluded. We had now been told that Ms Regan was not well enough to give evidence (and we were provided with a GP’s fit note) and would not be attending. We therefore had two witnesses left, Carver and Patient. We proposed a short break, with Mr Carver to start after that break. 27 of 14087.1 The Respondent applied that we break for the day and start with Mr Carver on Day 6 and then break on Day 6 after that evidence to have Mr Patient first thing on Day 7. There were said to be two reasons: not wanting to leave Mr Carver on oath over the weekend; Mr Patient being abroad on Monday.

87.2 After asking some questions to Ms von Wachter, we said that we would go ahead with the break so that the panel could discuss what had been said, and so that Ms Andrews could take instructions.

87.3 Following the break, we said that we would listen to anything the Claimant’s side had to say, especially if the Claimant was in agreement with the proposal. However, our provisional opinion was that we should start Mr Carver now and continue with him on Monday (given that it was unlikely that he would be finished by the end of Day 5). Our provisional opinion was that when he finished his evidence on Monday (two hours, had been Ms Andrews’ earlier estimate for him, before knowing that Ms Regan was not attending), the Respondent would be expected to have Mr Patient available, or else might have to make an application that we rely on his written statement only. This was on the basis that the Claimant’s side had said all along that they wanted 4 hours with Mr Patient, and they would not have that if he only started at 10am on Day 7, and had to finish by 1pm.

[88]The Claimant’s representative did not suggest that instead of that, we should allow Mr Patient to start at 10am on Day 7 (either on the basis that we use the time on Monday to finalise list of issues, or on any other basis). The Claimant’s representative did not suggest that instead of our suggestion, we should break for the day, and start with Mr Carver on Monday. On the contrary, the Claimant’s representative stated that she had been contemplating making a strike out application, but that our proposal seemed a better way forward, and she was content with it.

[89]On Day 6, Mr Patient was in the UK and was in the video hearing room from the start of the day. Mr Carver’s evidence continued. At several points during the day, Ms Andrews stated that she was optimistic about finishing both Carver and Patient that day, and we said that would be fine, but she could still have the following morning to finish with the final witness(es) if necessary.

[90]There was a delay at the start of the day because (as a result of questions that had been put to him already), the panel wanted to know from the Respondent and the witness if there existed a document called “Attendance Management Policy and Procedure” (which seemed to be mentioned in paragraph 4.2 of the “Police Staff Capability - Attendance Policy and Procedure”). Upon finding out that it did exist, we ordered it to be sent to the Claimant’s representative and the crossexamination continued. It had been supplied to Ms Andrews by the time we resumed after the morning break, but she had not had the chance to read it. We 28 of 140 said that there could be a further break to allow her to do so, and, in the event, that turned out to be the lunch break.

[91]At about 3pm on Day 6, Mr Carver’s oral evidence was concluded, and we suggested we move straight on to Mr Patient and then break at 3.15pm.

[92]The Claimant’s representative stated that her anxiety level was high. She said she had considered the list of issues and made some further proposed changes (which had been emailed over the weekend) and that it was causing her anxiety that they had not yet been discussed.

[93]The judge commented that we were still planning to have submissions at 2pm on Day 7, subject to either side seeking to have them later on Day 7. The judge reminded Ms Andrews about the discussion which had taken place immediately before Mr Carver’s evidence started on Day 6, and pointed out that Mr Patient was in the UK and had been present all day. The judge said that if the Claimant’s representative still wanted 4 hours with Mr Patient, it would be necessary to start with him now.

[94]We then broke until 3.15pm. There was about an hour of cross-examination until 4.15pm, followed by a brief discussion about whether submissions the following day would be purely oral, or a mixture of oral and writing.94.1 The Claimant’s representative said it would be a mixture of both and that she anticipated that Mr Patient’s cross-examination would finish by 10.45am.

94.2 The Respondent's representative also said it would be a mixture of both.

94.3 We said that given the witness evidence was now predicted to finish by 11am, we could have the discussion then about the precise arrangements / timings for circulating the written submissions, and for the oral submissions to commence.

[95]On Day 7, the Claimant’s representative informed the panel that, in fact, she had her medical appointment at 11.05am and it required her to leave the hearing at 10.45am. She expected that would be enough time for Mr Patient’s oral evidence to be concluded. She expected to be ready for oral submissions at 2pm.

[96]We said that, in that case, we needed to decide when the written submissions would be sent to the Tribunal and the other side. Ms Andrews said she could do that by 1pm and Ms von Wachter agreed that she could do it by then too.

[97]Mr Patient’s evidence finished on time, and at 10.45am we reiterated that the parties were to send the submissions by 1pm. We stated that we would commence oral submissions at 2.15pm. Ms Andrews asked to start at 2pm, and we said “no”, 29 of 140 2.15pm was better because we wanted to read the submissions first (notwithstanding Ms Andrews’ comment that she did not think that was necessary).

[98]It turned out that our estimate had judged it perfectly. The Claimant’s submissions were sent to the Tribunal at 1.19pm and the Respondent’s were sent at 1.33pm. At 2.15pm, we were just coming to the end of reading them, and, having completed the reading, we recommenced the hearing at 2.19pm.

[99]Having heard each side’s comments on list of issues, and on the Claimant’s further application to amend the claim to add in a second allegation of harassment, and having taken a break to deliberate, we gave our decisions with reasons finishing just before 4pm.

[100]We stated that we would hear oral submissions from each side, and would aim to finish for the day by 5pm. We said we would hear the Respondent first, and would give each side 30 minutes, and we would be strict about enforcing this time limit.100.1 Ms von Wachter responded by giving details of personal circumstances which required her to be home at a certain time. She confirmed that finishing at 5pm would be sufficient to allow her to do that.

100.2 The Claimant’s representative responded by stating that she was having some video connection issues. We gave her permission to turn her camera off and asked everyone other than the panel and Ms von Wachter to do the same. She made no specific comment about the timetable.

[101]We did enforce the timetable in each case by giving reminders to each representative near to the end of the time, and then stopping them shortly after they had gone over.

[102]Having heard from both sides, the panel made some brief observations about a couple of points in case there was anything that either side needed to correct about our understanding. We then told the parties that we would give the decision with reasons on Day 10, at 10am, and move onto remedy if necessary. The Respondent commented on that, and we advised the parties to liaise with each other in the meantime if they thought that an additional document bundle was needed and/or if there was going to be an application to adjourn for a later remedy hearing.

[103]Day 6 finished at around 5.05pm. The Claimant’s representative request for written reasons

[104]The request for written reasons for the decisions on the claims themselves was made on Day 10, immediately after the judgment was given orally.

[105]On 27 October, the Claimant’s representative wrote, stating: 30 of 140 In addition, the claimants requests written reasons for: 1) The decision to refuse to use the claimants bundle 2) The decision not to reconsider the decision on his own initiative the bundle when the claimant's representative's disability was made clear at the start of the second day and a full day prior to evidence being started and while the respondent still had not provide statements with page numbers fully referenced 3) The decision to refuse to grant the claimant's representative additional time for submissions in line with her request as a reasonable adjustment for her disability

[106]In relation to point 1, the actual decision is the one we described above. It was not a refusal to use the Claimant’s bundle. Our reasons for treating the Respondent’s bundle as the “main” bundle are as stated above.

[107]In relation to point 2:107.1 The word “his” is presumably intended to refer to the panel as a whole. In any event, we deliberated on Day 1 after we had heard submissions, and we gave our decision with reasons.

107.2 In terms of “while the respondent still had not provide statements with page numbers fully referenced”, that is not an issue that we had any way of knowing about. Our version of the statements bundle did have the page references included. It was a surprise to us, on Day 4, when it turned out that Mr Townsend and the panel all had a version of his statement with page numbers, and Ms Andrews had one without. We did not place any obstacle to either side supplying more information about the point. We simply said that unless the Respondent could show that they had sent the versions with page numbers to the Claimant’s side any earlier than the morning of Day 4, we would assume that they had not done so. We ensured that Ms Andrews had had as much time as she needed to consider the page number references after the correct versions were sent to her on Day 4. To their credit, Ms Andrews and the Claimant made no particular fuss about the fact the Respondent had submitted different versions of the statements to the tribunal than those had had been sent to the Tribunal. In fairness to both sides:

(i) the only changes were to add in page numbers where blank spaces had been left for them and

(ii) we did agree to allow the Claimant to use a version of her statement that was different to the one that was exchanged. In any event, the page reference issue was not something that we could take into account on Day 2 because we only found out about it on Day 4.

107.3 In terms of “a full day prior to evidence being started”, it turned out the evidence did not start until 10am on Day 3. However, that had not been the plan. The plan had been to start with Mr Townsend at 12pm on Day 2. 31 of 140

107.4 The Claimant’s representative referred to her disability in the morning of Day 2. Had she thought it relevant to the bundle dispute, she had the opportunity to say so on Day 1 when the application was made. She also had the opportunity to say so on Day 2 if she wished to do so.

107.5 The Claimant’s representative exhibited no difficulty, as a result of disability or otherwise, in navigating any of the documents. On the contrary, she mentioned several times that she had software which enabled her to do so quickly and accurately.

107.6 The Claimant’s representative stated several times on Day 1, after we had said that the Respondent’s bundle would be the main bundle and that the Claimant’s bundle could be used too, that she wanted us to order that particular pages from that the Claimant’s bundle be added to the Respondent’s bundle. As mentioned, we said we did not think that was necessary; as also mentioned above, the Claimant’s representative persisted in the application, and we granted it.

[108]In relation to point 3:108.1 it is unclear what the Claimant’s representative is referring to, other than to the request that the oral submissions commence at 2pm rather than 2.15pm. There was, for example, no application that we postpone oral submissions until Day 8.

108.2 We refused the request to start at 2pm for the reasons that we gave at the time, namely that we wanted to read the written submissions first. We needed all of that time, finishing our reading a minute or two after 2.15pm, then letting the parties into the hearing room as quickly as we could.

108.3 The reason that oral submissions did not get underway until 4pm is that the Claimant had proposed several changes / additions to the list of issues, one of which (we decided) required an application to amend the claim. Had we attempted to deal with list of issues on Day 6, instead of starting with Mr Patient’s evidence, then that would not have helped the timetable. On the contrary, Mr Patient’s evidence would not have started on Day 6 and then would not have finished, on Day 7, before Ms Andrews had to leave for her medical appointment.

108.4 The reason that the submissions had to finish by 5pm is that we considered that was an appropriate latest time to end the hearing day. We had decided this before we heard Ms von Wachter’s reasons for not being able to attend much later than 5pm, but even without specific reasons from one of the participants, the panel has to factor in its own members’ health and well being, that of the parties and that of the representatives, as well as the fact that it is unfair to the hearing clerk to unexpectedly sit much later than normal. 32 of 140

108.5 Thirty minutes each was, in any event, the time scale we had floated earlier in the hearing, and is what had been mentioned in paragraph 16 of EJ Tobin’s case management summary. The Law Equality Act 2010 (“EQA”)

The Law

[109]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[110]It is a two stage approach.110.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.

110.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur.

[111]In Efobi v Royal Mail Neutral citation:

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong Neutral citation:

[2005] EWCA Civ 142

and Madarassy v Nomura International Neutral citation:

[2007] EWCA Civ 33

. 33 of 140

[112]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.

[113]The burden of proof does not shift simply because, for example, the Claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.

[114]It does not necessarily have to be a great deal more: Deman v Commission for Equality and Human Rights

2010 EWCA Civ 1279

. For example - depending on the facts of the case - a non-response from a respondent, or an evasive or untruthful answer from a respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation of the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services.

[115]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors

[2022] EAT 68

and of the fact that several subsequent EAT decisions have cited those comments with approval.

[116]As per Essex County Council v Jarrett

[2015] UKEAT 0045/15

/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.116.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation.

116.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust

[2024] EAT 17

116.3 It just means that we assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. 34 of 140 EHRC Codes

[117]By virtue of section 15 of the Equality Act 2006, the Tribunal should take the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice into account. The EHRC has published both an Employment Statutory Code of Practice and a supplement to it. Time Limits for EQA complaints

[118]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it

[119]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks (

[2002] EWCA Civ 1686

;

[2003] ICR 530

); Lyfar v Brighton and Hove University Hospitals Trust

[2006] EWCA Civ 1548

. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents: Aziz v FDA

2010 EWCA Civ 304

. The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed.

[120]A crucial distinction is between – on the one hand – an invariable rule which will inevitably result in a discriminatory outcome each time and – on the other hand – a discretionary decision made under a policy, in which the discretionary decision may sometimes result in an employee getting the desired outcome, and sometimes not. In the latter case, the discretionary decision causes the time to run (for a 35 of 140 complaint based on that decision), regardless of arguments about whether the policy itself is discriminatory.

[121]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors.

[122]The Tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike, say, the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it is wrong to interpret it as if it contains such a list. A tribunal can consider the list of factors specified in s 33(3) of the Limitation Act 1980, but if it does so, should only treat those as a guide, and not as something which restricts its discretion.

[123]The factors that may helpfully be considered include, but are not limited to:123.1 the length of, and the reasons for, the delay on the part of the Claimant;

123.2 the extent to which, because of the delay, the evidence is likely to be less cogent than if the action had been brought within the time limit specified in Section 123;

123.3 the conduct of the Respondent after the cause of action arose, including the extent (if any) to which it responded to requests for information or documents

[124]In particular, it will usually be important for the Tribunal to pay attention to (and, where necessary, make specific findings about) “whether the delay has prejudiced the Respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”: Abertawe Bro Morgannwg University Local Health Board v Morgan Neutral Citation Number:

[2018] EWCA Civ 640

. Harassment – section 26 EQA

[125]Harassment is defined in s.26 of the Act. (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or 36 of 140 (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[126]It needs to be established on the balance of probabilities that the Claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a Claimant to prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.

[127]Section 136 EQA applies and so the Claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts.

[128]The use of the word “or” in s.26(1)(b) (twice) is important.

[129]“Purpose” and “effect” are two different things, and must be considered separately. Where it was the wrongdoer’s “purpose” to do the things listed in s.26(1)(b), then the complaint can succeed even if the conduct did not successfully have that effect. Correspondingly, where the conduct does have the effect described in s.26(1)(b), then the complaint can succeed even if the Respondent (or the person whose conduct it was) did not have the intention of causing that effect.

[130]In Land Registry v Grant Neutral citation

[2011] EWCA Civ 769

, the Court of Appeal said that when considering the effect of the unwanted conduct, and when analysing s.26(4), it is important not to cheapen the words used in s.26(1). Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.

[131]When assessing the effects of any one incident of several alleged acts of harassment then it is not sufficient really to consider each instant by itself. We obviously must consider each incident by itself, but, in addition, we must stand back and look at the impact of the alleged incidents as a whole. 37 of 140 Discrimination arising from disability

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

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

[133]The elements that must be made out in order for the Claimant to succeed are that: there must be unfavourable treatment; there must be something that arises in consequence of the Claimant’s disability; the unfavourable treatment must be because of, in other words caused by, the something that arises in consequence of the disability. Furthermore, the alleged discriminator must also be unable to show either that the unfavourable treatment was a proportionate means of achieving a legitimate aim or, alternatively, that it did not know and could not reasonably have been expected to know that the Claimant had the disability.

[134]The word ”unfavourably” in s.15 is not separately defined in the legislation but should be interpreted consistently with case law and the EHRC Code of Practice. Dismissal, for example, can amount to unfavourable treatment but so can treatment which is much less disadvantageous to an employee than dismissal.

[135]Pnaiser v NHS England

[2015] UKEAT 0137/15

makes clear that, if there was unfavourable treatment, the Tribunal must decide by whom. The Tribunal must then decide what caused that person or persons to subject the Claimant to the treatment in question. That includes making decisions about the conscious and unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the treatment and the “something arising in consequence of disability“ need not be the main or sole reason for the unfavourable treatment but must have a significant (ie more than trivial) influence so as to amount to an effective reason for or cause of it. Having made decisions about what caused the alleged discriminator to act as they did, the tribunal will then have to determine whether the reason or cause is “something arising in consequence of” the Claimant’s disability.

[136]In Risby v London Borough of Waltham Forest EAT 0318/15, the EAT made clear that an indirect connection between the Claimant’s unfavourable treatment and the “something” that arises in consequence of the disability can be sufficient. The EAT decided that the employment tribunal had been wrong to reject the section 15 claim 38 of 140 on the basis that an incident in which the employee lost his temper was unrelated to his disability. On the facts, an effective cause of the loss of temper had been the employer’s decision to hold an event at a venue that was inaccessible to him because of his disability, that loss of temper led to his dismissal, and there was therefore a sufficient connection between the unfavourable treatment (his dismissal) and his disability for the purposes of section 15

[137]When considering what the Respondent knew or could have reasonably been expected to know, the relevant time is the time at which the alleged unfavourable treatment occurred. Thus, where there are different allegations, then the Respondent’s knowledge has to be assessed at the time of each alleged act or omission. For that reason, for example, what the Respondent knew (or could have been expected to know) at the time of a dismissal might be different than what it knew (or could have been expected to know) at the time of an appeal hearing.

[138]The complaint will not succeed if the Respondent is able to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The aim relied upon should be legal, should not be discriminatory in itself, and must represent a real objective consideration. Business needs and economic efficiency may be legitimate aims, but simply demonstrating that one course of action was less costly than another is not likely to be sufficient.

[139]In relation to proportionality, the Respondent is not obliged to go as far as proving that the discriminatory course of action was the only possible way of achieving the legitimate aim. However, if there are less discriminatory measures which could have been taken to achieve the same objective then that might imply that the treatment was not proportionate.

[140]It is necessary for there to be a balancing exercise which takes into account the importance of the Respondent achieving its legitimate aim in comparison weighed against to the discriminatory effect of the treatment. Regardless of whether the Respondent carried out that balancing exercise at the time (and it is not necessary for the Respondent to prove that it did), the tribunal carries out its own balancing exercise - based on the evidence presented at the hearing – in order to decide if the section 15(1)(b) defence succeeds.

[141]If a Respondent has failed to make reasonable adjustments which could have prevented or minimised the unfavourable treatment, then it is going to be very difficult for the Respondent to show that the treatment was a proportionate means of achieving a legitimate aim.

[142]The Tribunal must consider whether less severe measures might have been available and, if so, whether the Respondent has shown that the defence still succeeds despite the availability of such less severe measures. 39 of 140

[143]In a claim based on section 15 EQA, where sickness absence is the “something arising”, the impact on the employer of a continuing long-term absence must be shown to be a significant element in the balance that determines the point at which the treatment becomes justified. Sometimes, it may obvious that the impact is severe but other times it will be less evident, and the employer will need to give specific evidence of the difficulty caused by the absence.

[144]Because it is a balancing exercise, and because a dismissal potentially has very severe consequences for a disabled employee, the factors necessary to persuade a tribunal that the defence succeeds in relation to a dismissal decision are likely to have to be more weighty than those which might be sufficient to justify some treatment that was short of dismissal (such as a warning, for example). See, for example, Gray v University of Portsmouth EA-2019-000891.

[145]However, each case will turn on its own facts, and the Tribunal must take into account everything which is relevant, based on the evidence presented by the parties. The approach to the balancing exercise discussed by the Court of Appeal in Hardys & Hansons Plc v Lax

[2005] EWCA Civ 84

, a case dealing with section 19 EQA, is appropriate when considering section 15 EQA as well.

[146]In Buchanan v Commissioner of Police of the Metropolis

2017 ICR 184

, the EAT considered an attendance management procedure. The Claimant had a disability which caused her to be absent. Pursuant to the statutory procedure for police officers, the Claimant was issued with notices requiring her to work when, as the Respondent knew, or ought to have known, she incapable of doing so because of her disability. The EAT decided that the fact that the Respondent might be able to justify the existence of the policy as a whole is not necessarily sufficient. While there are some cases (brought under section 15) which turn on whether the policy itself can be justified, in many cases, including the one the EAT was dealing with, it is the treatment of the Claimant which must be justified (that is, found to be a proportionate means of pursuing a legitimate aim). 48. In my judgment it will be rare in disability cases concerned with attendance management for the approach in Seldon to be applicable. This is because generally speaking the policies and procedures applicable to attendance management do allow (adopting the words of Elias LJ quoted by Baroness Hale in Seldon ) for a series of responses to individual circumstances. And this is in keeping with the purpose underlying disability discrimination law. It is to secure more favourable treatment for disabled people and it requires employers to assess on an individual basis whether allowances or adjustments should be made for them: see Griffiths at paragraphs 15 to 16.

[147]The reference to “Griffiths” is to Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

, one of those cited by the Claimant’s representative, and, as we have said above, we have taken all the cases cited by either side into account. 40 of 140

[148]Section 136 EQA applies to alleged contraventions of section 15 EQA. Failure to make reasonable adjustments,

[149]Section.20 defines the duty. S.21 and schedule 8 also apply. 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The ﬁrst requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature 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.

(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.

(6) Where the ﬁrst or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. 21 Failure to comply with duty (1) A failure to comply with the ﬁrst, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the ﬁrst, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. Schedule 8, Part 3, paragraph 20: Lack of knowledge of disability, etc. 41 of 140 (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the ﬁrst, second or third requirement.

[150]The expression “provision, criterion or practice” (usually shortened to “PCP”) is not expressly defined in the legislation. We have regard to the guidance given by EHRC to the effect that the expression should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, pre-requisites, qualifications or provisions.

[151]The Claimant must clearly identify the alleged PCPs to which the adjustments should have been made. The tribunal must only consider those PCPs as identified. See Secretary of State for Justice v Prospere

[2015] UKEAT 0412/14

/3004.

[152]An expectation that employees ought to behave in a certain way, and that doing otherwise would be frowned upon, can potentially be sufficient to show there is a PCP, even if the employer did not enforce the expectation by any formal sanction.

[153]It is also important to distinguish between the application of a PCP and any adjustment that may be in place to ameliorate the effect of it on the Claimant. If adjustments have been made for the Claimant, that does not, in itself, prove that there was no PCP.

[154]In Nottingham City Transport Ltd v Harvey

UKEAT/0032/12

, the EAT held that the word practice has something of the element of repetition about it, and if related to a procedure, should be applicable to others as well as the complainant. As per Ishola v Transport for London

[2020] EWCA Civ 112

, one off decisions made for individual employees might demonstrate that there is a PCP, provided the Tribunal is satisfied that there is sufficient evidence that the employer would take a similar approach in the future.

[155]In Onu v Akwiwu; Taiwo v Olaigbe

[2016] UKSC 31

, the Supreme Court pointed out that a PCP must apply to all employees, or all employees in a subset at least, and that a practice of mistreating workers specifically because of a protected characteristic, or something closely connected to the protective characteristic, would not fall within the definition of PCP because it would necessarily not be applied to others.

[156]When considering whether there has been a breach of s.21 we must precisely identify the nature and extent of each disadvantage to which the Claimant was allegedly subjected. Furthermore, we must consider whether there is a substantial disadvantage when the relevant alleged PCP is applied to the Claimant in comparison to when the same PCP is applied to persons who are not disabled. 42 of 140

[157]The Claimant has the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred that the duty may have been breached. If she does then we need to identify the step or steps (if any) which the Respondent could have taken to prevent the Claimant suffering the disadvantage in question, or to reduce that disadvantage. If there appear to be such steps, then the burden is on the Respondent to show that the disadvantage could not have been eliminated or reduced by such potential adjustments or, alternatively, that the adjustment was not a reasonable one for it to have had to make.

[158]The Tribunal should take into account everything that is relevant when assessing reasonableness. The EHRC Code provides some guidance and examples. The type of factors that can be looked at include, but are not limited to:  the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step)  the extent to which it was practicable for the employer to take the step  the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities  the extent of the employer’s financial and other resources  the availability to the employer of financial or other assistance in respect of taking the step  the nature of the employer’s activities and the size of its undertaking

[159]If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question), this will be a relevant consideration in deciding whether it is reasonable to make that adjustment. Paragraph 6.27 of the EHRC Employment Code states that suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise.

[160]In General Dynamics Information Technology Ltd v Carranza

2015 ICR 169

, the EAT, commented that if an employee is absent due to sickness, and if no “step” can be identified (other than refraining from dismissal) that would enable a person to retain employment, then it may be more appropriate for the alleged discrimination to be considered under section 15 rather than section 21 EQA, because the identification of a “step” which would (enable the employee to return to work and) remain in employment is a key ingredient of a reasonable adjustment claim. These remarks were endorsed by the Court of Appeal in Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

[161]There is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the Claimant had the disability. 43 of 140

[162]Furthermore, in relation to a particular disadvantage, there is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the PCP would place the Claimant at that disadvantage. Dismissal

[163]Section 39 EQA makes it a contravention of EQA if (amongst other things) an employer discriminates against an employee. Dismissal is expressly covered under section 39(2)(c) and section 39(7) reads, as far as is relevant: (7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.

[164]For the unfair dismissal claim, the Claimant relies on section 95(1)(c) of the Employment Rights Act 1996 (“ERA”) to establish that she was dismissed. It reads: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

[165]Section 95(1)(c) ERA and section 39(7)(b) EQA refer to something colloquially known as “constructive dismissal”. In order to prove constructive dismissal the employee must prove165.1 that the employer has committed a serious breach of contract and

165.2 that the employee resigned because of that breach (or at least partly because of that breach; it does not necessarily have to be the only reason) and

165.3 that the employee must also prove they has not waived the breach by affirming the contract.

165.4 In London Borough of Waltham Forest v Omilaju

[2004] EWCA Civ 1493

, the court, at paragraph 14, stated that: The following basic propositions of law can be derived from the authorities: 1 The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp

[1978] 1 QB 761

2 It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between 44 of 140 employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H–35D (Lord Nicholls) and 45C–46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3 Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4 The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively , it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added). 5 A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at paragraph [480] of Harvey on Industrial Relations and Employment Law: “[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.”

[166]The implied term that the employer “shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” is one which the employee can allege was breached by a single incident or by the cumulative effect of different treatment.

[167]“Last straw” arguments do not do away with the need for the employee to establish that there has been a fundamental breach of contract, but are significant when considering – based on the specific incident which caused the employee to resign – whether the employee resigned because of the fundamental breach.

[168]The last straw might be relatively insignificant, but it must not be utterly trivial. An entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely but mistakenly interprets the act as hurtful.

[169]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

, the Court of Appeal clarified the analysis in Omilaju and added to it. It reiterated that the last straw doctrine is only relevant to cases where the repudiation relied on by the employee takes the form of a cumulative breach and that the last straw doctrine does not have any application to a case where the alleged repudiation consists of a one-off serious breach of contract. 45 of 140

[170]In Kaur, the Court of Appeal made clear that - in a last straw case - the fact that the employee might have affirmed a contract after some of the earlier conduct does not mean that it is not possible for the Claimant to rely on that earlier conduct as part of a cumulative breach argument. In paragraph 55 of its decision it summarised the correct approach. 1 What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 2 Has he or she affirmed the contract since that act? 3 If not, was that act (or omission) by itself a repudiatory breach of contract? 4 If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation ...) 5 Did the employee resign in response (or partly in response) to that breach?

[171]Where the answer at point (4) is “no” (for example the act that triggered the resignation was entirely innocuous), it is necessary to go back and see whether there was any earlier breach of contract that has not been affirmed, and which was a cause of the resignation. See Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT 0108/19.

[172]In considering whether a contract has been affirmed after a breach, it is necessary to have regard to the entirety of the circumstances. A gap in time between the act relied on and the resignation is a significant factor but it is by no means the only factor; in other words, a delay is not necessarily fatal to the employee’s argument for constructive dismissal. The reasons for the delay would be relevant as would consideration of what had happened in the intervening period, such as was the employee working and receiving pay amongst other things.

[173]Where an employee succeeds in the argument that there was a constructive dismissal, then the dismissal “reason” is the employer’s reason for the conduct which caused the employee to treat themselves as dismissed.

[174]It is open to an employer to argue that the dismissal was for a potentially fair reason and was, in all the circumstances, a fair dismissal.

[175]Section 98 of the Employment Rights Act 1996 (“ERA”) deals with fairness. In this case, the Respondent denies that the Claimant was dismissed, but does not seek to argue that, if we decide that there was a dismissal, it was a fair dismissal.

[176]In considering discriminatory dismissal arguments, we must take care not to conflate tests for whether a dismissal was a breach of the Equality Act with tests for whether the dismissal was unfair contrary to the Employment Rights Act. 46 of 140

[177]Not every tortious act amounts to a repudiatory breach of contract. Even if a tribunal finds that an employee suffered an act discrimination and that they resigned in response to that incident of discrimination, it would be an error of law to decide that such conclusions must mean that a decision that there was a constructive dismissal automatically follows. Amnesty International v Ahmed

2009 ICR 1450

, EAT.

[178]In this case, the repudiatory breach relied upon is that there was an alleged breach of the term requiring trust and confidence (and, as discussed above, any breach of that term will be a repudiatory breach). If the Tribunal decides that that term was breached, and that the Claimant resigned in response to that breach, and it has also decided that some (or all) of the conduct that caused that breach amounted to discrimination, then it follows that the (constructive) dismissal was a contravention of section 39(2)(c) EQA. The findings of fact

[179]These the findings of fact are all unanimous, and have been decided on the balance of probabilities. We do not find it necessary to list every single undisputed fact. Where there has been a dispute between the parties about any fact, we have only resolved that dispute where we think it necessary to do so.

[180]The Respondent is in charge of a police force (”the Force”), and appoints numerous police officers (of various ranks) to perform policing duties. The Respondent also employees civilians. The Force has a large number of officers and employees and has various building and offices at numerous locations around the county of Hertfordshire. The site at which the Claimant worked was known as “Head Quarters” and had around a dozen buildings, some single storey, and some with more than one storey. The buildings on that site included various offices of various sizes. Some were set up to have a single work station, and some had several work stations.

[181]The Claimant worked for the respondent from 25 September 2017 until 26 January 2022. On that date, she sent the email [Bundle 1137] which terminated her employment with immediate effect; she alleges that it was a constructive dismissal, and the Respondent alleges that it was not, and was simply a resignation.

[182]The Respondent operates a Force Communications Room / Force Control Room (“FCR”). At the relevant times, Superintendent Ken Townsend (“Mr Townsend”) was Head of Department for the FCR. He held that position from January 2019 until March 2022. He had the overall responsibility for the management of the FCR, including budget (circa £17 million per year), staffing (approximately 380 people) and performance management. 47 of 140

[183]There was an FCR Manager, Vanessa Green, who reported to Mr Townsend. There were 3 assistant managers: Andrew Cook, Richard Wilde and Jo Bishop (“Ms Bishop”). Of these four, only Ms Bishop has given evidence. The 3 assistant managers had the same job description and were, in principle, interchangeable, with each carrying out the full role. In practice, they each had been allocated some aspects of the role for which they took prime responsibility.

[184]There were various teams within FCR. Dan Carver (“Mr Carver”) was a leader of one of those teams, and his line manager was Sergeant Hannah Regan (“Ms Regan”). Where there is reference in documents to “Oscars” that is a reference to staff at Ms Regan’s rank. From November 2018 until the end of the Claimant’s employment, Mr Carver was the Claimant’s line manager.

[185]The FCR is on the second floor of a building at Head Quarters. It is open plan with room for many work stations. 3 work stations were arranged in an (approximately) semi-circular shape, with the worker sitting inside the semi-circle, facing outwards. Typically, but not in all cases, immediately behind was what might be called the other half of the circle. In other words, another 3 work stations in a mirror image. So 6 workers would be sitting in an approximate circle, each with their back to the centre of the circle. However, the two semi-circles were not joined to each other, and there was enough of a gap between them so that the workers could enter and exit the area. Some of the semi-circular banks of 3 desks did not have another such bank behind them, but rather had a wall behind them, or else just empty space.

[186]The word “pod” was used by people who worked in the FCR. Some people tended to use “pod” to refer to any bank of 3 desks, regardless if part of a circle or not. Some would use it to refer to (as the case may be) the whole of the circle of 6 desks, or else to a bank of 3 by themselves. It was not a word that was precisely defined.

[187]At various times over Mr Carver’s 18 years working in FCR (2006 to 2024), there were various different desk arrangements. For that reason, he cannot be sure of the precise date of the arrangement shown at [Bundle 1190]. However, it was prepandemic.

[188]The FCR operated 24 hours a day. Whereas each worker worked shifts that were shorter than that. Thus there was no expectation that a particular workstation would belong to a single individual, for their exclusive use. On the contrary, the workstations would typically be used by up to 3 different people per day.

[189]Workers did not have a specific desk that they sat at every shift, but rather there was “hot desking”. That is, on arrival, the worker would look for a suitable workstation and sit in it for their shift. 48 of 140

[190]Although, as Mr Carver says, the specific arrangements varied over time, we are satisfied that, between the start of the Claimant’s employment, and the pandemic, the arrangements were that different teams who worked in the FCR had different areas of the room. Therefore, on arrival, a member of the team would look for a vacant workstation in their own team’s area. If there was no such empty space, then they would use a workstation located within another team’s area; this might then be their base for the whole of their shift, or else they might decide to move if a workstation within their own team’s area became free.

[191]The Claimant was employed as a Communications Operator. This role was handling incoming emergency and non-emergency calls. The Claimant was good at the job.

[192]The job included taking distressing or harrowing calls. After such calls, the Claimant found it helpful to discuss the calls she had received with colleagues in the break room (kitchen) or on the balcony which adjoined that kitchen. There was no rule that meant that she could not discuss particular matters and how distressed they had made her feel with her partner or family or friends outside work; however, when doing that, she had to be mindful of data protection and confidentiality issues.

[193]During a call, the Communications Operator might wish to obtain advice from a supervisor. Typically, pre-pandemic, that often involved standing up from their desk and physically walking to where the supervisors were seated, and having a face to face discussion. Because of the shift system, the Communications Operator’s own team leader might not be on duty, and so they would speak to whichever supervisor was available. One such supervisor was Pat Wallace (Ms Wallace) who had worked in FCR since 1999 and had been a team leader since 2003.

[194]From the start of her employment until January 2019, the Claimant only had one day’s sickness absence.

[195]Her absence from January 2019 until the end of her employment is shown on [Bundle 213].195.1 Her father died in January 2019, and she had bereavement leave.

195.2 This was followed immediately by an absence from 31 January to 24 February 2019 which was classified in the Respondent’s records as being “Psychological Disorder: Stress”.

195.3 There was a time back in work followed by an absence from 7 March to 6 May 2019 which was classified in the Respondent’s records as being “Psychological Disorder: Stress”. 49 of 140

195.4 There was an absence from 10 to 15 September 2019 which was classified in the Respondent’s records as being “Psychological Disorder: Anxiety”.

195.5 There was a one day absence in December 2019 and a two day absence in February 2020 for unrelated reasons.

195.6 There was an absence from 27 July 2020 to 12 September 2020 which was classified in the Respondent’s records as being “Psychological Disorder: Anxiety”.

195.7 There were absences for Covid self-isolation requirements between 14 and 26 December 2020 and on 23 January 2021.

195.8 On 28 April 2021, the Claimant commenced a period of absence which lasted for the remainder of her employment. It was classified in the Respondent’s records as being “Psychological Disorder: Anxiety”

[196]The Claimant does not dispute the accuracy of the records. It is common ground that each period classified as either “Psychological Disorder: Stress” or “Psychological Disorder: Anxiety” was an absence connected to the disability which the Respondent has(i) conceded that the Claimant had and

(ii) accepted that it had knowledge of at all relevant times.

[197]The first lockdown announcements, and other government measures, in relation to the Covid pandemic were made towards the end of March 2020. Thus any absences which the Claimant had before then were, in no sense whatsoever connected to Covid, or the Respondent’s arrangements for any of its staff during the pandemic.

[198]The Respondent operates an “Attendance Management Policy and Procedure” (“AMP”), which is referred to at paragraph 4.2 of its “Police Staff Capability - Attendance Policy and Procedure” (“the Capability Procedure”).

[199]AMP defines “trigger points” as follows: Short Term Triggers 4 periods of absence in a rolling 12-month period; or 3 periods of absence in a rolling 6-month period; or a pattern to the absence. Long Term Triggers 28 calendar days or more

[200]The significance of hitting a trigger point is mentioned in paragraph 4.11 of AMP and the differences between the short term and long term triggers is discussed in paragraphs 4.12 and 4.13 respectively. These need to be read alongside the 50 of 140 Capability Procedure, including paragraphs 4.3 to 4.8 which are for “Formal Management Action – Short Term Absences” and paragraph 4.9 to 4.12 which are for “Formal Management Action – Long Term Absences”

[201]Our finding is that there is no inconsistency or contradiction between the AMP and the Capability Procedure.

[202]In terms of the trigger points,202.1 we do not need to address “pattern to the absence”, as that was never used as an alleged reason for holding any meeting, or giving any warning, etc, to the Claimant.

202.2 The short term trigger points were based on numbers of distinct absences, rather than how long each absence was

202.3 The long term trigger point was based purely on the length of one particular absence, regardless of whether there had been any other absences or not and – in terms of deeming that the trigger had been reached - regardless of whether the employee had returned from the absence or remained on it.

[203]Within the Capability Procedure, there is a very clear distinction between the cases to which paragraphs 4.9 to 4.12 apply, and those to which paragraphs 4.3 to 4.8 apply. It was put to the Respondent’s witnesses (Mr Carver, at least) that if a “long term trigger point” was hit, then it followed that paragraphs 4.9 to 4.12 of the Capability Procedure (under the heading Formal Management Action – Long Term Absences) had to be followed. He did not accept that was the case (although he did accept that he had followed HR advice about which process to follow and that, therefore, if the proposition was true, then it was an error by HR).

[204]Our finding of fact is that the AMP and the Capability Procedure plainly do not say that hitting the long term trigger means that the “Formal Management Action – Long Term Absences” automatically applies. On the contrary, that process is followed in the circumstances mentioned in para 4.9.1: In cases of protracted long term absence, where the individual is unlikely to be able to return to the workplace within a 6 month period or there is unlikely to be sufficient recovery from the illness to enable a return to work in the foreseeable future, a sensitive approach will be taken, so for example it may not be appropriate to issue warnings in these circumstances. Long term sick cases are more likely to be complex and as each case is individual, the Manager will need to judge each case on its own merits. A structured process is still required and the procedure for managing long term sickness absences will be through the use of case meetings to understand the latest medical opinion and the prognosis for a return to work.

[205]The process in paragraphs 4.3 to 4.8 is the one that - according to the policies – is supposed to be followed in other cases. Naturally, and as the documents 51 of 140 specifically comment on, there may come a time when it is appropriate to cease using the Formal Management Action – Short Term Absences part of the Capability Procedure, and to switch to the Formal Management Action – Long Term Absences instead. However, that point is not reached just because a particular period of absence reaches 28 days. Rather, after that particular trigger point has been reached, there might be a meeting held after the employee has returned to work (if the return was expected to be not long after the absence had reached 28 days) or else one or more meetings might take place during the absence.

[206]For the Claimant’s return to work in February 2019, recuperative duties were arranged for her (in other words, for a temporary period, she was not doing the full range of hours and duties). She commenced a further period of absence before those recuperative duties had ended.

[207]As of the return to work in February 2019, the Claimant had not hit any trigger point. As of her next return, in May 2019, following an absence of around 60 days, she had hit the long term trigger (that is, a period of absence exceeding 28 days).

[208]She was referred for Occupational Health (“OH”) advice on 25 February 2019. Mr Carver stated that the referral reason was [Bundle 1092]: Sian recently suffered the loss of her father and due to the circumstances, had a very stressful time trying to save him when he collapsed at home. Sian is returning to work on restricted ours due to her having to support her mother at this time who has also suffered ill health. Please can you support Sian in any way you can at this difficult time.

[209]He also ticked the box seeking advice and recommendations for “does the person require reasonable workplace adjustments”.

[210]She was seen on 27 March 2019. [Bundle 985]. By this time, she was on sick leave. She was not immediately fit to return, but was predicted to be fit to commence a phased return in 4 to 6 weeks. It was stated: No OHU review required unless is not managing phased return to work.

[211]On her return, on 6 May 2019, Mr Carver conducted a Stress Risk Assessment. [Bundle 1129]. It included that the Claimant would work 4 hour shifts, increasing by one hour, if appropriate when reviewed, until back to full-time. She was taken off 999 calls temporarily until 3 June 2019.

[212]Mr Carver placed the Claimant on supportive informal management action (SIMA). The policy states that SIMA has the following purpose, and we accept that this was Mr Carver’s intention at the time: 52 of 140 Where an individual reaches a short-term trigger, the Manager will conduct an Informal Management Action Meeting. The expectation is that everyone who reaches a trigger point for short-term absence will be issued Supportive Informal Management action (SIMa) and will have their attendance monitored over a specified monitoring period. The SIMa is not intended to be a punitive action, but rather as a means of identifying and providing support, where required, to the individual, to enable regular attendance.

[213]As a result of the SIMA, the Claimant was on extended recuperative duties from 6 May 2019 until 16 August 2019.

[214]The Claimant’s next absence, 10 to 15 September 2019, caused Mr Carver to issue another SIMA.

[215]The Claimant had a further absence (not disability-related) in December 2019. This caused her to hit the “4 absences in 12 months” trigger. It was also during the monitoring period (of 3 months) from the SIMA issued around 23 September 2019.

[216]Mr Carver decided to deal with this under the formal short term absence procedure. The Capability Procedure states: 4.3. Formal Action 4.3.1. Where the required improvement in attendance has not been made or sustained following informal management action, appropriate formal action will be considered, with HR providing support and advice. The process is designed to be progressive with each stage building on the action taken at the earlier stage(s) where the required improvement has not been made, therefore stages should not be skipped. Referrals to OHU may be made at any point in the process and must be considered prior to any meeting at which dismissal is a possible outcome. 4.4. Stage 1 – First Stage Formal Meeting 4.4.1. The Manager will inform the individual that they are required to attend a Stage 1 Formal Meeting and confirm this in writing, (using templates from the Manager’s Guidance Document, no later than 10 calendar days prior to the meeting.

[217]This First Stage Formal Meeting took place on 4 February 2020. [Bundle 256] is a pro forma which includes standard text and also the specific details of what was discussed in the meeting. As stated in both the pro forma and the Capability Procedure, the possible outcomes of the meeting were: First Stage Meeting: - No further action - Further informal action (Supportive Informal Management action – repeat in exceptional circumstances only) - First Written Warning 53 of 140

[218]Mr Carver decided to take no further action, and we accept that his reasons were genuinely those stated in his witness statement and in the contemporaneous document, including: Sian has had a really tough time outside of work and this has affected her ability to come into work. I find it completely understandable for Sian to take time off following the death of her father – Sian may have taken a lot of time off but everyone deals with grief differently and I do not feel it appropriate to take any formal action against Sian. Prior to Sian’s dad passing away, Sian had only ever had one absence for Flu in March 2018. I feel that Sian should be given the chance to improve her attendance and that hopefully there should not be any further issues with attendance. My decision is to take no further action against Sian. Sian is aware that I will monitor her attendance as usual and I have encouraged her to contact me if she is struggling – I have agreed that we can always amend her workload if she is having a bad day to ensure she comes into work.

[219]Under further action, it was noted, amongst other things: Sian is expected to make an improvement in her attendance and I will review this with Sian in 3 months’ time.

[220]The Claimant was off sick for 2 days in February, for a genuine reason, but not connected to disability. This again meant that she had hit a tigger: 4 absences in a rolling 12 months. Mr Carver placed the Claimant on a further SIMA on 10 March 2020. He did not instigate a further formal Stage 1 meeting.

[221]Before the end of that monitoring period, the pandemic had hit.

[222]As stated by Mr Townsend, in paragraphs 4 and 5 of his statement, and as we find to be the case: 4 … Operation Bullrush was the Hertfordshire Constabulary response to the pandemic and subsequent lockdown regulations. The early Gold Commander (Senior Officer in Charge) representing the Constabulary was Assistant Chief Constable Nat Briant. Within the early meetings an initial strategy was developed and ratified by Mr Briant that would shape the direction with which the organisation would seek to deal with the pandemic. Of specific relevance was a decision that three key areas of policing were deemed as essential to business continuity. These were maintaining the functions of the Force Control Room, Intervention (Response) Policing, and our Custody Suites. [Mr Townsend’s] future decision making in relation to the pandemic would be born out of a necessity to protect colleagues' lives whilst supporting these force wide objectives. 5. … these three areas of operational business were prioritised above all others. Both Police Officers and Police Staff Colleagues that were employed within these departments were required to continue to attend the workplace throughout the pandemic. There was tremendous national uncertainty at this time. Various worldwide 54 of 140 reports focussed upon alarming death rates. Home Office and other UK based health related guidance at the time, was fast paced and ever changing. …

[223]It was Mr Townsend’s genuine opinion at the time, and it is still his genuine opinion in 2024 that: … in order to maintain the vital public service that the Force Control Room delivered, it would need to be managed against a backdrop of enormous risk to all [his] colleagues. and that he needed to make … numerous decisions relative to the running of the FCR, each and everyone, focussing upon the delivery of public safety and service, balanced with the care and welfare of [his] colleagues.

[224]A risk assessment was done. A version of the “MTRA” document “Working safely during Covid-19 – police premises (offices, common areas, police stations etc)” for the FCR [Bundle 305 to 330] was created. The version in the bundle is “version 6” and is dated 23 December 2020. [Bundle 329 says it was reviewed 16 June 2020, so version 1 was no later than that. It was, as it says, a “living document" that was reviewed regularly. It was available to staff to access and view via a Sharepoint site. Version 6 shows the dates of various updates (for example, 29 July 2020 for screens) and later for mask wearing. We accept that the document shows the employer’s genuine opinions about the risks which existed and that it took the risks seriously. The risks that were perceived to exist for FCR staff included(i) the risk of acquiring the Covid virus at work and

(ii) the risk of becoming serious ill or of dying as a result and

(iii) the risk of onward transmission.

[225]It is not necessary or appropriate for us to decide whether the employer was “right” or “wrong” to perceive that such risks did exist. However, we accept that it genuinely did have that belief, and that it genuinely did have the belief that it had a legal obligation to seek to introduce measures to attempt to reduce the risks.

[226]The capacity of FCR was reduced. One measure that was taken was that for each “pod” of 3 desks, the central work station was removed. Furthermore, measurements were taken to ensure that every work station was a minimum of 2m away from every other work station.

[227]Our finding is that the diagram at [Bundle 1195] was the seating plan from some time in 2020. It is consistent with the photos at [Bundle 1196 to 1199] and each party is in broad agreement about what the photos show.227.1 Mr Townsend’s office is bottom right of the diagram (and appears in the photos). 6 sets of pods are in a straight line immediately outside his office, and are marked to be “IMU” (meaning, Investigation Management Unit). On the next row up, there is a further set of 4 pods also marked IMU. 55 of 140

227.2 One of those 10 is marked as “IMU supervisors” and so the colour scheme implies that the rest of the Investigation Management Unit, those who were not supervisors, would sit in a workstation in one of the other 9 pods. (Since each pod was normally 4 desks, but reduced to two, it follows that there was a choice of 18 places available).

227.3 The IRT (incident resolution team) had 2 pods (so 4 workstations) on the second row up from the bottom of [Bundle 1195]. The remainder of that right hand side of the diagram was largely the call handling team (15 pods, not including supervisors). Other teams occupied the pods on the left hand side of the diagram.

[228]The wall represented as a horizontal line at the top of the diagram was external windows, and some pods there eventually had Perspex screens erected around the individual work stations.

[229]On each of the sides of the room represented on the left and right sides of the diagram, there was locker space. Staff were not supposed to take their own belongings, including mobile phones, to the workstations, and were supposed to place them in lockers during the shifts.

[230]There were various doors and entrances into the open plan part of the office, not all marked on the diagram (but some shown on the photos). One way to enter was near to Mr Townsend’s office (bottom right of diagram). On the left hand side of the diagram, near to where the “cleaners” area is marked, was the door which could be used to access a small staff kitchen. The kitchen could be used in turn to access a small open air balcony.

[231]If starting near to Mr Townsend’s office, inside the FCR, then one way to access the kitchen was to walk across the FCR and use the access just mentioned. Another way was to leave FCR, then go downstairs to the ground floor, walk around the building, and then use another flight of stairs to return to the upper floor, and enter the kitchen, without having to walk across the FCR.

[232]At the time of the start of the pandemic, the Claimant was living with her mother who was clinically vulnerable. The national government advice at the time did not require masks, and the Respondent did not require masks.

[233]The Respondent created some “single occupancy pods”, for those that either needed to shield for themselves or because they were carers of, or in close contact with vulnerable people. The Claimant was free to, and chose to, use one of those pods because she was worried about catching Covid at work and passing the virus onto her mother.

[234]As stated in paragraph 4 of Ms Bishop’s statement, and as we find to be truthful and accurate: 56 of 140 Due to the very nature of the work [of FCR, FCR staff were classed as key workers and it was essential for them to go into work. The IT infrastructure and specialist equipment required to carry out the roles meant that it was not practical nor possible to enable the functions to be done from home, particularly answering complex calls and dispatching officers to incidents which are an essential part of the business. … [the need to work in the office] was a case of them being key workers with an extremely complex, demanding role that required specialist equipment to enable them to carry out their roles. The work can be distressing and traumatic at times and close supervisory support is key to support the employee when dealing with incidents of this nature. However, there were staff members who were identified as vulnerable, who could not come into work and therefore were supported in working from home however [managers]] had to review tasks and were extremely limited as to what [they] could give [such staff] to do.

[235]Furthermore, and in any event, the Claimant did not wish to work from home.

[236]In the period March to July 2020, the measures which the Respondent had in place included the desk rearrangements, reducing the number of staff in FCR at any one time, having signage, attempting to enforce social distancing and, as mentioned, allowing the use of “single occupancy pods” for those who required them, including the Claimant.

[237]The Claimant started a further period of absence in July 2020. She believes that the stress associated with the pandemic was a contributing factor. Given that the pandemic had such a massive impact on everyone’s life, it is impossible to try to analyse whether the Claimant would have had this absence if there was no pandemic; however, it also seems common sense, and we accept the Claimant’s evidence, that the pandemic caused stress and anxiety.

[238]It is not our finding that there was anything which the Respondent did, or failed to do, in that period which caused the absence.

[239]The Claimant returned to work in September 2020, and was invited to a First Stage Formal Warning meeting. Prior to inviting the Claimant to the meeting, Mr Carver took HR advice. The Claimant was accompanied by her union representative to the meeting on 23 September 2020. [Bundle 265].

[240]The Claimant had met the long term trigger, because this particular absence had lasted more than 28 days. She had also hit other triggers, as this was the fourth absence in less than 12 months, but the long term trigger was the one mentioned in the meeting notes. Based on the HR advice that he had received, Mr Carver formed the opinion that the previous periods of absence should be discussed in the meeting. As he noted in the pro forma, previous periods of absence had resulted in: 57 of 140 6th May 2019 – Sima issued 23rd September 2019 – Sima issued 4th February 2020 – Stage 1 meeting – outcome: no further action 10th March 2020 – Sima issued

[241]He also wrote, accurately: Sian has been given contact details for EAP to arrange counselling following the death of her father. Sian does suffer from anxiety and has been referred to OHU, most recently on the 11th September 2020. Sian was placed on recuperative duties for 2 weeks upon her return from her latest absence.

[242]The points made by / on behalf of the Claimant included: Sian has said that she feels that the Covid19 situation was not dealt with very well by FCR management and that this affected her anxiety and [the Claimant’s union representative] wanted it known that the Covid19 situation has been a factor in Sian’s anxiety and wanted this to be considered when making a decision.

[243]On the day, Mr Carver informed the Claimant of his decision and the rationale. He then confirmed that in a letter dated 23 September 2020. [Bundle 273]. He issued a “first written warning”. We will discuss the rationale in our analysis.

[244]The Claimant appealed against the outcome promptly. The appeal meeting was on 24 February 2021, chaired by Andrew Cook. [Bundle 333].244.1 The grounds of appeal appear within the hearing notes.

244.2 The Claimant had appealed on the basis that working in the single occupancy pod had caused her stress and that Mr Carver ought to have done, and had failed to do, a stress risk assessment prior to allowing the Claimant to work in that pod.

244.3 The Claimant also appealed on the basis that there had been no adjournment between the end of the discussions in the 23 September meeting, and the outcome being given orally. (A point which is factually accurate).

244.4 Mr Cook accepted that the policy was that an adjournment should have taken place, and stated that he had given advice to Mr Carver on that point. However, he did not accept that the outcome had been pre-determined.

244.5 He stated in his rationale (his emphasis) 58 of 140 My consideration when reviewing this point is the MTRA (Model Task Risk Assessment) that the FCR has been subject to since the start of the pandemic in early 2020 which is regularly reviewed by the Op Bullrush team. This is a live running document which is regularly updated and details all the actions taken by the FCR in order to ensure it is a Covid safe working environment. A key point within this MTRA document that I read out during my summing up of the meeting referred to an action about personal circumstances that may put officers/staff families at greater risk. An update against this action dated 17/3/2020 was – all personal circumstances have been considered and reviewed by management and advice sought from HR and OHU where appropriate. Isolated areas of working with single occupancy pods have been set aside to offer greater protection to those who are concerned about family members who they may reside with who are shielding. Each work station has its own PPE equipment and [signs] explaining it is for single occupancy use. This particular action within the MTRA explains Sian’s situation and illustrates the work the FCR was doing in order to protect staff from March 2020 onwards. I am further aware from the MTRA document that social distancing measures were put in place within the FCR in March 2020 with regards to floor tape and stickers used on the floor within the room to mark out a 2 metre gap. At this time, we also had a satellite FCR running in our fall-back position within Stevenage in order to create two bubbles for the FCR and a number of IMU staff began to work remotely in order to provide more desk space within the room. The FCR has a weekly bulletin that is issued every Friday which contains all relevant updates for staff within one document. Within my summing up in the meeting I advised that looking back at the bulletins I could see that various communications surrounding Covid-19 started to be sent out in the Bulletin from March 2020 onwards. Therefore, I am satisfied the FCR has done everything possible to keep staff safe and also to provide regular updates on what actions were [being] taken. It has been an unprecedented year that the FCR and the rest of the Organisation has had to work through and they have always reacted to any change in government guidelines. The MTRA document reflects all the work that has been carried out in order to make the FCR a Covid safe working environment. As part of this work Sian was able to make use of the isolation pods within the room. It is regrettable that by sitting in these pods this led to further stress and anxiety for Sian having to explain to others why she was sitting there but this was not intentional as the FCR has a duty of care for all staff. It is noted that Sian did not receive direct responses from Senior Management about concerns she was raising, however the weekly bulletin contained a lot of Covid updates from March 2020 onwards, therefore I am satisfied the communications surrounding the Pandemic were communicated as well as they could be during what was an ever-changing environment. Further consideration made with regards to Sian’s Stress Risk Assessment (SRA) not being reviewed prior to Sian’s sickness absence in July 2020. It was evident during 59 of 140 the meeting that Dan and Sian have a good working relationship and that Dan as first line manager provides the required support in his role. However, an action was given to Dan to review Sian’s SRA with immediate effect and ensure this is continually reviewed as a living document to capture any concerns Sian may have in the future.

[245]Everything that is written there is consistent with the evidence that we have received. In particular, we accept that bulletins were being circulated, and that the MTRA was available for staff to view. At the very least, it demonstrates that the Claimant was expressly told about the MTRA and (some of) its contents. Furthermore, although not expressly stated there, it is our finding that there was no requirement placed on the Claimant by Mr Carver or any of the Respondent’s staff that she had to use the single occupancy pod.

[246]Our finding is that the reason that the Respondent created those pods was to seek to reduce the risk from the Covid virus to those staff who had particular vulnerabilities (their own, or their family members). The Respondent had a genuine belief (whether rightly or wrongly) that Covid did represent a risk of serious injury or death. Staff had the opportunity, but not the obligation, to use the single occupancy pods.

[247]The outcome (to reject the appeal) and the hearing notes were sent to the Claimant by letter dated 26 February 2021 [Bundle 337].

[248]Mr Carver did a stress risk assessment on 13 September 2020 (comments in black), reviewed it on 9 November 2020 (additional comments in blue), and reviewed it again on 27 February 2021 (additional comments in red). In each case, the review took the form of a discussion with the Claimant [Bundle 339 to 344]. In November 2020, it was noted that the Claimant had spoken to Ms Bishop with concerns about how the mask policy (and exemptions) had been publicised and by February 2021, the Claimant was a member of the Staff Council.

[249]The mask policy was announced in October 2020.

[250]On 16 October 2020, Mr Townsend sent an email [Bundle 280]. This went to all FCR staff including the Claimant. Colleagues, The below communication will be released onto the intranet at 1400 today. It outlines new Covid measures to be adopted in the FCR from 0700 Monday 19th October. Whilst this will also be detailed in the Bulletin later today, I wanted to personally brief you ahead of the wider circulation across the Constabulary. Change to Covid safety measures for FCR From Monday 19 October, new Covid-19 safety measures are being introduced to the Force Control Room (FCR) at police headquarters. 60 of 140 All staff and officers will be required to wear face coverings when walking around the top floor of OSB. “The FCR is both a unique location and provides a critical function and, after much consideration, we are making these changes to make the FCR environment even safer,” explained Chief Superintendent Matt Nicholls, Op Bullrush Gold commander. “While other departments can limit the number of people in each day with homeworking, for example, FCR Call Handlers and Radio Controllers have few opportunities to agile work. We have already made many adjustments, spacing staff out, maintaining social distancing and enhancing hygiene measures to be Covidsecure and we are now introducing extra steps, similar to those now operating in pubs and restaurants, as part of a belt and braces approach.” A further 700 face coverings are being distributed to the FCR team and the changes take effect from 7am on Monday. In addition, Access Control will be removing access for all non-essential staff into the room. There is no requirement to wear face coverings when sat at desks. Matt added: “All department heads are continuously reviewing risk assessments to protect their teams from the risk of coronavirus. Please talk to your line manager in the first instance if you have any concerns.” You can find the Covid-19 General workplace guidance on iQuery. From the above time and date face coverings will be worn in the FCR, however they do not need to be worn whilst seated at your desk or if working at any desks within the perimeter offices. This instruction is similar to the guidance for restaurants, bars, etc. All staff in the FCR have previously been issued with face coverings already, however we have received additional stock for further personal allocation. Of course you can opt to wear your own face covering (including a face shield if desired). In addition there will be a supply of disposal masks also available. Face coverings should not be confused with PPE, the FCR is not an area deemed as needing PPE. Should the wearing of a face covering for the minimal time instructed be of individual concern, please raise the matter with your team leader accordingly. I would also like to advise you that a survey of the FCR has been carried out and we are also looking to install Perspex screens across the FCR and in the downstairs rest area as additional measures. The probable lead time for this is 2/3 weeks. New signage will be placed on the two exit/entrance points and we will effectively be ‘locking down’ the FCR to access only for those who work in our environment. No-one is to be permitted access to the FCR without a face covering and without previous authority to do so by either a member of the SMT or the Oscars (i.e. scheduled ICT visits, etc). Access Control have been informed and will restrict access accordingly. New signage will also be on the desks clearly identifying those that can be used and those that can’t, as well as prompts to clean down the position which should be carried out by you before and after use. We will also refresh the floor tape and spacing stickers. Discussions have taken place regarding splitting the FCR between HQ and Stevenage, but at this point the preference is to adopt the above measures first. 61 of 140 We appreciate that some of these measures may cause some of you addition concerns. However these additional measures are being carried out to ensure, as best we can, that your work environment is as Covid safe as possible following all the recommended guidelines, in turn protecting us all and your extended families. Many thanks for your continued support, please do not hesitate to raise any questions or concerns.

[251]The bulletin mentioned in that email, [Bundle 282], included the following (our emphasis): Colleagues, hopefully you will have all now read my email outlining the new Covid measures being introduced into the FCR from Monday 19 th October. I hope the process is clear for everyone but essentially, we are asking you all to ensure you wear a face covering when you are not sat at your desk. This does not stop you from adhering to all other Covid safe measures expected, such as social distancing. Those who feel that they are unable to wear a non-PPE face mask (similar to the ones we have supplied) for the short periods of time required, should be mindful that we are requiring the wearing of a face covering, as such there may be other suitable coverings that you can use, for example a face shield. If you feel you are unable to comply then please discuss your case with your team leader and Oscars. Please remember these measures are in place to enable you to protect yourself and in turn your colleagues and we all have a part to play. Thank you.

[252]Our finding is that the Claimant had access to the bulletin. It is also our finding that the email and bulletin between them explained both Mr Townsend’s thought process and acknowledged exemptions. We are satisfied that what Mr Townsend wrote in each document represented his genuine opinion about the risks, and about the potential that the mask policy might help manage the risk.

[253]The MTRA included, accurately: Update 22/10/2020 – Introduction of Face Coverings as of 0700 19/10/20. Face coverings can be removed whilst seated at your desk but must be worn when moving around the department. New signage added to entry and exit points with clear instruction of no entry to anyone who does not work in the FCR and no entry without a face covering. Only authorised access by SMT or Oscars for any non-FCR staff. New sticker signage on all desks indicating those that can be used and those that cannot due to social distancing. Additional stickers also promoting the requirement to clean the workstation before and after use.

[254]It also accurately included: From 7am on Monday 9 November all staff and officers must wear a face covering when moving around inside police buildings. There is no requirement to wear a face covering when sat at desks 62 of 140 Anyone who is exempt from wearing a face covering should inform line manager … Officers and staff must continue to social distance and use a mask in line with NPCC PPE guidance. Officers should still wear disposable surgical face masks when conducting face-to-face interviews and in operational situations.

[255]And also: Update 10/11/2020. Face shields now also issued to team leaders and any other persons who request them Noted that they are not PPE but are in line with the face covering ‘standards’ not requirement at this stage for PPE.

[256]An email to all staff was sent on 6 November 2020 [Bundle 1209]. Our emphasis is added: Face coverings directive The health and wellbeing of our workforce is our top priority and to help reduce the spread of coronavirus, we are introducing a requirement for face coverings to be worn in the public areas and corridors of our police estate. From 7am on Monday 9 November all staff and officers must wear a face covering when moving around inside our buildings. There is no requirement to wear a face covering when sat at desks. Officers and staff in our Force Control Room (FCR) at headquarters have been following this rule for a number of weeks without issue. Anyone who is exempt from wearing a face covering is asked to let their line manager know and if you have any other concerns, please speak to your line manager in the first instance. Officers and staff must continue to socially distance or use a mask as you have been in line with NPCC PPE guidance, wearing disposable surgical face masks when conducting face-to-face interviews and in operational situations. This decision has been agreed across all the three forces and will be reviewed at the end of lockdown. If colleagues prefer they are free to start wearing a face covering with immediate effect rather than waiting until Monday. Do not touch the front of your face covering during use, as per national guidance, and wash after use wearing a clean one daily. If colleagues see someone not wearing a face covering in areas where they are required they should broach the subject sensitively. Some colleagues may have health conditions that exempt them from wearing face coverings and not all will wear a lanyard drawing attention to this. Authorised by Chief Superintendent Matt Nicholls, Op Bullrush Gold commander 63 of 140

[257]Our finding is that the Claimant received the email. Our finding is also that it was clear to anyone reading the email that it was being claimed that this was a health and safety measure, and claimed that it was not unique to the Force, let alone to FCR, and that it was clear that it would be reviewed, and that it was clear that(a) exempt staff did not need to wear a mask and

(b) staff were instructed to be aware of the existence of exempt staff if querying someone’s lack of a mask.

[258]Promptly after the policy was announced, the Claimant spoke to Mr Carver, who emailed Ms Bishop on 17 October 2020: I have spoken with Sian Clayton this evening who advises that she is exempt from using a face covering due to her anxiety. Sian has a lanyard that she will be wearing that clearly says that she is exempt.

[259]Ms Bishop’s reply (19 October) was: Can you confirm if Sian has read the bulletin and understands that there are other alternatives to wearing a mask such as a scarf, snood, clear visor etc? If she is not going to be wearing any type of face covering we may have to request she works in the MICR, however after her previous concerns around feeling isolated this may in itself be a cause for concern. If you could try and ascertain if there is any alternative means for Sian in the first instance and if she feels she cannot oblige then I will refer this back to management for a further review.

[260]Mr Carver wrote back (22 October) stating: Sian is not comfortable wearing any kind of face covering. I do not want Sian to be working on her own in the MICR as I believe this will be detrimental to her mental health.

[261]Ms Bishop’s reply included the following: I appreciate Sian’s reason for not wishing to wear a face covering and due to the condition she has mentioned and based on Government guidance she would likely be exempt from wearing one. The issue around not wearing a covering is not the risk to the individual but to others as explained in the Government guidance below. I understand your comments in relation to Sian working in the MICR so with this in mind and our responsibility for the duty of care of all our employees I will refer this matter back to Supt Townsend and Vanessa Green for review.

[262]She copied in Ms Green and Mr Townsend, and included an extract from the guidance that she was referring to, which included: 64 of 140 The best available scientific evidence is that, when used correctly, wearing a face covering may reduce the spread of coronavirus droplets in certain circumstances, helping to protect others. Because face coverings are mainly intended to protect others, not the wearer, from coronavirus (Covid 19) they are not a replacement for social distancing and regular hand washing

[263]Regardless of whether those paragraphs from the guidance are scientifically accurate or not, we accept that each of Ms Bishop and Mr Townsend thought that it was reasonable to rely on government guidance and, furthermore, that ignoring the advice might not be an appropriate method of carrying out their health and safety obligations to staff.

[264]On 23 October, Ms Regan also asked Mr Carver to speak to the Claimant to explore options with her. Since this was a response to Ms Bishop’s first email, it is unclear whether she had read the later items in the email chain. However, it is likely that she had not, since she referred to the possible need to refer the matter to Green and Townsend, which Ms Bishop had already done the previous day.

[265]In any event, the Claimant was not copied in on these emails at the time. She was not instructed that she had to wear any form of face covering (including a scarf or a face shield) and neither Mr Carver nor anyone else sought to argue to her that she did not have a genuine reason to be exempt.

[266]Around 23 October 2020, during her shift, the Claimant approached a supervisor, Pat Wallace to ask a question. Ms Wallace asked the Claimant where her mask was. The Claimant held up her lanyard and said she was exempt. Then the Claimant asked her questions, and Ms Wallace answered them, and the Claimant returned to her desk.

[267]The Claimant had applied to become part of a team called CIRT (Crime Investigation Reporting Team). [Bundle 1203]. The Respondent intended to run this as a trial, to decide whether to permanently implement it. A period of 6 months was mentioned as being the trial period, at the start of the project. (As discussed by Mr Carver and the Claimant in the stress risk assessment meeting on 7 November 2020). However, there was no fixed end date for the Claimant to return to her usual duties.

[268]The team began operating at the start of November 2020. Based on the contemporaneous emails about it, we are satisfied that the seating plan at [Bundle 1195] predates the start of the CIRT experiment.

[269]The Claimant had a meeting with Richard Wilde about working on the team. Our inference is that this was probably on 1 November 2020 (or possibly 2 November 2020) and that it was before the text message exchange between the Claimant and Mr Carver on 2 November 2020 [Bundle 1204 to 1206]. 65 of 140

[270]In any event, the meeting between the Claimant and Richard Wilde was before he sent his email on 3 November 2020 (at 17:40) to which the Claimant replied the following day. [Bundle 1207 and 1208].

[271]In the meeting, as well as giving the Claimant information about the CIRT, Mr Wilde informed the Claimant of certain restrictions that would apply to her.271.1 Regardless of whether he said it at the time (and he has not given evidence to dispute any of the Claimant’s recollections about the meeting), our finding is that he was conveying to the Claimant decisions which had been made by Mr Townsend.

271.2 The Claimant suggests that he told her that “complaints” had been made by other staff. We have no doubt that he did tell her that comments had been made by other people about the fact that she was not wearing a mask. The Respondent prefers to use phrases such as “had expressed concerns” rather than “made complaints”. However, the Claimant’s evidence on oath is that she clearly remembers the word “complaints” being used, and we are satisfied that (not only is she being truthful, but) her recollection is accurate.

271.3 However, we do not accept that she was told that the nature of the complaints was that other people were suggesting that if the Claimant did not have to wear a mask, then they should not have to do so either. Furthermore, even if she was told that – for any reason – by Mr Wilde, that was not the basis of Mr Townsend’s decisions.

271.4 The restrictions which the Claimant was told about in that meeting are (largely) common ground between the parties. We are satisfied that Mr Townsend believed that the Claimant’s exemption (and therefore the fact that she was not wearing a mask while walking around the room) meant that other staff were at a greater risk than if the Claimant was not exempt (and therefore was wearing a mask while walking around the room).

271.5 We will discuss his motivations in more details in the analysis, including taking into account section 136 EQA. However, our finding of fact is that it was no part of his thinking that other employees thought it was unfair that they had to wear a mask when the Claimant did not.

[272]CIRT started operating on 2 November 2020, and Mr Wilde’s email on 3 November 2020 gave some information to the new team about it. His email included: I know seating and capacity has been an issue during overlaps and the CIRT should have 18 positions available. Some work has been undertaken to ensure all those 18 workstations are in full working order. it is expected all in the CIRT will hot-desk with no reserved positions but could I ask that the pod of four immediately outside the Superintendents office has no more than 3 working in that pod please. 66 of 140

[273]It is clear to us that when he spoke about a “pod”, he was referring to the full circle of desks outside Mr Townsend’s office. So to what would normally be 6 work stations, but reduced to 4 because of Covid.

[274]Our inference is that he was telling the whole team not to fill up the 4th workstation in that “pod” if 3 were already taken, because he intended that the Claimant would then always have a station available to her in that pod whenever she arrived. We infer that he was seeking to express this in a way that meant that the arrangement made with the Claimant would not be made public. One of the restrictions that he had told he about was that she always had to sit in this area (which he was calling a “pod”).

[275]In any event, even if our inference is wrong, then the Claimant’s email clarified the matter for her colleagues on 4 November: Good morning all my CIRT buddies. I just wanted to be upfront and clarify the below point. [quotes the extract from Wilde’s email cited above] Most of my colleagues are already aware but for those of you that don’t know I am mask exempt and management have asked me to use the POD outside of Kens office each working day to minimise my contact around the room and to help maintain a Covid-Safe environment. Therefore one of the four seats in that POD would need to be kept free for me to sit please. I hope everyone understands and I wanted to be honest around this so as avoid anyone the possible hassle of moving and to save any awkward conversations.

[276]On 6 November 2020, Ms Green wrote to FCR supervisors. [Bundle 292]. The email included: You will be aware of the FCR, and more recently force wide, directive re the wearing of face coverings across the estate when not seated at your desk. As a result of the initial direction within the FCR it came to light that a number of our staff were exempt from wearing masks. I make the obvious distinction between face covering and masks, the latter only being considered as PPE. Whilst there is no scientific evidence that face coverings or masks provide any protection, they do in part aid all existing measures in place which should also needless to say continue. This includes the social distancing, washing hands, using hand sanitiser and ensuring the workstations are cleaned before and after use. Clarity has been sought in how to deal with those members of staff who, for whatever reason, can not wear a face covering. As stipulated in the force wide directive, we should be sensitive to individuals and their needs but we also have to be mindful that we have a duty of care for everyone within the FCR. We have now secured a number of face shields which are very light and may be a better option for any members of staff who find the face coverings difficult to wear or are exempt. Alternatively if we still 67 of 140 have staff who cannot wear anything, we have reached the difficult position of restricting their movement in the room. Those known to be in this category at the moment are Sian Clayton and Mia Lunn. Both members of staff have been advised that should they not use a face covering or visor, will be required to minimise their movement around the room. They are to use one entry and exit point, which is at my end of the room. If their lockers are at the other end of the building we will arrange for them to be moved. They are to use the canteen facilities downstairs, again to minimise their movement in the main FCR and they have been advised to locate themselves in a workstation near to the exit and entry point. They should make contact with their team leaders by Skype, Teams or telephone. These measures are in place for both their protection and that of the wider FCR. As you know we are on lockdown in the FCR and from the force wide messages this afternoon you will see that we are view everyone as a positive Covid to help us focus on our social distancing and looking out for ourselves, our families and our colleagues.

[277]The measures stated in this email were authorised by Mr Townsend and were notified to the Claimant by Richard Wilde in the meeting mentioned above, save that in the Claimant’s case, the entry/exit point, and workstation, was near to Mr Townsend’s office, rather than to Ms Green’s.

[278]Although not stated in the email, the request to use Skype, Teams or telephone to contact supervisors was made to all staff, not just those who were mask exempt.

[279]The building had a larger kitchen on the ground floor, and, as stated in the email, the Claimant was told that she was to use that kitchen, and not the kitchen on the same floor as FCR. While that ground floor kitchen did not have a balcony, it was close to an exit from the building which opened out onto a grassy area which staff were free to access.

[280]The Claimant and Ms Bishop had met on 3 November 2020. As per Ms Bishop’s email of 9 November 2020 [Bundle 293], Ms Bishop suggested that the Claimant join the Staff Council to share her views. Ms Bishop also supplied the Claimant with the blank template for a Workplace Adjustment Agreement. The covering email included: Following on from our conversation on 3/11/20 I have now enclosed the workplace adjustment agreement/passport that we discussed. Please have a read through and if you feel this would be beneficial to you please do go ahead and fill it in. Once this has been done please arrange to meet with your line manager to discuss further. This is a confidential form and one that you keep with you, it would be down to you to choose whether to share the information on it with others. Your line manage may have to discuss the contents of the form with HR if they require some further guidance.

[281]In her witness statement, paragraphs 50 to 51, the Claimant claims that she was confused that the pro forma stated that it was a record of adjustments that had 68 of 140 been agreed when, in fact, the form was blank. We find this to be an implausible assertion. The explanation in the paragraph cited above is clear and shows that Ms Bishop’s sending this form was intended to be the start of the process, not the conclusion. In any event, the assertion is inconsistent with paragraph 53 of the Claimant’s statement where she mentions that she discussed the form with her union representative and decided not to complete it. Our finding is that the Claimant made a conscious decision that she would not complete the form, or adopt Ms Bishop’s suggestion. She was under no obligation to complete the form, but the decision not to complete it was not because she failed to understand that she was being offered a chance to use the form to make comments/suggestions about potential adjustments, and then the chance to meet her line manager to discuss further.

[282]The request that the Claimant (like others) not physically approach supervisors, but use phone or other remote means to talk to them, was not rigidly enforced. The Claimant recalls a conversation in early 2021 with a supervisor, David. So this was a few weeks after the conversation with Richard Wilde, and Ms Green’s 6 November email. We infer that the Claimant had approached supervisors in the meantime, because the Claimant’s recollection is that she was told by David that she was not supposed to be doing it (according to what Ms Green had told David). Furthermore, David informed the Claimant that the supervisors did not mind if she continued to do so.

[283]In 2021, the Claimant came to know about an 'Appreciation Board' that had been placed in the FCR kitchen which was placed there for staff members to write about a colleague that they appreciated. The Claimant was told that numerous entries were about her.

[284]On 27 February 2021, the Claimant and Mr Carver reviewed the stress risk assessment. On around 17 March 2021, they had a further discussion. The contents are accurately summarised in Mr Carver’s email shortly after the meeting. [Bundle 345]. The Claimant stated that she felt anxious about coming into work, though better when she was actually at work. She believed that she was being singled out by management. She did not wish to do a new stress risk assessment, and there were issues outside of work that were making her anxious.

[285]Mr Carver suggested that she use her role on the staff council to have a discussion with others about how the pandemic was affecting staff. She was also reminded about the Employee Assistance Programme.

[286]On 28 April 2021, the Claimant commenced a period of sick leave. She exchanged messages with Mr Carver. [Bundle 347]. In response to his query about whether the mental health struggles which she referred to were work-related or personal, she stated that it was a bit of both, and mentioned a particularly stressful 999 call. 69 of 140

[287]During May, the Claimant and Mr Carver kept in touch by text message, and he referred her to OH. He made a phone call to her on 11 May 2021.

[288]On 27 May 2021, Mr Carver conducted a welfare meeting by phone. [Bundle 358]. Prior to doing so, he took advice from HR who provided him some notes. [Bundle 357]. The AMP states: 4.13 Management of Long Term Absences4.13.1 Where an individual reaches a long-term sickness absence trigger, the Manager will hold a Welfare Support Meeting (WSM), within 4 weeks of the absence commencing, unless a return to work is imminent.

4.13.2 The purpose of the WSM is to discuss the current absence and identify any barriers to a return to work. At the WSM a date should be scheduled for a Case Conference within 4 weeks at the latest and this will be confirmed in writing to the individual by the manager, with right to be accompanied. Further guidance on holding a WSM and Case Conference are available in the Toolkit.

4.13.3 If the individual remains absent with no identifiable return date then the scheduled Case Conference will take place as arranged. The purpose of this case conference is to discuss possible support and assistance, which could be put in place to facilitate a return to work within a reasonable timeframe. Any identified actions will be confirmed in writing to the individual and this constitutes supportive informal management action.

4.13.4 If following the Case Conference, there is no return to work, or likely return to work in the foreseeable future then the Manager will consider proceeding to formal action under the BCH Police Staff Capability – Attendance Policy and Procedure or the Police Performance Regulations In these circumstances, the Manager should seek HR guidance

4.13.5 If following the Case Conference, there is a return to work then the manager will complete a return to work meeting (see 4.7).

[289]Our finding is that Mr Carver’s note of the meeting is an accurate summary.289.1 It is mentioned that the Claimant had not contacted the Employee Assistance Programme.

289.2 She was undertaking private counselling.

289.3 She was not taking any medication.

289.4 She did not have any GP appointments scheduled.

289.5 She said that one issue was the length of time it had taken for her Stage 1 appeal to be resolved, and the fact that she did not think her points had been properly understood. 70 of 140

289.6 Another issue was that she felt singled out by management because of the mask exemption.

289.7 She could not think of anything that the Respondent could do to help her return to work.

289.8 She was signed off sick until 8 June 2021, but did not know if she would return to work then.

289.9 She had an OH appointment on 28 May.

[290]That OH appointment went ahead [Bundle 1001; 393]. As stated to Mr Carver on 27 May, and to OH on 28 May, one potential cause of stress and anxiety were concerns about her mother’s health. The report produced after the appointment included: Continuing medical intervention alone is unlikely to facilitate a full resolution of her condition. If it is possible to address the perceived workplace issues, then there is a much greater likelihood of achieving a full recovery and successful return to work. I would recommend that you may consider the completion of a stress risk assessment so as to help clearly identify the sources of stress. A stress risk assessment can help to explore possible solutions or actions to help reduce perceived stress at work. I would advise that an agreed review date is established so as to evaluate solutions or actions taken forward and that monitoring continues. I also recommend that a review of the Covid-19 risk assessment is undertaken with particular consideration given to the current isolation that she reports as this appears to be impacting on her anxiety. You may wish to consider the completion of a Wellness Support Plan. This should be done collaboratively by Sian and her manager.

[291]By letter dated 3 June 2021, Mr Carver invited the Claimant to a case conference, the purpose of which was explained in the letter [Bundle 361]. The letter made clear that any matters which might assist the Claimant’s return to work could be discussed, and that the Claimant had the right to be accompanied. It mentioned various sources of support, and that the potential consequences if the Claimant was not able to return would also be discussed.

[292]On 15 June 2021, they had a phone meeting. It was recorded by the Respondent’s automated systems, not as a result of a conscious decision by Mr Carver. The pro forma completed by Mr Carver is [Bundle 363] and the transcript (produced by the Claimant, based on the audio recording) starts at [Bundle 1159].

[293]Prior to the meeting, it had already been decided that there would be a Stage 2 meeting under the Capability Procedure. 71 of 140293.1 There was a discussion about what might help the Claimant to return. There was a lengthy discussion that the Claimant was not happy with the fact that she had been told to always sit in the same pod. She asserted that she was concerned about the possibility of having to ask other staff to move. She asserted that she would like to be treated exactly the same as other staff who were wearing masks, including having access to the kitchen. She confirmed that she had gone to speak to supervisors when she needed to. In disputing the logic of not allowing her to use the second floor kitchen, the Claimant confirmed that she was not prevented from being in the ground floor kitchen, without a mask, at the same time as her colleagues.

293.2 In response to the points the Claimant made, Mr Carver said that he would see if there was anything that could be done, but that he anticipated that he would be told that, as had been mentioned in February at the appeal meeting, HR’s and management’s view was likely to be that the risk assessments that had been done justified the restrictions. The Claimant disputed that the mask issue had been relevant to her Stage 1 appeal, but did not dispute that she had been told about the MTRA in the appeal meeting.

293.3 Mr Carver asked if the Claimant would be interested in being put somewhere else temporarily. The Claimant said that she could not say “yes” or “no” without knowing more details, but would be open to a discussion.

293.4 Mr Carver asked if the Claimant had an estimated return date, and she said she did not.

293.5 He informed the Claimant that the decision had been made to move to Stage 2, and that the decision-maker would be Ms Regan.

[294]The transcript is, of course, more detailed than the pro forma. However, the pro forma captures the essential parts of the conversation, including in the action points on [Bundle 367].

[295]Mr Carver did follow up by emailing Mr Townsend and Ms Green (to an email address which he believed that they both could access) on 21 June 2021 to report that the Claimant had asked for the restrictions (and risk assessments) to be reviewed. [Bundle 373]

[296]On 28 June, the Claimant’s union representative emailed Ms Bishop to state: Sian wishes to return to work under standard social distancing conditions, to be allowed access to either canteen and to hotdesk as everyone else does. She would minimise her movements as best she can, sanitise her desk etc at the end of every shift and follow any one way systems that are in place. She is unable to wear a mask and this will continue to be the case. 72 of 140 I feel this would require the MTRA for FCR to be reviewed to assess the risk to others posed in a single person in FCR maintaining social distancing etc but not wearing a mask. The current version does not constitute a fit MTRA risk assessment with respect to this accommodation, is not meeting the required risk assessment standard and needs detail.

[297]We also note the contents of the email from the chair of HDCN which the union representative forwarded to Ms Bishop (who was vice chair at the time) [Bundle 395 to 397]

[298]Ms Bishop replied to the 28 June email to state (accurately) that she had spoken to Mr Townsend and that they were seeking advice from the Health and Safety Team. The query and advice is shown at [Bundle 381 to 382]. The advice included:298.1 That if the Claimant was able to use stairs, then requiring her to use downstairs kitchen was not unreasonable.

298.2 That the Claimant should be given information about where she could socialise with FCR staff.

298.3 That: “Wearing masks while moving around premises is a general risk reduction measure across the Constabulary. Moving around premises increases the spread of the virus to a wider area (therefore affecting more people), even more so if you are walking around without a mask. Therefore, if there is not an operational need to do so, other arrangements can be considered. This is to protect Sian as well as others.”

298.4 That: “… if someone not wearing a mask needed to speak to a colleague across the FCR due to an operational need that they cannot do over the phone, then this would be acceptable. Regardless of whether someone is wearing a mask or not, the advice is to limit travel around the room. Someone who cannot wear a mask may be given additional instructions and this would covered under individual arrangements rather than the FCR risk assessment. Therefore, for this query in particular, the current FCR risk assessment is adequate.”

[299]A further OH report dated 2 July 2021 was produced. [Bundle 391]. It included: Q. Sian has been invited to attend a Stage 2 meeting in relation to her attendance on the 20th July 2021 and I would be grateful if during your next scheduled appointment with Sian that you could ascertain whether she is fit to attend a formal meeting. A. Whenever possible, I believe that such processes should take place without delay, as failure to address concerns promptly tends to lead to prolonged anxiety, distress and of course extended absence. I have discussed this with Sian and also that it is my opinion that she is fit to attend for meetings with management; 73 of 140 1. I feel that she has demonstrated the ability to understand any allegations made against her. 2. I believe her to have the ability to distinguish right from wrong. 3. There is no reason to believe that she would not be able to understand or follow the proceedings. 4. Her mental health has not been deemed severe enough to warrant a referral to a psychiatrist. However, it is likely that the additional stress of participating in such meetings will further heighten her anxiety and I would advise that were possible they are postponed for a short period whilst work related issues are addressed. This will assist in reducing her current level of anxiety and enable her to better cope with any such meetings in the future. I have arranged to contact Sian again in 6 weeks in order to update and review and will advise you accordingly at this time. However, should there be any issues or queries please do not hesitate to contact me.

[300]The invitation to the Stage 2 meeting had been sent on 21 June 2021. At the Claimant’s request, it was postponed. On 14 July 2021, Mr Carver offered to do a stress risk assessment by phone [Bundle 400]. He had attempted to phone, but there had been no reply, so he emailed.

[301]The Claimant replied on 18 July 2021 to(i) give permission for Ms Regan to see the OH reports and

(ii) state that she did not wish to have a stress risk assessment.

[302]Mr Carver phoned her. He was told that the Claimant had not done a Covid test at the time, but believed that she had symptoms. [Bundle 401].

[303]On 20 July, Mr Carver attempted to contact the Claimant by phone. There was no reply so he emailed. [Bundle 405].

[304]On 26 July 2021, Ms Regan emailed the MTRA to the Claimant.

[305]On 30 July, Mr Carver, at 13:18, emailed to ask the Claimant to phone him. [Bundle 408]. The same day, at 18:04, the Claimant emailed Mr Carver and Ms Regan, asserting that “for the past 6 weeks or so” there had been a “lack of support and communication”. Our finding is that this is false. Mr Carver had made several attempts to speak to the Claimant by phone, and each of he and Ms Regan had sent emails. The Claimant’s request for the Stage 2 hearing to be postponed had been granted.

[306]The Claimant also asserted that it was her interpretation of the risk assessment that the restrictions on her had not been deemed necessary by the Health and Safety team. 74 of 140

[307]Having sought comments/advice from Ms Bishop, Ms Regan replied on 4 August 2021 [Bundle 417] disagreeing with the Claimant’ interpretation of the MTRA. They exchanged further emails on 4 and 5 and 6 August 2021, disagreeing with each other’s position.

[308]On 6 August, the Claimant was invited to a Stage 2 meeting on 18 August. [Bundle 433; 439; 441]. At the time of this invitation, the most recent OH advice was that the Claimant was “temporarily” unfit for work.

[309]The Claimant requested a change of time away from 3pm. Ms Regan made changes to hers and Mr Carver’s shifts to accommodate at 10.15am start time. She refused the Claimant’s request to postpone to a different date based on union representative’s availability.

[310]The meeting went ahead on 18 August 2021. As of that date, the Claimant’s fit note signed her off as unfit to work until 1 September 2021.

[311]The outcome was a Final Written Warning. [Bundle 488 is the letter; 466 the meeting notes; 465 the covering email]. We will discuss Ms Regan’s stated reasons in the analysis. The Capability Procedure states: 4.6. Stage 2 - Second Stage Formal Meeting 4.6.1. If, during or at the end of the review period and/or during the warning period the individual has not managed to meet and/or sustain the required levels of attendance a Second Stage Formal Meeting will be held in accordance with the procedure for a First Stage Formal Meeting. However, the following variations will apply at Stage 2;• a Final Written Warning is the maximum penalty that can be issued (which remains’ live for 12 months) See 4.8 and Appendix 1, and that ultimately the individual’s employment could be at risk. If sufficient improvement is not made within the 12 month period, a Third Stage Meeting may be arranged;

• an extension to a final written warning following a Stage 2 meeting may be issued but only be given on two occasions within two years before resulting in a Stage 3 meeting.

• the meeting will be chaired by a Manager at least one seniority above the First Stage Formal Meeting Chair (usually, but not always, the second line manager), supported by HR;

• the Chair of the First Stage Formal Meeting will attend to outline the support given to date, the action plans which have been implemented and evidence to support the fact that insufficient progress has been made.

• consideration must be made as to whether referral to the Force Medical Adviser in order to consider whether ill health retirement may be appropriate

[312]The outcome was delivered to the Claimant orally at around 1.30pm. The day before, 17 August 2021, Ms Regan had contacted HR to ask “if someone is using EAP, having private MH care and awaiting NHS CBT is there anything we can 75 of 140 provide them”. Our finding is that she did not have the reply (sent at 13:34 on 18 August 2021) before giving the Stage 2 outcome to the Claimant. Having read the reply, the same day, Ms Regan asked again if the Respondent could support the Claimant with any further Employee Assistance Program sessions, or any or other assistance with mental health issues. She chased again on 9 September 2021. [Bundle 644 to 642].

[313]Mr Carver attempted to contact with the Claimant about her request that sick pay entitlement be extended on a discretionary basis. The Claimant informed him, on 24 August 2021 [Bundle 614] I’ve just noticed this email and that you have tried to call me. I’m not at home this week and I don’t have great phone signal. Thank you for your email, yes that is ok for Ken to view my OHU reports.

[314]The Claimant and Mr Townsend subsequently exchanged emails directly about those issues.

[315]On 9 September 2021, Ms Regan sent an email to Mr Townsend and Ms Green [Bundle 650]: I have had some communication from OHU after I chased them today and I aim to email Sian Friday to cover aspects of the action plan which have been completed including your advice re seating, WFH and ‘other roles’ Plus OH response to the request for further treatment with EAP. One aspect of the meeting that I needed to ask is whether we have permission to provide her a copy of the response from Health and Safety in relation to the MTRA. Although we verbally discussed during the Stage two, a copy was requested. Could you please advise whether I can send her a copy of their response which was cut and pasted into an email?

[316]Mr Townsend’s reply the same day [Bundle stated]: I am content for the e mail reply to be made available and shared. I also wish for it to be made absolutely clear that the reasonable adjustments that have made for Sian is that she can work from either of the two CIRT pods entering and exiting the FCR without a face covering, or indeed the pod with additional screens provided. Likewise she can enter and use the larger kitchen and rest area on the ground floor of the FCR building without a face covering. There are no restrictions to any toilet facilities. The restrictions that I have in place are that Sian should not walk freely around the rest of the FCR nor use the small kitchen /balcony area. These are the only restrictions and appear to be the barrier to her return to work.

[317]On 10 September 2021, Ms Regan sent an email to the Claimant which we find accurately summarised her discussion with occupational health. [Bundle 655- 656]. 76 of 140317.1 She informed the Claimant that any further EAP sessions would only be approved if the treating therapist believed it was appropriate (and subject to the limitations which Ms Regan described), and suggested that the Claimant might wish to contact EAP to discuss further (the matter being a decision for EAP to make, not Ms Regan or OH).

317.2 The email said that OH could assess the Claimant in due course (by implication, being once it was felt that non-work issues were no longer preventing the Claimant’s return to work).

317.3 It copied and pasted the Health & Safety Teams advice (as discussed above, and as appearing on [Bundle 382-383]).

317.4 It stated that there could not be home working in her current role (and named Mr Townsend as the person who had made that decision).

317.5 For seating arrangements, it stated that the options were: Mr Townsend has confirmed that you can utilise seating from either of the two CIRT pods entering and exiting the FCR without a face covering which allows 8 seating choices or if you are more comfortable performing your role from the two desk position (Located outside of Vanessa’s office) the pod with additional screens provided. I think you would prefer being with your colleagues after our discussion in the two CIRT pods, but this option is for you should you wish to do so. The third pod one row back and more central which is occasionally used would not be deemed as available to use.

317.6 It stated that there would be an absence review after 18 November 2021.

317.7 It stated that alternative roles within the Respondent could be discussed, and asked the Claimant to confirm if she wanted Ms Regan to explore that.

[318]On 3 September 2021, Mr Carver emailed the Claimant to mention that her fit note had expired. On 7 September 2021, the Claimant supplied a note dated 7 September, and backdated to 1 September.

[319]On 10 September 2021, Mr Carver emailed the Claimant suggesting that they should go through a workplace adjustment agreement and wellness support plan, and that this could be done by phone. The Claimant replied seeking more detailed of what that would entail, and whether it would be affected by the FAW. Mr Carver supplied the template documents for the Claimant to consider on 17 September. [Bundle 662-661]. The attachments are [Bundle 665 to 682]

[320]On 17 September 2021, Mr Townsend sent the email to the Claimant which appears at [Bundle 687]. As well as confirming that her sick pay had been extended, it stated: 77 of 140 I understand that your FAW has been allocated to Supt Dean Patient to progress and I will meet with him at his earliest opportunity. For the purposes of transparency and to answer your question below. It was my decision to make the reasonable adjustments that I believe have been conveyed to you. These adjustments being that you could work within the FCR at either of the two CIRT pods and access them without wearing any form of face covering, that you could likewise enter the FCR (and indeed the wider OSB) without wearing a face covering and that you could use the larger ground floor kitchen and rest area without wearing a face covering. You will of course be aware that all other FCR staff are being asked to wear face coverings whilst walking around the FCR and using the kitchen areas. I am of the belief that by asking you not to walk around the wider FCR or use the smaller kitchen area without a face covering is in the wider interest of all of the staff that I have under my command and that in these most challenging of Covid times, I am doing my best to protect us all. I appreciate that you disagree with this and that your views are being represented by the FAW process. Sian, please be aware that I fully accept the OHU opinion that your anxiety is a condition likely to be covered by the Equality Act. I also note your reply that you believe to work in any other office environment within HQ alone, would be of no benefit to your condition. Whilst the role of a Comms Op is not one that can be fully employed on an agile working basis, the skills that you posses with regards to Athena usage and understanding potentially provide another interim solution. Would it be an option for you, to consider transferring to a Crime Officer Role within the IMU (FCR)? This would in the long term afford you a 66%/34% agile working pattern. In the short term as part of your recuperation and return to work we could support you to work from home (or elsewhere agile) on a 100% basis initially, and provide you additional training to enable you to perform a part of that role, namely finalisations.

[321]Having had no reply, Mr Townsend asked Mr Carver to contact the Claimant, which he did. Mr Carver accurately reported back to Mr Townsend [Bundle 686] that the Claimant told him that she wished to have the FAW outcome before deciding on an agile role in IMU.

[322]On 4 October 2021, Mr Carver emailed the Claimant to aske her if she had looked through the workplace adjustment agreement and Wellness Support Plan documents, and asked her if she had a new fit note now that the one covering the period to 30 September 2021 had expired.

[323]On 5 October, the Claimant replied to say that she had looked at the documents but did not propose filling them in before the FAW outcome. She did not have a new fit note, but was hoping to have one by no later than 10 October 2021. [Bundle 762].

[324]Around 11 October 2021, the Claimant supplied a GP note that she was not fit for work from 1 October 2021 to 11 November 2021. The options stating that she might be fit for work with adjustments were crossed out. [Bundle 872]. This is the 78 of 140 same as the other notes for the absence which started in April 2021 and continued to the end of employment [Bundle 62 to 79].

[325]On 11 November, Mr Carver emailed the Claimant to arrange a discussion. [Bundle 923]. He suggested some times for her to ring by, and – in response to her query – emailed to confirm the method to use to phone him. Having not heard from the Claimant during any of the suggested times, he emailed her again on 14 November. He also tried to call her. There was no reply. The Claimant replied by email. [Bundle 923-922].

[326]On or around 23 August 2021, the Claimant submitted an appeal against the Stage 2 warning [Bundle 611]. In the appeal it was asserted that the absence was disability-related. The FAW was mentioned, with the argument being that should be dealt with prior to any Stage 2 warning (or other steps) in the Capability Procedure. It was also asserted that the Respondent had failed to address the Claimant’s concerns. The submission included (drafted by the Claimant’s union representative): According to those present, FCR management have stated in the stage 2 meeting, they decided that Sian must be further limited in her movements at FCR outside of social distancing guidelines as they feel her being unable to wear a mask (the disability) is a risk to her and others; there is also an email from senior FCR management that states this position. This ‘edict’ has made Sian feel unsupported and caused her wellbeing to sink as she sees this as direct discrimination. FCR managers claim to have … identified the risk Sian being unable to wear a mask poses; they have stated they feel allows them to constrain Sian more than others but as far as we can tell, they have not achieved this through a Health and Safety risk assessment either under the MTRA or individual risk assessment models, it appears to be a conclusion based on personal opinion only, which stretches the managers discretion to its limits and we ask that a formal Health and Safety position on the matter be made. We can cite examples where other staff [similarly] unable to wear a mask are not in any way constrained more than a person who can. There is an opportunity here to perform a formal individual risk assessment that will at least clarify the FCR [management] position as thus far, it simply translates as an order with no substance behind it and as we all appreciate, staff operate under contract and not edict. The FAW will address this matter via an independent manager and we submit that until this has been completed, a SIMA would be more appropriate over a written warning.

[327]As part of the appeal process, Ms Regan created a document describing what she said was her rationale for the Stage 2 decision. She emailed it to Christine Hill (the HR Consultant assisting with the appeal process) on 9 September 2021. [Bundle 646-649]. We find that this document supplies information about Ms Regan’s genuine conscious thought process for her decision the previous month to issue 79 of 140 the Stage 2 warning. We are satisfied that she noted what was being said on the Claimant’s behalf about the reasons for deferring any decision to issue a Stage 2 warning, and that those reasons were not solely based on the restrictions themselves. They were partly based on that, on the Claimant’s hope that the FAW process might lead to a change in those restrictions, but they were also based on the fact that the Claimant was hoping to have treatment herself that might improve her health, and that the Claimant’s mother’s health was bad. The Claimant’s position was not that she was immediately fit to return provided the restrictions on her movements was lifted; her position was that she was not fit to return (and the absence was disability-related) but the Respondent should await further developments. The Claimant’s representative had stated that the Claimant was not (as of August 2021) ready for mediation. Our finding is that the rationale document accurately summarises the discussion that was had about the possibility of working, temporarily, in another role, whether working from home, or working at the Head Quarters site, but outside the FCR.

[328]The appeal was acknowledged.

[329]On 8 October 2021, a letter inviting the Claimant to the appeal hearing was sent. [Bundle 770].

[330]Prior to the meeting, there was an email from Christine Hill on 28 October 2021 to Mr Phillips and Ms Regan, which was not copied to the Claimant. [Bundle 901] [Bundle 902]. It attached the draft FAW outcome which had been supplied to the Claimant on 22 October 2021.

[331]The appeal hearing was on 2 November 2021, and was conducted by Superintendent Matt Phillips (who was not a witness). It was attended by the Claimant and a union representative, as well as by Ms Regan. The notes of the meeting are [Bundle 911]. During the meeting, the Claimant was told the appeal was rejected [Bundle 913].331.1 The Claimant objects to the fact that one of the comments made was “Stage 2 is not a disciplinary.” We are satisfied that the notes make the context clear. The context was about the decision to issue the Stage 2 warning, rather than defer any decision until after the FAW outcome. Mr Phillips gave several reasons for his decision that he thought it was “the right decision to do this”; in so doing, he acknowledged that awaiting an FAW outcome prior to a disciplinary hearing might sometimes be appropriate, but that that was not the issue which he had to decide in this particular appeal hearing.

331.2 He dealt with the Claimant’s assertion that she could have come back to work sooner if appropriate steps were taken by listing the steps which had been taken, and, by implication, deciding that those steps had been sufficient and appropriate. 80 of 140

331.3 He rejected the contention that the mobility restrictions had not been properly explained to the Claimant and/or that managers had been unwilling to discuss them with the Claimant.

331.4 He suggested that alternative roles and working from home had been offered, and his decision was that the Claimant had not been willing to explore those.

331.5 He commented on the Claimant’s union representative’s comment that there was someone who was exempt from wearing a mask and who had not had mobility restrictions placed on them by stating: “[they] work in different role and very difference circumstances. ... Not grounds for appeal.”

[332]The written outcome was sent to the Claimant on 4 November 2021 [Bundle 917- 919]

[333]The Claimant commenced the Fairness at Work procedure (FAW) around 2 August 2021 [Bundle 625]. As both parties have mentioned, this is a form of grievance procedure.

[334]Superintendent Dean Patient (“Mr Patient”) was appointed to deal with it, and, on 26 August 2021, he was supplied with information about the intended timescales, and a copy of the Claimant’s grievance [Bundle 616]. He was informed that normal timescales were extended by 50% because of the pandemic. He was required to meet the Claimant by 9 September, conclude fact finding a prepare draft report by 9 October, and to meet the Claimant to discuss the draft by 29 October, and supply final outcome by 1 November 2021. (These being the latest dates, assuming each step took the maximum amount of time allowed; the actual deadlines for each step were calculated by reference to the date on which the preceding step was completed.)

[335]Within the FAW document submitted by the Claimant (effectively, a grievance), she described the mobility restrictions placed on her, and the information given to her by Richard Wilde. She referred to her anxiety and depression and stated that they were exacerbated by the decision, and by management’s insistence that they were “final”. She said she felt bullied and that this had led to a deterioration in her mental health and to the on-going absence which had commenced the previous April (so slightly more than 3 months before commencement of the FAW process). She referred to the subsequent correspondence (as mentioned above) on the issue during her absence. Her suggested resolution was: Acknowledgement of the [discrimination] and unfair treatment that I have received and the negative impact it has had on me and my mental health. Advisory/Training given around the understanding of hidden disabilities and mental health so that this type of discrimination does not happen again. This is something that appears to be very lacking in the FCR as I have also experienced a number of unpleasant confrontations over the last 9 months with my peer [colleagues], supervisors and 81 of 140 management because of my hidden disability and the fact I am unable to wear a face covering. The restrictions forced upon me to be lifted. The opportunity for more open and supportive conversations around [individuals] personal circumstances as there appears to be no clear communications paths to follow when needing support or any clarification on management made decisions.

[336]On 26 August 2021, the Claimant was informed that Mr Patient was dealing with the matter [Bundle 632] and on 1 September she was told that he would meet her by Teams on 9 September [Bundle 630], and was supplied with the policy and information [Bundle 632-633] about the purpose of the 9 September “preliminary meeting”.

[337]The transcript is 1174 to 1189. We find that it is reasonably accurate. The Respondent has had the chance to compare it to the audio and has not raised any points of dispute about it.337.1 The meeting was before Mr Patient had spoken to anyone else to find out their opinions about the restrictions.

337.2 In the meeting, Mr Patient agreed with the Claimant’s representative’s suggestion that the employer’s obligations (especially in light of the Disability Confident accreditation that it had been awarded) might require it to be robust with anyone who queried why a reasonable adjustment had been made for a colleague.

337.3 The viewpoint expressed to Mr Patient was that the restrictions that had been imposed on the Claimant were because of colleagues objecting to the fact that the Claimant was not wearing a mask. (In context, the three of them, Mr Patient, the Claimant and her union representative all proceeded on the basis that the alleged complaints were from people saying that the Claimant ought to be made to wear a mask, as opposed to anyone suggesting that if the Claimant did not have to wear a mask, then nor should they.) Mr Patient likened this to someone in a supermarket or on public transport objecting to someone not wearing a mask. (In context, he was suggesting that such a person in a supermarket or on public transport would be acting unreasonably and/or improperly, his rationale being “if you’re exempt, then you’re exempt”.)

337.4 In response to those suggestions about how the restrictions had come about, he suggested that there had been a ham-fisted attempt to “deal with the people that are moaning at us. So the way we can do [that is to put the Claimant] in a bubble,” and that with a “number of people constantly giving them grief … well its easy, stick you in the box and shut those people up”.

337.5 Mr Patient mentioned that “if there is some weird and wonderful rationale that is fully documented, and well can stand scrutiny” then he and the Claimant 82 of 140 could discuss it together and possibly challenge it, but “at the moment … you're left with only one conclusion, which is [it is] discriminatory behaviour”.

[338]Following the meeting, around 23 September 2021, he emailed the Claimant with his opinion about what the scope of his investigation/decision would be. The Claimant agreed. The scope was: On your behalf I will seek to explore with your line managers; 1. To fully detail any adjustments / restrictions placed upon you as a result of Covid working practices within the FCR that are unique to you and or in addition to those in place in the wider workplace. 2. The rationale for decision(s) taken in relation to adjustments / restrictions made in the workplace (as above) in response to your exemption from waring a face covering. 3. To understand if any complaints have been made in relation to you exemption from waring face coverings. 4. To detail any actions or communications that have been taken by managers in relation to explaining the needs of those with hidden disabilities to the wider work force and to challenge inappropriate behaviour when this does occur. 5. For line managers to understand the impact that these adjustments / restrictions have had on you and to seek a review of this position, in doing so; 6. To negotiate an agreed position that would allow you to feel able to return to the workplace at the earliest opportunity.

[339]Mr Townsend emailed on 24 September 2021 confirming readiness to discuss with Mr Patient [Bundle 694] and Mr Patient replied in an email which included points 1 to 4 from the “scope”. [Bundle 697]. On 27 September, Mr Townsend replied, attaching a document [Bundle 700 – 747] prepared by Ms Bishop on his behalf.

[340]The Claimant had suggested obtaining information from all of Jo Bishop, Daniel Carver, Ken Townsend, Richard Wilde and Vanessa Green and Mr Patient did so.

[341]On 12 October 2021 [Bundle 771], Mr Townsend sent an email attaching his own comments on the situation [Bundle 772-783] and the FCR Contingency Planning document [Bundle 784-870]. The latter is a detailed document about the various Covid measures which were implemented. It is possible to see the dates on which some things were implement (during the period March 2020 to October 2021), though the dates of some measures are not expressly stated. The version of the document at pages 784 to 870 of the bundle does not include anything later than 12 October 2021, because that is the date on which the attachment was sent to Mr Patient. It does not follow from that there were no later changes to the plan.

[342]On 14 October 2021, Mr Patient sent the Claimant an update. He was hoping to get the draft report to the Claimant by 20 October and to meet her in November. The draft report was supplied on 22 October [Bundle 878-900]. 83 of 140

[343]The Claimant and Mr Patient met to discuss the draft on 16 November 2021. The Claimant’s comments after the meeting are in her email of that [Bundle 930]. Thank you for your time today. I appreciate the work and time put into my FAW. Until today I have not had any communication around the justification for the restrictions placed upon me. There has been a lack of compassion and transparency from the very start. I have been told on many occasions that the decision has been made due to complaints being made about my inability to wear a face covering. These ‘concerns’ are also noted throughout the FAW report. I believe that the decision was made based on these complaints and not a policy in place. Rather than this being a issue with my perception or misunderstanding, by your own admission it is clear the process has been floored and the communication to myself has been lacking and obstructive. Although I have found some clarity around the reasons for the justification due to the FCR being a ‘unique environment’, I still don’t feel I have been treated fairly in the implementation of this and disagree with the decision. As these restrictions are not something that are placed upon all individuals who are unable to wear a face covering across the Force it leads to me believe I am being treated differently. I would have preferred to have been communicated to clearly and compassionately from the start allowing me a better understanding and open dialogue with management regarding this. Which is something I requested as early as my Case Conference in June but no action was taken. It would have been more appropriate to provide me with voluntary options rather than orders. I am reluctantly considering referring this to the DWP Disability Confident Policy Team for them to review under their policy as I have taken the relevant steps thus far that allow me to bring this complaint to their attention. There are still a lot of unanswered questions for me and I had hoped the FAW process would be an opportunity to provide more clarity. Thank you again for your time with this.

[344]This was in response to Mr Patient’s email at 2.13pm, which had confirmed that he would speak to Mr Townsend about mediation. It was followed by an exchange in which the Claimant confirmed that she was still willing to consider mediation [Bundle 932].

[345]The final version of the report [Bundle 1244 to 1266] was sent to the Claimant on 17 November 2021 [Bundle 1242]. At [Bundle 1261], Mr Patient supplied his conclusion on each of the 6 points contained in the “scope” email of 23 September 2021.345.1 For point 1, the conclusion was: I find that the position here is clearly set out by Supt Townsend. All FCR staff and working practices have been subject to a range of restrictions due to Covid such as; minimal movement, use of facilities, desk allocations, hygiene, social distancing and 84 of 140 the limits on room occupancy. These measures remain in place and apply universally. Where specific adjustments have been made in relation to Sian, such as the use of allocated work areas or the use of facilities such as a kitchen. These adjustments either relate to Sian’s role and location of her team/function or are in response to her increased risk (specifically her Mother) and or the increased risk Sian presents to colleagues due to her inability to wear a face covering (see below).

345.2 For point 2, the conclusion was: I find from the account provided by Supt. Townsend that any additional adjustments to Sian’s working arrangements are seen as offering protection to both Sian and the wider workforce. I believe these represent reasonable control measures put in place following H&S advice and risk assessment, based on the elevated risk to both Sian and her colleagues from her unique set of circumstances. Nothing I can find victimises Sian for her inability to wear a face covering, but she is being treated differently in response to her circumstances in the context of keeping everybody safe in a critical function. I believe that in doing so the management have genuinely tried to respond to Sian’s needs over time.

345.3 For point 3, the conclusion was: I find no record of any formal complaints being made.

345.4 For point 4, the conclusion was: It is clear that during the response to the pandemic regular updates have been communicated to staff at all levels. Whilst I cannot capture all of these, one example dealing with the needs of others is dealt with by a correspondence detailed above by Supt Townsend in a communication sent to all managers by Venessa Green. Further force wide communications have been issued in relation to disability as part of the forces work to become a Disability Confident Leader.

345.5 For point 5, the conclusion was: It is clear from the correspondence set out above between Sian and Supt. Townsend, that management are fully aware of the concerns that Sian has in relation to the impact of adjustments upon her. I believe that the managers have clearly offered a range of options to Sian over time even to change role, but these offers have to date been rejected. Whilst I have sort to review this position, the management remain clear that their wider duty of care to the FCR staff and indeed Sian, mean that adjustments need to remain until such time as pandemic restrictions are no longer required.

345.6 For point 6, the conclusion was: In Supt. Townsends final paragraph, it is clear that he would like to see Sian return to the work place. I hope that given the detail above, Sian can find a way of reestablishing a positive dialogue in the knowledge that management have her best interest at heart but must balance those with the wider workforce at a time of unique challenge for all 85 of 140

345.7 The summary was: Given all of the above, I cannot find any evidence that Sian’s treatment is in anyway ‘unfair’. Indeed, far from being un-thought out or reckless as to Sian’s needs, the management position is a considered one, seeking to balance the risks to both Sian and her colleagues. Whilst I believe that at times, the rational for actions could have been more directly and clearly set out to Sian, I cannot find any grounds to uphold this fairness at work. From my meeting with Sian on the 16th November it is clear that Sian believed that rationale for putting place adjustments relating to her stemmed from complaints from others rather than from management of the FCR trying to balance and mitigate risks to others that her inability to use a face covering presented. These adjustments, as part of wider measures to protect all including Sian, in what remains a critical environment/function for the force which necessitated a bespoke response to the Covid pandemic. As such managers within the FCR could have made this clearer to Sian than appears to have been the case early on. I do hope that both sides can start to see each other’s position and that this process can be used to re-start dialogue that sees Sian return to the workplace

[346]It included comments that the Claimant was willing to attempt mediation and that Mr Patient was going to ensure that the offer of mediation was communicated to Mr Patient. Mr Patient had no particular format of mediation in mind. It was his opinion that, if the parties were going to agree to mediation, then they would agree the arrangements for that mediation between themselves.

[347]In terms of Mr Patient’s conclusions, those in the final version matched those in the draft.

[348]On 26 November 2021, there was an email exchange among the supervisors regarding the Claimant’s lack of contact with her line manager and the fact that she had missed an OH appointment. Via her union representative, the Claimant explained that she had forgotten about the appointment. [Bundle 935-936]

[349]Ms Regan emailed the Claimant on 1 December to propose a discussion on 6 December. It was Ms Regan’s intention to complete an OH referral and to inform the Claimant that there would be a Stage 3 hearing. [Bundle 937]. On 6 December, the Claimant spoke first to Ms Regan and then to Mr Carver. [Bundle 938].349.1 The Claimant informed Mr Carver that she was upset about the information about the Stage 3 hearing, believing that other reviews should have taken place first. 86 of 140

349.2 She stated that she had decided not to appeal the FAW decision (not because she agreed with it, but because she thought there was no point).

349.3 Her pay had continued as full pay until November 2021, and then dropped to half pay. Mr Carver confirmed that it would drop to nil from 9 January 2022.

349.4 Mr Carver told her that he wanted her to come back to work and our finding is that he genuinely did want that to happen.

349.5 He asked her about alternative work and she told him that she did not think that the options that she was aware of would be workable.

[350]The possibility of moving to Stage 3 had been addressed in Jo Bishop’s email of 9 November 2021 and in Christine Hill’s response of 11 November 2021 [Bundle 926] which were coped to Ms Regan and Mr Carver (and others).

[351]While matters were fresh in Ms Regan’s mind, she sent the lengthy email [Bundle 940 to 942] which supplied Ms Hill with Ms Regan’s version of what Ms Regan and the Claimant had discussed on 6 December 2021. We find that it accurately reports that the Claimant had queried the necessity/appropriateness of moving to Stage 3 (for various reasons) and that, among other things, Ms Regan had stated that there could be discussions for the Claimant’s future return. The email included: As part of her Fairness at work, Mr Patient has told her that he would speak with Mr Townsend in relation to having a conversation with her which was three weeks ago and she says she has had no update. She has been previously asked re mediation and declined. She is now open to arranging a meeting with Mr Townsend and I have told her that I would communicate this. AND She missed her OH appointment and said she forgot and had not been well. She has not yet rearranged but will do so today and is aware I need to complete a referral for a stage 3. AND She feels that in relation to the the issue of ‘complaints’; she was informed there had been and she was informed verbally and in writing and it is her perception that the department had retracted … AND She said working from home is isolating for her and it would mean she would need to learn a new role. I pointed out that this was an offer that she could work from home or elsewhere agile. She does not know how to find out about other roles in Departments and asked how to do this. She has been working for the organisation since 2017. I consider she would 87 of 140 have an understanding of the set up of the Constabulary, she said she does not know each department and would not expect me to provide her with a list. She will look at the Herts Website to view any job adverts for ideas and will speak with HR regarding any projected vacancies which may be advertised. She said she loved her job and liked speaking with the public, I have provided examples such as Administration of Justice and Victim support and advised her to start with an department and expand from there. She said she didn’t know what their Covid Assessment was but I suggested she can look at a role she maybe interested in and then make the enquiry from thereon. She does not feel that the option given to her by FCR are options. We find that, in each case, Ms Regan was accurately reporting what she believed had been discussed.

[352]Ms Hill replied the following day [Bundle 944] which commented generally, and, in particular, supported a move to Stage 3 while suggesting that it would be in the Claimant’s interest for the Claimant to attend future OH appointments, ahead of Stage 3.

[353]Ms Regan’s email to the Claimant on 18 December 2021 [Bundle 948-951] is consistent with Ms Regan’s exchange with Ms Hill. Amongst other things, it confirms that Ms Regan acknowledges that the Claimant was willing to meet Mr Townsend and that Ms Regan would seek to arrange for the Claimant to have an update about that.

[354]On 21 December 2021 at 11.59, Ms Hill wrote to the Claimant offering the Claimant a meeting with Mr Townsend at 2pm on 30 December and asking the Claimant to reply. The following day, she sent an email at 17.13 stating (accurately) that she, Ms Hill, had attempted to reach the Claimant by phone, and giving the Claimant alternative details to use for her reply (including Mr Townsend’s) because she, Ms Hill, was about to go on leave.

[355]The following day, 23 December 2021, the Claimant and Mr Carver had a Welfare Contact by phone. [Bundle 956]. The Claimant mentioned Ms Hill’s email, and Mr Carver asked her to contact Ms Hill that day. The Claimant was aware the email was about mediation, but said she had not read it properly and that she was unwell.

[356]The Claimant replied to Ms Hill five days after the conversation with Mr Carver, on 28 December 2021 at 9.42. The reply [Bundle 972] said: Sorry for the delay in replying, I’ve have been poorly with a tooth infection and because of the Christmas period it’s been tricky. I am unfortunately not available on the 30th and am currently in correspondence with ACAS. I hope they are going to lead the mediation and I will update you as soon as I have further information.

[357]Three days after sending that email, the Claimant commenced early conciliation via ACAS. However, the Claimant did not send any “update” to the Respondent 88 of 140 about ACAS attending or arranging any meeting between the Claimant and Mr Townsend or the Claimant and anyone else from the Respondent.

[358]The email was copied to Mr Townsend and to Kate Hodgins (HR) as well as to Ms Hill (as instructed by Ms Hill’s 22 December email). On 5 January 2022, Mr Townsend sent an email to Ms Hodgins which both sides have treated as admissible. Amongst other things, it stated: As discussed it is my belief that [the Claimant] is scheduled to move to NIL PAY on the 9th of January. Can you confirm firstly that this is indeed correct and that everything is confirmed and in place with Payroll to ensure tis happens. Secondly I note from the below that it is [the Claimant’s] belief that ACAS may lead on mediation and that she will update us further. I do not believe this is in her gift to either select a mediation representative nor a timescale. I fully understand that ACAS will have an initial legislative role ahead of any potential Employment Tribunal but this is not what is being indicated. Separately we discussed as to whether I would consider entering into any conversation regarding a financial settlement payment with S, I confirmed that I was NOT prepared to enter into any form of settlement negation. Finally I am aware that OHU have brought forward a second attempt at meeting with [the Claimant] to the 1st of February. Whilst I accept the requirement and necessity for this meeting ahead of any Stage 3 proceedings ,I believe it should NOT have an effect on the Nil Pay deadline (unless raised by way of appeal and authorised by the DCC). Could you likewise please confirm my understanding and advise me if any appeal originates.

[359]Ms Hodgins replied commenting, accurately, on what early conciliation typically involves. Each of Mr Townsend and HR were of the opinion that the Claimant had declined the offer of meeting Mr Townsend.

[360]The process of rearranging the OH appointment which the Claimant had missed continued. Ms Regan and Ms Hill sought to arrange it asap. A date of 23 February was mentioned as a possible date, but HR were able to bring it forward to 1 February 2022. On 17 January 2022, Ms Regan wrote to the Claimant mentioning the appointment, and referring to the need for the Claimant to attend. This letter [Bundle 975] contains alleged harassment, and so we quote it in full: Dear Sian, I am writing to you in relation to your appointment with Occupational Health scheduled for Thursday 25th November 2021 at 1200 which you did not attend. Our Occupational Health department play a key role in the physical and mental wellbeing of Hertfordshire Constabulary employees. Our Occupational health advisors assist us in managing long term absence situations by providing medical opinions on fitness for work and guidance on any adjustments and support that that are required to facilitate a return to the workplace. The opinion of an occupational health specialist 89 of 140 is instrumental in determining how to best support and manage individuals that are absent due to ill health. As you are aware you have now been absent since 28th April 2021, as previously explained your current long-term absence is difficult to sustain. As such, the organisation is taking all possible steps to ensure that you are fully supported to facilitate a safe and timely return to work. Part of the support offered, is regular reviews within our Occupational Health Department. It is important that you work with the organisation and comply with reasonable management requests to attend OHU appointments. If you choose not to engage in these appointments, then management decisions will have to be made based on the information available to us; and the fact that you are refusing to attend OHU appointments will be noted. Further, if we do not have the necessary medical information to assist us in making informed decisions; we will need to proceed with action under the police staff capability procedure and make management decisions with the information that is available to us. Your occupational health appointment has been rescheduled for Tuesday 1st February 2022 at 1400hrs. We do recognise that this is a difficult time for you made more so by the on-going pandemic. If there are any adjustments or additional support that we can put in place to support your attendance at this appointment, then do please let us know. If you have any queries regarding this letter please do not hesitate to contact me. I wish you all the best Regards Hannah

[361]Paragraph 168 of the Claimant’s witness statement says: On the 25th January 2022, ACAS notified me that the Force were not willing to engage in the process. I received my ACAS certificate on the 26th January and I was fortunate to have a period of lucidity. The process had ended, I still had not received any email regarding rescheduling of the mediation with Ken, I was being accused of thwarting the process and I knew that whatever the outcome, I could not go back to work in that toxic environment and sent in my resignation

[362]Paragraph 169 says: I made it clear in the email it was due to a fundamental breakdown in my employment

[363]The email which is referred to in these paragraphs [Bundle 1138] is addressed to Mr Townsend and Ms Hill and reads: I am emailing to notify you that I am resigning from my position as Communications Operator effective immediately, today Wednesday 26th January 2022. The reason for my resignation is due to the fundamental breakdown in my employm ent with Hertfordshire Constabulary over the last 18 months. 90 of 140

[364]Ms Hill’s response, about 4 hours later, included: I would highlight that we have followed our processes and I am sorry that you did not accept the offer of a facilitated meeting with Ken Townsend (a recommendation made in respect of your Fairness at Work). This meeting was intended to build relationships and therefore we are disappointed that we did not have the opportunity to progress this. I appreciate that you have tendered your resignation and have requested that you employment end today, 26 January 2022. Having raised this with Ken Townsend he has agreed to this and therefore you are not required to fulfil your 1 months’ notice period. Analysis and conclusions

[365]Item 0 in list of issues was time limits. After we had made our decisions on the merits of each claim, it was apparent that each one had failed.

[366]The harassment complaint was in time.

[367]Any complaints about the way in which the Claimant’s absences were dealt with before 1 October 2021 would probably have been found to be an act which continued until after 1 October 2021 (although this is hypothetical given that we found that there was no discrimination before or after that date).

[368]The complaints about alleged constructive dismissal were in time. Since, in order to deal with the constructive dismissal arguments, the Respondent had to deal with the substance of the matters that the Claimant said were failures to make reasonable adjustments then it is likely that time would have been extended on just and equitable grounds for those complaints, if we had decided that they were otherwise outside the time specified in section 123(1)(a) [taking account of section 123(3)] EQA. However, since the claims fail on their merits, in any event, it is not necessary for us to address that formally.

[369]Item 1 of list of issues is very general. Our answers to it are apparent from the findings of fact above, and from what we say below.

[370]The next item in list of issues commences: Failure to make Reasonable adjustments s20/21 Equality Act 2010 (EQA) 2. Did the Respondent impose PCPs during the Covid pandemic and between September 2020 to January 2022 as follows: 2.1. The requirement to wear a mask whilst standing or using the break room in the FCR 2.2. The requirement to wear a mask whilst moving to request support from a supervisor 91 of 140 2.3. The requirement to use a mask in order to have the full range of choices over which entry/exit point to the FCR the employee would use 2.4. The requirement to use a mask in order to use the FCR kitchen (and, therefore, access to the balcony).

[371]The Respondent did have each of those PCPs. They applied in principle to all employees including the Claimant.

[372]For avoidance of doubt, in relation to PCP 2.2, the requirement was to wear a mask when moving for any purpose. So that included when approaching the desk of another person, whether that person was a supervisor or not, and whether the purpose of the approach was to seek advice/support or not.

[373]Furthermore, in relation to seeking advice or support from a supervisor, the expectation for all employees was that they would do it while seated at their desk (using Skype or Teams, etc) rather than move to request it.

[374]It was also an expectation rather than a requirement that was strictly enforced. 2.7. The Capability policy/sickness absence procedure (a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal)

[375]The Respondent did, in general, terms, have a PCP that matched that description. For avoidance of doubt, there was no black letter rule that X days absence was always first warning, Y days absence was always final warning and Z days absence was always dismissal.

[376]The requirements of the policy (and how it was applied to the Claimant) were discussed above in the findings of fact and are analysed below. In particular, the Respondent did have “trigger points” and someone whose absence reached (one or more of) those trigger points might be warned and/or dismissed, but warning/dismissal was not the inevitable outcome of reaching any given trigger point.

[377]Next in list of issues is: I In each case, if the Respondent had the PCP, did that PCP (by itself, and/or along with other PCPs and circumstances) place the Claimant at a disadvantage when compared to non-disabled persons

[378]The Claimant could not wear a mask and so all of PCPs 2.1, 2.3 and 2.4 placed her at a disadvantage compared to non-disabled persons who were able to wear masks.378.1 Because of the PCP 2.1, she was not able to use the kitchen on the same floor as FCR (and had to use the one downstairs). For kitchen use, she was not subjected to any additional restriction (other than those which applied to 92 of 140 all persons, mask-wearers or not) in going to the kitchen at the same time as others.

378.2 Because of PCP 2.3, she did not have a free choice of entrance or exit. That being said, she did not give evidence that using (only) the front entrance / exit of the building caused her any particular issue. It was not shown that this requirement lengthened her commute or made it more difficult for her to get to the FCR once she had entered the building. The disadvantage was that she did not have freedom of choice over which door to use.

378.3 Because of PCP 2.4, she did not have access, through the kitchen, to the balcony. This did not prevent her having fresh air. She was not subjected to any additional restriction (other than those which applied to all persons, mask-wearers or not) in going to the fresh air at the same time as others. She could not use that particular balcony, but she did have access to other places which had fresh air.

[379]We have mentioned above, in relation to PCP 2.2, that the Claimant, like others, was expected to ask for advice/assistance/support from a supervisor by using Skype or Teams. That requirement / expectation applied to mask wearers as well as to non-mask-wearers. The expectation does not appear to have been rigidly enforced as an outright ban on approaching the supervisor in person, for the Claimant (as the Claimant accepts in paragraph 59 of her witness statement) or any other employee. We are not satisfied that PCP 2.2 placed the Claimant at a disadvantage in comparison with persons who are not disabled.379.1 The Claimant has given no specific example of any occasion on which she was unable to obtain the advice via Skype, or of when she approached a supervisor in person and was turned away.

379.2 The only concrete examples of approaching a supervisor are to Pat Wallace, who did provide the advice (paragraph 42 of the Claimant’s statement) and to David, who said that he and the other supervisors did not mind if she approached them for a matter which was best dealt with in person (paragraph 59 of her witness statement)

[380]PCP 2.7 is discussed below when we address PCP 16.

[381]The next item in list of issues is II. If so, was it a reasonable adjustment to waive the above requirement(s). (That is: was it reasonable for the Respondent to have to take that step?)

[382]For ease of exposition, and to stick to the numbering in list of issues, the short answer is that out decision is “no”; it would not have been a step that it was reasonable for the Respondent to have had to take (in order to avoid or reduce the 93 of 140 disadvantages mentioned) to waive PCPs 2.1, or 2.3 or 2.4. (PCP 2.7 is discussed below.)

[383]Our more detailed analysis is below. 3. For any PCP listed in paragraph 2 (which the Respondent is found to have had), did the Respondent waive the requirement by making alternative arrangements for the Claimant to work without a face covering inasmuch as she was required to 3.1. work at a station close to the exit and entry point, 3.2. minimise their movement around the FCR, 3.3. use only one entry and exit point, 3.4. have her locker at a location closer to where she worked, and 3.5. use only the canteen facilities downstairs from the FCR. 3.6. have contact with colleagues predominantly by telephone, Skype or TEAMS (this particular mandate applied to all FCR staff). 3.7. be permitted to undertake IMU work at home or in isolation

[384]None of these things amount to “waiving” of any of the requirements in paragraph 2 of list of issues.

[385]What is true is that the Claimant did not have to wear a mask. She did not have to do so: when standing; when walking; when in the FCR room; when in the rest of the building (whether on her way to or from the FCR room, or at all); when in the kitchen; when at her locker; or at all.

[386]We have discussed item 3.6 already when addressing PCP 2.2. Our finding was that this was something that all employees (not just the Claimant) were expected do. The fact that it was an expectation to speak to a supervisor by phone, Skype or Teams (rather than a requirement enforced by disciplinary action) would not prevent it being a PCP. On the contrary, the requirement in 3.6 potentially does meet the definition of a PCP. However, in any event, it is not a “waiver” of anything in paragraph 2 of list of issues; it is simply a reflection of the fact that employees were discouraged from going to the desks of colleagues, regardless of the reason, and regardless of whether the colleague was a supervisor or not.

[387]Item 3.2 is similar to, but more general than, item 3.6. Others were also expected to minimise their movement, but mask-wearers had more flexibility than the 94 of 140

[388]We accept that the conscious reason for implementing the requirements itemised at 3.1, 3.3, 3.4 and 3.5 was to reduce the need for the Claimant (specifically) to walk across the FCR. Mask-wearers could walk across the FCR (for example, where necessary to reach their desk from the door, to go to and from the kitchen, or to go between their desk and their locker), albeit they were expected to minimise their movements around the room.

[389]The Claimant was potentially allowed to do IMU work at home. However, that is not a waiver of any of the requirements in paragraph 2 of list of issues.

[390]The next item in list of issues is: 4. Were such arrangements themselves PCP’s which placed the Claimant at a disadvantage when compared to non-disabled persons

[391]Our assessment is that items 3.1, 3.3, 3.4 and 3.5 were not PCPs.391.1 That is, each of them was not “a provision, criterion or practice” within the meaning of that phrase within section 20(3) EQA.

391.2 They were specific to non-mask wearers such as the Claimant, and in our judgment that means that they were defined as being applicable only to disabled persons.

391.3 They were not applicable to all disabled persons, because people with some disabilities wore masks. However, they did not apply to anyone who had no disability and who was (therefore) not exempt from wearing a mask.

391.4 Thus, taking account of the analysis of the Supreme Court in Onu v Akwiwu; Taiwo v Olaigbe (which addressed the meaning of the phrase " provision, criterion or practice” as used in section 19 EQA), because each requirement was imposed because of the protected characteristic (or, at least, something closely related to the protected characteristic), it is not of general application and falls outside the definition of PCP.

[392]Those who were able to wear a mask were subject to different requirements (not those at paragraphs 3.1, 3.3, 3.4 and 3.5 of list of issues). For mask-wearers the requirements included being told to put their mask on if they were observed without it (when, for example, going to their locker, going to the kitchen, etc).

[393]In relation to 3.2, in general terms, the requirement to restrict movement applied to all (and would be capable of amounting to a PCP in very general terms). However, the implementation was different for the Claimant. She was subject to some specific rules that did not apply to others. The reason for the different requirements was because of her protected characteristic; that is, the direct reason was that she could not wear a mask, but that in turn was because of her disability. 95 of 140 Thus the more stricter version of 3.2 that was applied to the Claimant (not to walk across FCR to go to kitchen, for example) was not a PCP; it was not applied to all employees.

[394]In terms of Item 3.7, it was possible to do IMU work in the office or at home or from somewhere else. However, none of those options were imposed on the Claimant; she had the opportunity, not the obligation (as did others). We do not regard permitting employees to do something (if they choose to do it) as being a PCP. The Claimant, and her colleagues, were not expected or required to work from home if doing the IMU work; working from home was simply one of the alternative options.

[395]Furthermore, even if item 3.7 was a PCP, it did not disadvantage the Claimant in comparison with persons who are not disabled, because it was not imposed on her.

[396]Item 3.6 was a PCP. It did not disadvantage the Claimant in comparison with persons who are not disabled as she had the same opportunity to talk to her colleagues while seated at her desk as they did, and that included talking to those within hearing distance “in person” and talking to those seated further away by using technology. 5. Would one, or more than one, of the following have been a reasonable adjustment to any of the (which the Respondent is found to have) PCPs as listed in paragraphs 2 or 3. That is: was it reasonable for the Respondent to have to take that step?: 5.1. Undertake a risk assessment involving a single member of staff not wearing a mask when standing, or

[397]Undertaking a risk assessment would not, in itself, reduce any of the disadvantages that we have found to exist, based on list of issues and as discussed above.

[398]The obligations are defined in sections 20 and 21 EQA (and the Schedules which are cross-referenced, and any regulations made under Section 22).

[399]In Tarbuck v Sainsbury’s Supermarkets Ltd

2006 IRLR 664

, there had been a failure to consult with the claimant over the steps that the employer might take. The EAT held that it will always be good practice for the employer to have discussions with the employee, and failing to do so might mean that it fails to identify a particular step that it was obliged (by what is now sections 20 and 21 EQA) to take. However, there is no separate and distinct duty on an employer to consult with a disabled worker. The only question is whether the employer has complied with its obligation to make reasonable adjustments. If the employer does what is required of it, then the fact that it failed to consult is irrelevant. Equally, if 96 of 140 the employer fails to do what the legislation requires, it is no defence to say that it consulted the employee prior to that failure.

[400]It is true that had a hypothetical risk assessment hypothetically stated that there was no risk if the Claimant did every single thing that her mask-wearing colleagues did, then it would be hard to see how imposing the restrictions on the Claimant would be anything other than a breach of EQA. However, in itself, the hypothetical possibility that a risk assessment might have said that (if carried out) does not mean that carrying out the risk assessment was a “step” required by section 20(3). We regard it as analogous to Tarbuck. An alleged failure (even if proven to be such) to investigate what adjustments might potentially be required is not, in itself, a breach of the duty to make reasonable adjustments. 5.2. Requiring all staff to sit at designated locations so as to enable contact tracing such that the Claimant was not treated differently, or 5.3. Requiring the Claimant to take regular lateral flow tests to demonstrate freedom from Covid,

[401]It is convenient to take these together, because there is an inconsistency.

[402]Item 5.2 implies that the disadvantage (at least in part) is being treated differently. However, item 5.3 suggests that the duty to make reasonable adjustments was such that a step which the Respondent was obliged to take was to require the Claimant to take regular lateral flow tests; effectively, as written, this implies treating the Claimant differently (although, in principle, it could be re-written as “requiring the Claimant and all the other staff working in the FCR to take regular lateral flow tests to demonstrate freedom from Covid”).

[403]In terms of item 5.2, it is not the case that every employee had the choice of every desk in the FCR. There were designated areas for each type of work and grade of employee.

[404]From the start of November 2020, the Claimant was on the CIRT Team and the seating arrangements are discussed in the email at [Bundle 1207]. As of September 2021, the seating arrangements were those set out in Ms Regan’s email at [Bundle 655], which was a choice of 8 work stations near to Mr Townsend’s office, or of the individual Perspex surrounded stations near to Ms Green’s office.

[405]The Claimant has not identified any particular difficulty with sitting in the desks allocated to her outside Mr Townsend’s office (though we accept, as did the Respondent, that those outside Ms Green’s were not suitable because the Claimant would have felt isolated. 97 of 140

[406]In the Claimant’s email of 4 November 2020 [Bundle 1208] and in paragraph 43 of her witness statement, the Claimant identified which desks Mr Wilde told her were available to her. Rather than any difficulty with the location itself, the issue, as hinted at by item 5.2, is that other people had a greater range of options for choice of desk than did the Claimant. The suggestion (in item 5.2) is that it would be a reasonable adjustment for the Claimant to stick to the designated locations that she was told she could use provided other people were also given a similar instruction.

[407]In her 4 November 2020 email, the Claimant refers to the need for colleagues to keep at least one desk free in her designated pod. It has not been shown that there were times when she needed to sit in that location, but was unable to do so. It has not been shown that there were particular occasions on which she had to ask people to move so that she could sit there.

[408]To the extent that the Claimant alleges she believed that there was only exactly one desk that she was allowed to use that is inconsistent with the email that she sent on 4 November 2020, and we find that it is not the case. Two days after the instruction had been given, the Claimant’s email of 4 November accurately described where she was told that she could sit, and, as per the email, she realised that she had a choice of four seats within that particular pod. Later, Ms Regan’s email in September 2021 stated that, in actual fact, there were 2 pods (8 desks) that she could use outside Mr Townsend’s office (not counting those available outside Ms Green’s office).

[409]It is not the Claimant’s argument that there would have been no failure to make adjustments so long as Mr Wilde had told her, in November 2020, that there were 2 pods / 8 desks available; as made clear in contemporaneous documents, and in her oral evidence, her position is that any restriction at all on her choice of desk (in comparison to colleagues in the same role) was a failure to make reasonable adjustments; that is, that the reasonable adjustment ought to have been that she did not have to comply with the mask-wearing policy at all (which is an adjustment which the Respondent made), but there was a breach of the duty imposed by section 20(3) and section 21(1) EQA if allowing her not to comply with the maskwearing requirement was accompanied by any differential treatment between her and colleagues. Thus, her argument is, that if everyone had had to adhere a limited choice of desks (similar limitations to those placed on her) then there would have been no failure to make adjustments.

[410]We have addressed above what were PCPs (and what were not) and whether any PCP put the Claimant at a disadvantage. However, even on the assumption that the Respondent had a PCP which placed the Claimant at a disadvantage, tt would not have been a reasonable adjustment to that PCP for the Respondent to have had to allocate specific desks to every employee in the FCR. 98 of 140410.1 The Respondent operated shift arrangements. When an employee arrived at the start of the shift then they were required to find a suitable empty desk.

410.2 Generally speaking, that would be not an unlimited choice of every desk in the FCR, but rather a choice of the empty desks in the particular area allocated to their own team.

410.3 Occasionally if all desks in that section were occupied when they arrived, they might sit elsewhere until one became empty and then move during the shift back to their own designated area.

410.4 To allocate a specific desk to every employee, the Respondent would have had to either ensure that there were enough desks for every single employee to have one each (and thus that the desk was not used while that employee was not on shift), or alternatively, come up with a plan which would ensure that no two employees who had been allocated the same desk were on shift at the same time.

410.5 Allocating a specific pod (so a choice of 4 desks rather than 1) to each employee would create similar difficulties. The Respondent would have to keep track of which employees were allocated to particular pods, and ensure that no more than 4 were on shift at the same time.

410.6 If the Respondent had been able to tell every employee that they had one desk only to sit in, they would also have had to give a single designated desk to the Claimant. That is to reduce her choice of seats.

410.7 We are not satisfied, on the evidence, requiring all employees to be (further) restricted in their choice of desk would necessarily have reduced the disadvantage that the Claimant perceived that she was placed at by being told to sit in one particular pod.

410.8 However, even if we are wrong about that (so even if this step would have reduced the disadvantage to the Claimant to any extent), it would not be a reasonable step for the Respondent to have had to attack.

410.9 We have taken into account the burden of proof provisions and if it were true that taking this step would reduce the disadvantage to the Claimant to any extent then it is up to the Respondent to prove that it would not be reasonable for it to have had to take this step.

410.10 We are satisfied that the practical considerations made this step impossible. The available seating in the FCR was already reduced from what might be considered normal times by the pandemic. Because of social distancing, the Respondent reduced the number of desks in a pod, from 6 to 4 (or in half a pod from 3 to 2). 99 of 140

410.11 We are satisfied, it would not have been workable to try to implement fixed seating arrangements.

[411]In relation to item 5.3, we will assume for the sake of discussion that the Respondent had an adequate supply of lateral flow tests at all relevant times. That assumption is not necessarily correct, but we make it for the purpose of the following analysis.411.1 The suggested adjustment would not in itself reduce any disadvantage to the Claimant. Rather, it would simply be an extra burden on the Claimant. By implication, she would be being singled out for lateral flow tests.

411.2 However, even if we consider an alternative “step” (potential adjustment) as being to require all of the employees in the FCR to take regular lateral flow tests, then again, that does not in itself reduce any disadvantage to the

411.3 Rather, item 5.3 of list of issues seems to be on the basis that the Claimant is actually suggesting that the Respondent would do two things.411.3.1 Do lateral flow tests (either for the Claimant alone or for everybody), and

411.3.2 Because it was doing lateral flow tests, eliminate any restrictions on the Claimant’s movements or seating arrangements.

[412]Neither party provided any specific evidence in relation to the relevance of lateral flow test results; that is, neither provided evidence about how reliable the Respondent thought they were, or should have thought they were.

[413]Lateral flow tests are referred to briefly in the FCR Contingency Planning document [Bundle 784] at [Bundle 853, 855] which implies that the Respondent did start using them for FCR staff around late February 2021.

[414]We take judicial notice of three matters.414.1 Firstly, the reliability of tests and the method of testing varied during the course of the pandemic.

414.2 Secondly, the tests (particularly early versions) were sometimes not particularly comfortable for the user.

414.3 Thirdly, the tests are not 100% reliable. False positives and false negatives both occurred to some extent. In other words, a negative test did not mean that it was impossible that the individual had Covid. The likelihood of a person testing negative, but actually having Covid, depended heavily on what proportion of the (relevant) sample of population had Covid. 100 of 140

[415]Thus, our conclusion is that, even if the Claimant took a test at the start of every shift, it would not be reasonable for the Respondent to have had to assume that there was zero risk that had the virus.

[416]We will discuss the restrictions themselves in more detail below, because that is where they have been placed in the list of issues.

[417]However, in summary, we have decided that the imposition of the restrictions did not amount to failure to make reasonable adjustments. Furthermore, our decision is while the restrictions were unfavourable treatment, the Respondent was able to show that the restrictions were a proportionate means of seeking to achieve a legitimate aim.

[418]In reaching those conclusions, we have taken into account – as per item 5.3 of list of issues – that it is a fact that the Claimant’s employer could – in theory - have decided to increase use of the lateral flow tests and decided that it would rely on negative test results instead of relying on the actual restrictions which it did in fact apply to the Claimant.418.1 However, we have not been persuaded by the Claimant’s evidence that - in reality - she would have been better able to cope with a requirement to take a lateral flow test (perhaps as often as once per shift) than she was able to cope with the actual requirements that the Respondent actually did put in place: namely to restrict where she could sit; restrict her from using a particular kitchen (meaning she could not use the specific balcony that was accessed via the kitchen) and requiring her to use a particular entry and exit points to FCR

418.2 We regard the Claimant as being truthful in her assertion on this point. However, even though the Claimant believes that a lateral flow test requirement (instead of the restrictions) would not have had the same effect on her mental health, her belief is untested, and unsupported by medical evidence.

418.3 The Claimant has stated that part of her anxiety in relation the restriction is that she was being treated differently to others. In the actual reality, the Claimant was not treated differently to others in relation to lateral flow tests. However, in the alternative reality, where the Respondent imposed - or sought to impose - lateral flow tests on the Claimant only, she would have been treated differently to others. We see no reason to decide that this particular hypothetical difference in treatment would have been regarded any differently by the Claimant than the actual differences in treatment which she says caused her anxiety.

418.4 Using lateral flow tests (for all employees, so not just the Claimant) instead of any mask wearing requirement (for any employee) and/or instead of the 101 of 140 restrictions placed on the Claimant might have been considered by some employers to be adequate. That is, some employers might have decided that there duty of care, and statutory obligations, for the health and safety of their staff were adequately performed by using lateral flow tests (only) without a mask requirement. However, the question we have to address (as per item 5.3 of list of issues) is whether it was reasonable for the Respondent to have had to take the step of using lateral flow tests and, as the case may be (therefore) abandon either

(i) the mask obligation for anyone in FCR and

(ii) as a minimum, the specific restrictions on the Claimant. Based on the evidence presented, the Respondent deciding to do lateral flow tests for all employees (for example, at the start of every shift) instead of the measures that it did impose (so mask wearing for those not exempt / other restrictions for those who were exempt from masks) would not have been a reasonable step for the Respondent to have had to do take.

418.5 We also do not think it is reasonable that the Respondent should have had to decide that as a reasonable adjustment for the Claimant, it would require her to do additional lateral flow tests (ie more than other staff). Furthermore, even had the Claimant undertaken additional lateral flow tests, we do not decide – based on the evidence presented - that it would have been a reasonable adjustment for the Respondent to have had to do this instead of, rather than as well as, any other measures. 5.4. To allow the Claimant to work in another office where staff were not required to wear face masks, or 5.5. Temporarily allocate the Claimant work in another department outside the FCR.

[419]We will treat 5.4 as meaning carrying out her normal duties (or some of them) but from another location. Some of her normal duties could only be done the FCR itself or from the other locations that were similarly equipped.

[420]We will treat item 5.5 as meaning any other duties (but not duties that would require the Claimant to work from home, as the Claimant did not want that, and would not have regarded it as a reasonable adjustment. Working from home was, in any case, an offer that was made to her, and so there was no failure to make adjustments in terms of any (alleged) failure to offer home working; the offer was made.

[421]For each of 5.4 and 5.5, we are satisfied that there was no other location on the site (or at the Respondent’s other premises) which met both of the Claimant’s following requirements.421.1 She wanted to be able to interact with other staff and therefore she did not want to be in a room by herself (or at home). 102 of 140

421.2 However, she also wanted to be free from any restriction in terms of walking around the room and entering and exiting the room, where she could sit within the room, et cetera. (By “free from any restriction”, we mean free from any restriction that did not apply to all other people, regardless of whether they were wearing a mask or not.)

[422]There potentially were rooms available, some of which would have allowed the Claimant to do FCR duties and some of which would have required her to do different activities. The Respondent was potentially willing to give her either such option.

[423]However, for each room that the Respondent had available such that it could allow the Claimant to work in it:423.1 Some were empty, and so the Claimant would have been by herself, which she did not want

423.2 Some had people in, who were currently observing whatever mask wearing requirements the Respondent had implemented for that room, and taking account of its current occupancy level. In such cases, where there were people in the room who were required to wear masks - and given that the Claimant was not able to wear a mask - that would have led the Respondent to make an assessment for that particular room and decide

(i) was the room suitable for a mask exempt person to work alongside non-exempt people and

(ii) if so, whether any, particular conditions would be imposed. In the FCR, for operational reasons, the decision had been made that persons seated at their desks would not wears masks (because they were required to use telephony equipment throughout their shift).

423.3 The arrangements suggested by paragraphs 5.4 and 5.5 of list of issues would not be such that the Claimant was necessarily able to use the kitchen next to the FCR room. She would, presumably, either (i) use the same kitchen as others in the room or else (ii) use a different kitchen to them if the Respondent decided – similar to its decision regarding the FCR room – that accessing a particular kitchen, by traversing a route to it without a mask – imposed to great a risk to colleagues. Either way, the Claimant would be using a different kitchen to the one next to the FCR. If it was the downstairs one identified by the Respondent, then that would have been no change to the kitchen arrangement which the Claimant did, in fact, have already.

423.4 While a move to a different room would - by definition - mean that she was not required to sit in the exact same pod in the FCR every shift, it would not have meant that she had a choice of sitting somewhere else in the FCR. It would not necessarily have meant that she had a free choice of where to sit in the new room. She would have had to abide by whatever restrictions 103 of 140 existed for the new room (amended, if at all, by the new circumstances of the Claimant being an additional user of the room).

423.5 While a move to a different room would - by definition - mean that she was not required to use the specific entry/exit point to FCR, she would be using some entry or exit point to the room that she was working in. Whether or not that would give her a choice of different entry points would depend on whether the room actually did have more than one entry point. The Claimant has not identified a particular room that she says was suitable for her.

423.6 In any event, even if the new room had more than one door, whether staff, including the Claimant, were free to use it might depend on whatever Covid restrictions applied in that room, and whether the Claimant was allocated a particular desk near to one entry or exit point.

[424]The Respondent has proved that it did not breach any duty (in section 21 EQA) based on the suggested reasonable adjustments, 5.3 and 5.4.424.1 The Respondent made offers to the Claimant. To the extent that the Claimant alleges that the offers were not sufficiently clear, we do not agree.

424.2 Mr Townsend’s 17 September 2021 email was clear that there might be a range of options available and he discussed some of those in the email.

424.3 He suggested that there could be interim arrangements and he gave some suggestions about how they might operate in the short term and how they might operate in the long term.

424.4 The Respondent was not purporting to insist on the Claimant changing her duties. However, Mr Townsend made clear that there could be a discussion with her about so doing.

424.5 It was clear that that’s what the offer was and it was clear that the Claimant was free to suggest particular options.

424.6 While there is no onus on an employee to come up with the reasonable adjustments that the Respondent has to make, in this particular case the adjustment which was being contemplated was a change of duties. There was an offer to have a discussion, with a view to reaching agreement, over a (temporary) change of duties. Firstly, the employer imposing a change of duties, without agreement, might be unwelcome to the employee. Secondly, since the purpose of the change was to seek to avoid/reduce a disadvantage that the Claimant perceived that she was at with the current arrangements, it was plainly sensible – in our judgment – that the employer should seek to explore with the Claimant whether the proposed new arrangements would in fact avoid/reduce the disadvantage. It would be pointless to change her 104 of 140 duties if she was in exactly the same (perceived) situation in the new role (albeit with restrictions based around a different location within the site, rather than those specific to her work in FCR).

424.7 It was made clear to the Claimant that the proposal to potentially change her duties was not going to go any further, unless the Claimant was potentially interested. Mr Townsend’s 17 September email was neither the first nor the last time that a potential move to alternative duties was mentioned to the Claimant. While it is true that she did not outright refuse, she was noncommittal.

424.8 We do not need to decide whether the Claimant’s duties could only have been changed with her agreement. Whether they could have been changed in the absence of her agreement or not, it would not have been reasonable for the Respondent to have had to change her duties without her agreement. It has not been shown that there was a combination of duties / workstation arrangement that would have removed the disadvantages that the Claimant perceived that she was at.

424.9 The Claimant’s argument that the Respondent failed to make reasonable adjustments by failing to be sufficiently definitive about what the new duties would be fails.

424.10 To the extent that it is suggested that Mr Townsend 17 September email was too little too late, it remains the case that it was four months prior to the Claimant’s resignation. We are not satisfied that the Claimant would have responded to the offer differently had it been made in writing by Mr Townsend earlier than it was.

424.11 In any event, this argument that it would have been a reasonable adjustment to do either of the things mentioned in 5.4 and 5.5 fails because we are not satisfied that doing either of the things would have reduced the Claimant’s anxiety, which is the disadvantage she says she was placed at by the particular restrictions which applied to the FCR room. 5.6. Arrange and/or complete mediation

[425]We referred to Tarbuck above when discussing item 5.1. Item 5.6 fails for similar reasons that we mentioned when discussing Tarbuck for item 5.1.

[426]It also fails because the Respondent arranged a meeting for the Claimant and Mr Townsend. The Claimant declined the meeting. She said she was(i) unavailable on the suggested date and

(ii) in discussions with ACAS and

(iii) she would update the Respondent as soon as she had further information. 105 of 140

[427]The Claimant made no concrete approach after that to say that ACAS had agreed to mediate, or to say that she was now willing to meet Mr Townsend on the basis that had been proposed for 30 December.

[428]To the extent that the Claimant argues that it would have been reasonable for the Respondent to have had to enter into without prejudice discussions, via the ACAS conciliator:428.1 That is not the same thing as mediation, and

428.2 it is not a failure to make a reasonable adjustment.

428.3 By definition the Claimant must be suggesting that such discussions would have resulted in the Respondent making a without prejudice offer of something that it had not already offered in the course of the formal processes. However, that is circular, because the types of things that the Claimant thought the Respondent should offer are discussed elsewhere in the list of issues, and we have addressed those individually. If the Respondent was not obliged (by the Equality Act) to offer those things to the Claimant on an unconditional and/or “open” basis, then it was not obliged (by the Equality Act) to offer them as part of settlement discussions and/or on a without prejudice basis.

428.4 If the suggestion is that it would not matter what they actually offered, just the mere fact alone of being willing to hold without prejudice talks would have reduced the disadvantage to the Claimant, then we do not agree. Her line manager contacted her during her absence, and so did Ms Regan, and so did Mr Townsend. The Claimant also had the FAW process which was conducted by Mr Patient. Her union representative attended meetings with her, and sent communications on her behalf, in addition to the items which the Claimant sent directly herself to the Respondent. The Respondent was in regular contact with the Claimant during her absence, and there mere fact of being willing to communicate with the Claimant via ACAS would have added nothing.

428.5 We make no assumption that the Claimant was seeking to discuss a severance package. However, if she was seeking severance, then any unwillingness on the part of the Respondent to offer a severance package would not be a failure to make an adjustment, as a severance agreement would not have preserved her employment. 5.7. Permit the Claimant to take unpaid leave or period of disability leave

[429]We are going to address PCP 2.7 separately. However, for all the other PCPs and disadvantages that we have discussed above, a period of leave (paid or unpaid) would not have reduced the disadvantage in question. Part of the Claimant’s case 106 of 140 is that she did not wish to work from home because it would isolate her and increase her anxiety. Being on leave would not be different to that.

[430]To the extent that the Claimant’s representative sought to argue that being on unpaid leave would effectively mean (to paraphrase) that the Claimant could do whatever she wanted in terms of leaving the house and socialising, whereas being on sick leave meant that she had to stay at home in case her manager called, we are not persuaded of that on the facts.430.1 There were a significant number of occasions when the Respondent attempted to contact the Claimant by phone or email and the Claimant did not respond until chased. We make no criticism of her for that. However, we are not persuaded that, at the time, the Claimant felt under pressure to respond promptly to the Respondent. Nor are we persuaded that her anxiety have diminished if the Claimant was told that she would not be contacted by the Respondent, but would not be paid either.

430.2 Further, in relation to unpaid leave, this is not something that the Respondent could have imposed in circumstances in which the Claimant was asserting that she was on sick leave. The Claimant had an entitlement to be paid for some of that period. It is true that the Respondent had a discretion as to whether to extend the paid sick leave, and that the Respondent did extend it. The Respondent could have unilaterally decided not to grant a discretionary extension to sick pay; however, the Claimant did request the extensions and they were granted (though the extensions ceased prior to the end of employment, in around early January 2022). In the absence of the Claimant specifically informing the Respondent that she did not wish to continue to be on paid sick leave, and instead preferred to be on unpaid special leave, it would not be reasonable for the Respondent to have had to take the step of ending her sick pay (earlier than it did) and of treating the Claimant as being on some other type of absence for which she was not paid.

[431]In terms of converting the sick leave to paid disability leave, in O’Hanlon v Revenue and Customs Commissioners

2007 ICR 1359

, the court of appeal upheld the decisions of both the tribunal and the EAT. On the facts of that case, there were no special circumstances such that the duty to make reasonable adjustments required the employer to pay the employee’s salary in full when, having exhausted entitlement to sick pay under the rules of the sick pay scheme, she was absent from work for a disability-related reason. This decision did not overturn the court of appeal’s earlier decision in Meikle v Nottinghamshire County Council 2005 ICR. However, the later case confirmed that an important feature of Meikle was: where the employee’s sickness absence had itself been caused by a failure to make reasonable adjustments, then that might imply that a reasonable adjustment is to continue full sick pay until (the reasonable adjustment has been put in place, and) the return to work has been facilitated. 107 of 140

[432]However, for a disability-related absence that has not been caused by the employer’s breach of the Equality Act 2010 (or by some other comparable duty to the disabled employee), the Tribunal should take account of the fact that the purpose of the legislation is to assist disabled workers to obtain employment and to be integrated into the workforce, and the purpose of the legislation is not to simply allow / require an employee to stay away from work on the basis that the employer pays them to be absent.

[433]Our decision is that it would not have been a reasonable adjustment for the Respondent to have simply said to the Claimant that she was on a period of paid special leave (with no obligations to comply with the policies regarding sick leave or sick pay).

[434]The next item in list of issues is: 9. Did the Respondent impose PCPs in or around November 2020 as follows: 9.1. The requirement to using a specific entry/exit point to the FCR 9.2. The requirement for staff unable to wear a mask not to use the FCR kitchen.

[435]The substance of item 9.1 is comparable to item 2.3, but is significantly different. There was not a general requirement imposed on all staff to use a specific entry exit point. There was such a requirement imposed on the Claimant, but that was because of the Respondent’s decision that she should have to do that because she was not wearing a mask. It was specific to the Claimant (and to others in the same situation according to the Respondent) and was connected to the protected characteristic of disability. Item 9.1 is not a PCP.

[436]The substance of item 9.2 is comparable to (part of) item 2.4, but is significantly different. There was not a general requirement imposed on all staff to use a specific kitchen. Other people had a wider choice of kitchen. However, the Claimant was not permitted to use the kitchen on the FCR floor. Restrictions on use of that kitchen was specific to the Claimant (and to others in the same situation according to the Respondent) and was connected to the protected characteristic of disability. Item 9.2 is not a PCP.

[437]We therefore do not need to address items 10 and 11 in list of issues. 12. Did the Respondent impose PCPs during the Covid pandemic as follows: 12.1. The requirement to wear a mask in order to have the full range of choices (for an employee doing a particular job) over which seat in the FCR they would sit in during their shift 108 of 140 12.2. The requirement to wear a mask in order to approach the desk of a supervisor to have a face to face discussion over any matter (including when the employee had a query or required assistance)

[438]For item 12.1, the answer is yes. It is subject to the qualification mentioned above, that no-one had an unfettered choice over seating. However, there was a requirement that, for an employee to have the option of sitting in any vacant seat within their own team’s area, for their own grade, the employee had to walk to that desk wearing a mask. They could take the mask off once seated, but the Respondent required staff to be wearing a mask to walk to (and then sit in) any of the pods other than those that the Claimant was told she could use.

[439]For item 12.2, we are not persuaded.439.1 As we have said above, the actual requirement was that every worker was expected to use phone / Skype / Teams if possible, rather than walk to the supervisor’s desk.

439.2 We are not persuaded that the Claimant was treated differently, for the reasons stated above.

439.3 While we fully understand the difference between “this was not a PCP” and “this was a PCP that was not always followed”, it is still up to the Claimant to prove that the Respondent had this PCP, and she has failed to do so.

439.4 The Respondent admits the part about everyone (whether wearing a mask or not) being “expected” to contact supervisors remotely. We acknowledge that an expectation can be enough for there to be a PCP, but we find that, on these facts, there was not a different requirement for mask-wearers compared to non-mask-wearers.

439.5 Someone who had a good reason to approach a supervisor would have to wear their mask if they were not exempt; when the Claimant did have a good reason to approach a supervisor, she did not have to wear a mask, because she was exempt, and she was able to approach the supervisor. 13. Did this place the Claimant at a disadvantage? If so, what?

[440]Item 12.1 placed the Claimant at a slight disadvantage because she did not have as many seats to choose from as comparable colleague did.

[441]Item 12.2 would potentially have placed the Claimant at a disadvantage if the quality of advice/support, or the speed with which she could access it, was delayed because of having to use only remote means to contact the supervisor, and not having the option to approach the supervisor’s desk if necessary. However, as we have already said when deciding that the PCP did not exist, in practice, the 109 of 140 Claimant was told that the supervisors would answer her queries if she did approach them without a mask. We have found that PCP 12.2 was not imposed by the Respondent, but, in any the Claimant was not disadvantaged - in comparison with persons who are not disabled – by the instructions given to staff about approaching supervisors. 14. Were the matters companied of above in para 3, 9 & 12 in fact reasonable adjustments (or part of a reasonable adjustment) to allow the Claimant to continue to work in the FCR without a face mask?

[442]It was a reasonable adjustment for the Respondent to decide that the Claimant did not have to comply with the face mask instructions that other employees were bound by.

[443]The things listed in paragraphs 3, 9, and 12 (and taking into account our findings of fact and analysis of those paragraphs) were not “reasonable adjustments”. That is they were not “steps” taken to comply with a requirement imposed by any of sections 20(3) and/or 20(4) and/or 20(5) EQA.

[444]The disadvantage to the Claimant (within the meaning of section 20(3) EQA) was that she could not wear a mask. Informing her that she did not need to wear a mask removed that particular and specific disadvantage.

[445]The things in paragraphs 3, 9 and 12 did not reduce or remove that particular and specific disadvantage.

[446]While the Respondent argues that the decisions that it took (which the Claimant refers to as “restrictions”) were, in fact, reasonable adjustments, our analysis is that a more accurate way of describing the Respondent’s position is that – effectively – the Respondent is seeking to argue that completely removing the mask wearing requirement for the Claimant, in a way which meant that the Claimant was treated identically to those employees who could wear masks (and therefore had to wear masks) was not a step which it was reasonable for it to have had to take.

[447]Instead, the Respondent’s argument is that it could make some changes to its PCP (the mask wearing requirement) so that the obligations on the Claimant (who could not wear a mask) were different than those for other people (those who could wear a mask). Its argument is that it would not have been reasonable for it to have had to implement the specific step which the Claimant sought, which was that she simply did not wear a mask, without any measure or restriction affecting her which did not also affect those who did wear masks.

[448]It is the reasonableness of the Respondent’s refusal to implement a full and unconditional removal of the mask requirement that falls to be considered. 110 of 140448.1 If it would have been reasonable for it to have had to allow the Claimant same choice of desks that her colleagues had, and/or the same choice of kitchen that her colleagues had, and/or the same choice of entry/exit that her colleagues had, then they have failed to make a reasonable adjustment to the mask wearing PCP.

448.2 Whereas, if it was not reasonable for the Respondent have had to do those things then there was not a breach of the duty to make a reasonable adjustment. However, in our assessment, it does not follow from this that imposing the particular restrictions on the Claimant – as conditions of waiving the mask-wearing requirement – became reasonable adjustments within the meaning of section 20(1) or 21(1) EQA. 15. Would it have been a reasonable adjustment (to the PCPs in paragraph 12) to do one or more of the following. That is: was it reasonable for the Respondent to have to take that step?: 15.1. Undertake a risk assessment involving a single member of staff not wearing mask when standing, or 15.2. Requiring all staff to sit at designated locations so as to enable contact tracing such that the Claimant was not treated differently, or 15.3. Requiring the Claimant to take regular lateral flow tests to demonstrate freedom from Covid, or 15.4. To allow the Claimant to work in another office where staff were not required to wear face masks, or 15.5. Temporarily allocate the Claimant work in another department outside the FCR. 15.6. Arrange and/or complete mediation 15.7. Permit the Claimant to take unpaid leave or period of disability leave

[449]It would not have been reasonable for the Respondent to have had to make these adjustments to PCP 12.1 for reasons similar to those mentioned when assessing items 5.1 to 5.7. 16. Between September 2020 and January 2022, did the Respondent impose a PCP of a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.

[450]This is effectively the same as item PCP 2.7, but for a more specific time period. It is convenient to consider PCP 2.7 and 16 together. 111 of 140

[451]It is true that an employee who hit one or more of the “triggers” in the policies was liable to potentially move to Stage 1 of the process. If they failed to meet the targets set at Stage 1, they would potentially move to Stage 2. If they failed to meet the targets set at Stage 2, they would potentially move to Stage 3.

[452]We have quoted from the policies above. In relation to formal action for short-term absences, it is significant that paragraph 4.3.1 of the Capability Policy includes: The process is designed to be progressive with each stage building on the action taken at the earlier stage(s) where the required improvement has not been made, therefore stages should not be skipped.

[453]Although the PCPs alleged by the Claimant are slightly vague, and are in broadbrush terms, our decision is that the Respondent did have PCPs 2.7 and16. These describe requirements that were applied to all employees, with or without disabilities. The fact that someone’s disability would be a relevant factor when making specific decisions was set out in the policy.

17. If so, did this place the Claimant at a disadvantage?

[454]The PCP disadvantaged the Claimant in comparison with persons who are not disabled because her disability made it more likely that she would have sickness absence, and therefore more likely to hit the triggers.

[455]She did, in fact, hit the triggers several times. 18. Was it a reasonable adjustment (to the PCP listed in paragraph 16) to do one or more of the following. That is: was it reasonable for the Respondent to have to take that step? 18.1. Not apply the “mask” policy to C in accordance with government guidance such that C could attend work, or

[456]This is not actually an adjustment to PCP 2.7 or 16. However, in any event, the Respondent did allow the Claimant to attend work without a mask.

[457]Thus there is no failure to make adjustments in relation to suggested step 18.1. 18.2. Increase the threshold for absences, or waive or not impose the sanctions, 18.3. Allow the absence to be treated as disability leave, or 18.9. Permit the Claimant to take unpaid leave period of disability leave

[458]These are similar to each other, and so we address them together.

[459]The difference between the items is effectively: 112 of 140459.1 18.2 does not address whether the Claimant’s sick pay would be full, half, or nil. The absence would be classed as sick leave. However, effectively, the Claimant would be on an indefinite absence from work until such time as she was able to return, and without any “stages” of the absence procedure being followed. (The suggestion of “increasing the threshold” - as opposed to waiving the requirement – is very vague. It would obviously lead to the question of what the increased levels ought to be. However, in the Claimant’s case, she far exceeded the trigger levels, and the Respondent did not immediately take formal action each time she hit a new trigger.)

459.2 18.3 suggests that the Claimant should have had paid special leave. So the absence would not have been classed as sick leave. Similar to 18.2, the Claimant would be on an indefinite absence from work until such time as she was able to return, and without any “stages” of the absence procedure being followed.

459.3 18.4 suggests that the Claimant would have had unpaid leave. Similar to 18.3, the absence would not have been classed as “sick leave”. Similar to 18.2, the Claimant would be on an indefinite absence from work until such time as she was able to return, and without any “stages” of the absence procedure being followed

[460]The purpose of reasonable adjustments is to facilitate a disabled person to remain in employment and to be able to work. None of the suggested adjustments at 18.2, 18.3 or 18.4 would have enabled the Claimant to carry out any duties for the Respondent, whether at home or elsewhere, or whether in her substantive role, or a different one.

[461]As part of the process of attending the Stage 1 and Stage 2 meetings, and the Stage 3 meeting had it been scheduled and gone ahead, the Claimant would have had the opportunity to suggest things that the Respondent could do to facilitate her return to work.

[462]It would not have been a reasonable adjustment for the Respondent to have had to simply left the Claimant at the informal stage, without progressing to Stage 1. Similarly, it would not have been a reasonable adjustment for the Respondent to have had to simply left the Claimant at Stage 1, without progressing to Stage 2. If the Claimant’s employment was ever to be terminated based on absence levels (as opposed to a long-term inability to work as per section 4.9 of the Capability Procedure), stages 1 and 2 were each stages that had to be completed. It was not inevitable that an employee who progressed through some of the stages would be dismissed; however, it was inevitable that an employee who did not go through those stages could not be dismissed (in reliance on section 4.7 of the Capability Procedure). 113 of 140

[463]The Respondent did take steps to reduce the disadvantage to the Claimant, including sending frequent updates to her, having a Stage 1 appeal, and a Stage 2 appeal, and referring her to OH. 18.4. Require the Claimant to take regular LFT tests to demonstrate she did not have Covid and thus be able to attend work, or 18.5. Allow the Claimant to work in one of the many other offices where other people worked and which were not subject to the same alleged criteria as the FCR and thus be able to attend work, or 18.6. Temporarily second the Claimant to a different department outside of the FCR and thus be able to attend work, or

[464]These are not actually adjustments to PCP 2.7 or 16.

[465]The comments we made about items 5.2 to 5.6, in relation to why these suggestions did not demonstrate failures to make reasonable adjustments to PCPs in paragraphs 2 and 3 of list of issues also apply to the suggestion that these steps should have been adopted. 18.7. Remove the mask policy for all given the government declaring the end of all Covid requirements

[466]This is not a step that it would have been reasonable for the Respondent to have had to take.

[467]The Respondent has a common law duty of care to its employees, as well as statutory obligations.

[468]The Respondent was obliged to identify the risk (if any) of any of its employees catching Covid while at work. That could potentially include the risk of catching Covid from a work colleague while they were both at work.

[469]Different employers and different organisations potentially assessed the risks differently.

[470]The Claimant herself did not believe (in the early stages, at least) that there was a zero risk of catching Covid from a work colleague. Hence, she chose to work alone in a pod for the first few weeks to (as she saw it) help reduce the risk that she might catch Covid at work and pass it on to her mother.

[471]It is not the case, in our judgment, that if the Respondent cannot prove that there was some measurable benefit to wearing masks, then it would have been a reasonable adjustment for it to have had to remove the mask-wearing PCP completely (for all staff; or for all in FCR). 114 of 140

[472]It is not the case, in our judgment, that if some different employer decided that there was no benefit to wearing masks, then it would have been a reasonable adjustment for this respondent to have had to remove the mask-wearing PCP completely (for all staff; or for all in FCR).

[473]Similarly, and even more so, it is not the case, in our judgment, that if some employers decided that the disadvantages of imposing mask wearing outweighed any health and safety benefits, then it would have been a reasonable adjustment for the Respondent to remove the mask-wearing PCP completely (for all staff; or for all in FCR).

[474]We are satisfied that this employer did carefully consider the pros and cons of requiring its employees to wear masks, and did take into account the particular numbers of employees in the FCR. We are satisfied that, in discharging its obligations to assess risks to its employees, it did decide that its mask-wearing requirements were an appropriate control measure for the risk. We are satisfied that it decided that making mask-wearing purely voluntary within FCR would not have been a sufficient control measure.

[475]We are satisfied that the Respondent took a rational approach and that it did not interpret the guidance that it received in any capricious way. It is the Respondent which would have had to defend itself against any claims for personal injury, or any prosecution, if it was alleged that its steps to seek to control risk were not adequate.

[476]Our assessment is that failing to implement suggested adjustment 18.7 did not contravene EQA. 18.8. Arrange and/or complete mediation

[477]Our assessment is that this fails on the facts. The Claimant was offered the opportunity to meet with Mr Townsend. Although part of her reason for rejecting the specific appointment on 30 December was stated to be health/availability, that was not the only reason which she gave.

[478]Given that the Claimant specifically wrote, on 28 December 2021, that she would be in touch (as well as stating that she wanted ACAS to be involved), it would not have been reasonable for the Respondent to have had to specifically and proactively suggest new dates for meetings prior to the Claimant confirming that she was willing to meet Mr Townsend, and/or unless and until the Claimant specifically made an alternative suggestion. In saying this, we take into account that Ms Hill sent the offer on 21 December, and chased the Claimant on 22 December, and that Mr Carver told the Claimant, on 23 December, to contact Ms Hill. 115 of 140

[479]The Respondent demonstrated a willingness to engage in dialogue with the Claimant and made specific suggestions. The Claimant did not respond constructively, and it was not a failure to make reasonable adjustments that the Respondent failed to do more than it did do in order to offer a meeting to the Discrimination for something arising from disability s15 EQA19. The Respondent accepts that there was “something arising in consequence of” the Claimant's disability, being the inability to wear a mask

20. Did the Respondent treat the Claimant unfavourably as follows. That is, did the alleged treatment occur and, if it did, was it unfavourable. Furthermore, if so, was it because of the “something” in paragraph 19.: 20.1. Not permitting the Claimant to work as usual, just without a mask.

[480]The treatment described in paragraph 20.1 of list of issues was unfavourable treatment, although this general comment adds nothing to the specific items upheld below. 20.2. Requiring the Claimant to be located apart from co-workers

[481]This fails on the facts. The Claimant did not have the same range of seats to choose from as her colleagues (from November 2020 onwards) but she did not have to sit further from them than they sat from each other. The desks were more than 2m apart, but not much more than that.

[482]If this is an allegation to the period earlier in the pandemic when the Claimant sat apart from co-workers, before the mask-wearing requirement came into effect, because of the Claimant’s concerns about the Covid risks to her mother, that was not unfavourable treatment. The Claimant requested it and the Respondent accommodated it, and it was for the Claimant’s benefit. 20.3. Requiring the Claimant to access support via TEAMS and not face to face.

[483]The treatment did occur, in the sense that employees were asked to do this. It was not treatment that was because of something arising in consequence of the Claimant’s disability. It was the same requirement for her colleagues. Further, in practice, supervisors did answer the Claimant’s queries if she approached them without a mask, just as they answered her colleagues’ queries if those colleagues approached the supervisor while wearing a mask.

[484]The allegation that paragraph 20.3 amounts to discrimination within the definition in section 15 EQA fails. 20.4. Requiring the Claimant to use a specific kitchen 116 of 140 20.5. Refusing the Claimant access to the balcony 20.6. Requiring the Claimant to use a certain entrance and exit

[485]Each of these things did occur and amounted to treating the Claimant unfavourably. Each of them was because of the “something arising” at item 19 of list of issues. 20.7. Subjecting the Claimant to the capability process

[486]The individuals who took the decision to take actions under the capability process were Dan Carver and Hannah Regan. We are satisfied that what motivated each of them was the Claimant’s absence.

[487]If the absence was caused by the “something arising” described item 19, then that would be sufficient to meet the requirements of section 15(1)(a).

[488]The Claimant had absence because of anxiety in 2019, between 31 January and 24 February, and again between 7 March and 6 May 2019, and again from 10 to 15 September 2019. That was all pre-Covid.

[489]The Claimant had absence because of anxiety in 2020, between 27 July and 12 September 2020. This was after the start of Covid, but before the mask wearing requirement.

[490]The Claimant had no absence because of anxiety between 13 September 2020 and 27 April 2021. The mask-wearing requirement commenced about one month into that period, and the restrictions on the Claimant commenced about 6 weeks into it. The restrictions lasted for about 6 months (from early November 2020) before the start of the Claimant’s next, and final, sickness absence period.

[491]There is no evidence to contradict the Claimant’s opinion that the restrictions caused her extra anxiety. We therefore accept that they did. It is entirely a matter of speculation whether, but for the restrictions, the Claimant would have remained in work, or still had an absence period commencing 27 April 2021. However, based on the Claimant’s uncontradicted account, one of the things which caused her anxiety was these restrictions, and it follows that the anxiety levels might not have been high enough to require absence but for the restrictions.

[492]We accept therefore that there is a sufficient connection between the something arising identified in item 19 of the list of issues and the unfavourable treatment identified in paragraph 20.7. 20.8. Refusing to uphold the FAW

[493]This was not because of the “something arising” set out in paragraph 19 of list of issues. 117 of 140

[494]We accept that Mr Patient’s decisions were genuinely for the reasons which he supplied to the Claimant in the draft, and then final, versions of his report. 21. Was any of this treatment (to the extent that it did occur) a proportionate means of seeking to achieve a legitimate aim (the alleged legitimate aim being: to preserve the health and safety of(i) the Force Control Room staff and

(ii) staff in general)

[495]In relation to paragraph 20.1, it adds nothing specific to what is dealt with in the other sub paragraphs and therefore we do not address it separately.

[496]In relation to paragraph 20.7, those things were not a means of seeking to achieve the legitimate aim described in paragraph 21. However, we address the (alleged) legitimate aim that the Respondent says justifies that treatment when discussing paragraph 22 of list of issues below. For the reasons given there, the allegation that the treatment described in paragraph 20.7 was discrimination within the definition in section 15 EQA fails.

[497]The Respondent did have the aim of seeking to preserve the health and safety of its staff. That included the staff within the force control room and it included staff in general.

[498]Each of the actions described in paragraphs 20.3 (which we did not find to be because of something arising inconsequence of the Claimant’s disability), 20.4, 20.5 and 20.6 were taken as a means of seeking to achieve that legitimate aim.

[499]It follows therefore that we must address proportionality as described in the legal section above. We must take into account the discriminatory effect on the Claimant of the unfavourable treatment and weigh that against the importance to the Respondent of achieving the legitimate time. We must take into account whether or not any different steps could have been taken by the Respondent which would have been just as beneficial from the Respondent’s points of view towards achieving the legitimate aim, but which would have had less of an adverse effect on the Claimant.

[500]We must also consider whether there has been a failure to make reasonable adjustments which has caused, or contributed to, or exacerbated the adverse effect on the Claimant. Any such failure is likely to lead to the conclusion that the Respondents has failed to prove the defence described in section 15(1)(b).

[501]Two of the points which the Claimant makes in relation to this exercise are as follows. Firstly, when the mask wearing requirement was introduced, Vanessa Green stated that there was no scientific evidence about the effectiveness of masks. Secondly the Respondent has neither produced a risk assessment nor any scientific evidence in relation to the particular restrictions on the Claimant described in paragraphs 20.4, 20.5, 20.6 of the list of issues. 118 of 140

[502]Both of these assertions are factually accurate. No document has been produced to the tribunal (either one that existed at the time, or one that was created subsequently) that shows - for example - the risks of catching Covid at work in various different hypothetical scenarios. There is, therefore, no report by an expert that compares how the risk to an employee (of catching Covid at work) are affected if various different potential control measures were implemented, or if no such measures were implemented.

[503]One feature of the decisions made for FCR was that while people were sitting at their desks then they would not have to wear masks. This was for operational reasons, including the Respondent’s assessment that wearing a mask would interfere with the effectiveness of the duties (which included taking calls from members of the public sometimes in emergency situations).

[504]However, a measure which the Respondent introduced was that – other than when sitting at their desks working - the requirement was to wear mask at all other times. That included: coming in and out of the building; coming in and out of the FCR; leaving their desk for any purpose whether to go to the kitchen, or to the toilet, or to their locker, etc.

[505]In principle, there could have been an attempt by the Respondent to seek a report from an expert which compared the risks of infection in the scenarios of (for example):505.1 nobody wearing a mask at any stage,

505.2 everybody who was allowed access to FCR wearing a mask at all times and

505.3 the actual policy that was implemented as described above.

[506]Such a report might have included - in theory - an assessment of how the risks were affected by the existence of people who were exempt from wearing a mask at any time. So there could have been a comparison between:506.1 completely banning mask exempt people from the force control room,

506.2 completely freeing the mask exempt individuals from any restrictions (other than those which applied to mask wearers),

506.3 alternatively something that was in between those extremes, such as allowing mask exempt people to work in the FCR but with some other control measures in place

[507]Although the tribunal has not received any such scientific or expert evidence, we do not think it is legitimate for us to proceed on the basis that if a report had been commissioned then it would have stated that there was no additional risk whatsoever from allowing mask exempt people to work in the control room (with 119 of 140 no additional restrictions whatsoever) in comparison to a mask-wearing policy in which everyone in the room wore masks (other than when seated).

[508]A conclusion that there was no additional risk whatsoever from allowing mask exempt people, no matter how many, to work in the FCR with no restrictions, would effectively be a conclusion that there was no benefit whatsoever from the actual policy that was adopted. In other words it would be a conclusion that the risk of an employee in the FCR catching Covid from another employee in the FCR would be exactly the same regardless of whether the Respondent implemented the mask wearing policy (which it adopted in October 2020) or else whether it decided that there was no need for any of its employees in the FCR to wear masks at all

[509]Our decision is that it was reasonable for the Respondent to have decided that there was some non-zero risk to workers in the FCR room of catching Covid from a colleague while they were both working in the FCR room. This certainly seems to have been the Claimant’s opinion too, at least in the early days of the pandemic. As we have said, for that reason, she worked apart from colleagues because she was concerned that if she caught Covid at work she might in turn infect her mother who was vulnerable.

[510]We take judicial notice of the fact that early in the pandemic the advice from government was that mask wearing was not necessary and was potentially not effective. Later in the pandemic, more masks did become available. The advice available to employers from various sources did change and the advice included that(a) masks were by no means a certain method of avoiding infection and

(b) that wearing a mask was of little benefit to the person wearing it if they were in contact with someone who was not wearing a mask and

(c) that if individual who had Covid did wear a mask, then the chances of that person infecting another were reduced in comparison to not wearing the mask. The risk was not reduced to zero or close to zero, but it was reduced.

[511]In terms of the balancing exercise which we must perform, we do note that we have not received expert evidence which specifically addresses the particular restrictions that were placed on the Claimant. It is up to the Respondent to prove its defence and to prove that the actions it took were proportionate. Actions which had no beneficial effect on achieving the legitimate aim cannot help the defence. Furthermore, the onus is on the Respondent to show that the beneficial effect towards achieving its legitimate aim was sufficient to justify the discriminatory effect on the Claimant.

[512]However, the mere absence of an expert report is not – in our judgment – a basis for us to draw any adverse inferences against the Respondent. We do not think that it would be possible to obtain a expert report which precisely quantified the difference in risk between the Claimant operating in the room with no restrictions 120 of 140 whatsoever in comparison to her operating in the room but with the particular restrictions that were put in place

[513]Even in the absence of an expert report, there is sufficient evidence and information for us to conclude that there was some difference (in terms of the risk of a colleague with Covid infecting another colleague while both were in the FCR) between the situation of allowing mask exempt individuals to work in the room compared to banning them from the room completely.

[514]There would be, we are confident, some baseline risk of catching Covid in the room from the fact that people were generally not wearing masks while sitting at their desks. That baseline risk would not have been eliminated if the rule had been that people had to wear masks at all times even when seated.

[515]Our assessment is that – although not precisely quantifiable - the risk of catching Covid was greater if there was no mask wearing requirement at all compared to the actual policy (some mask wearing, albeit not throughout the entire shift) that the Respondent did introduce.

[516]We are also satisfied that the risk would have been increased again if nobody had to wear masks at any time in the room. To state what we consider to be obvious, if one person was infected with Covid and was working in the room and complying with the Respondent’s mask wearing policy (including not wearing a mask while seated), then there was not a 100% chance that every other person on that shift would become infected, but there was a non-zero chance that one or more colleagues would become infected. If there was a 100% chance of a singled infected person infecting every colleague just by being seated at their desk without a mask, then clearly wearing a mask to walk around the room would be of no benefit whatsoever. However we are satisfied that that is not the case. We are satisfied that the additional restriction of wearing a mask to walk around the room did add some additional benefit, over and above that which was obtained simply by the requirements to keep desks at least two metres apart, and to minimise movement around the room, and to wash hands frequently.

[517]Since the Claimant was mask exempt that additional benefit (obtained by a person wearing a mask to walk around the room) was not obtained in her case. If, at any given time, the Claimant had Covid then:517.1 The chances of her passing that on to one of her colleagues while she was seated at her desk were no different to the risks of one of her colleagues passing on Covid while sitting at their desks. In each case, the claimant or the non-exempt person were not wearing a mask while seated.

517.2 However, the Respondent has discharged its burden of satisfying us that the risks of the Claimant passing on Covid while walking around the room were greater than the risks of one of her colleagues passing on Covid while walking 121 of 140 around the room. This is because the Claimant was walking around the room without a mask (because of her exemption), but non-exempt colleagues did wear a mask to walk around. (In each case, whether mask-exempt or not, the expectation was to minimise movement; however, that is a separate point.)

[518]What we have said takes no account of the fact that different individuals were potentially more or less likely to catch Covid while away from work. A person who had a low risk of catching Covid inherently had a low risk of being someone who infected one or more of their colleagues in the FCR. However the Respondent had no reasonable means of assessing - on a case by case basis - how likely it was that a particular individual would catch Covid.

[519]We do not conclude that the Claimant was more likely to catch Covid than somebody else. The fact that she was mask exempt does not necessarily mean she was more likely to catch it; the Claimant might have been more cautious than people who were wearing a mask, for example. In any event the range of risk taking by her colleagues no doubt varied from person to person.

[520]One thing we have to consider is whether the restrictions introduced by the Respondent were arbitrary. We do not think that they were. We do not think that it would be possible to come up with precise percentage figures of how much the risk of Covid being passed on to a colleague would be increased or decreased by, for example, allowing the Claimant to have a free choice of desk within her team’s area, and/or the freedom to walk across the FCR to the kitchen, and/or free choice of entry and exit points from the FCR. However in each case there was a rational basis for the restriction which the Respondent imposed. The number of occasions in which the Claimant would need to pass colleagues within the room was reduced and the number of colleagues which she would need to pass was reduced.

[521]The actual chance of the Claimant passing on Covid to a colleague in the FCR depended most heavily on the chance of the Claimant having Covid in the first place. If she did not have the virus, she would not pass it on, mask or no mask. However, it was reasonable and proportionate for the Respondent to implement measures which would apply at all times including at the vast majority of times when the individual did not have Covid, to guard against the infection risks from when they did have it

[522]The Respondent assessed the risks to an individual employee, who did catch Covid, as being significant, including risk of death.

[523]It is the Claimant’s suggestion that a less discriminatory measure would have been to require her to undertake regular lateral flow tests. If the tests were hypothetically 100% accurate, and if the Claimant took one at the start of each shift, and if it could be assumed that she would not, during the shift, catch Covid from one colleague 122 of 140 and then pass it on to another, then the potentially could have been a rational basis for the Respondent to state that provided the Claimant did take a lateral flow test at the start of each shift she did not need to be under any restrictions whatsoever.

[524]It should be pointed out that, on that set of assumptions, there would be no need for anybody to wear a mask because it would follow that the Respondent had a completely guaranteed method of ensuring that at the start of each shift everybody who came in to the FCR did not have Covid and (therefore) posed no risk of passing it Covid on to a colleague.

[525]However we do not think that the assumptions all hold. The tests were not 100% accurate, for example.

[526]We also take into account that the actual process of having a test had some effect on an individual. There was a need to place the testing equipment in the nose and or the throat.

[527]The restrictions imposed did have some effect on the Claimant.

[528]We do not think the restricted choice of desks had any particular disadvantage to the Claimant in itself. That is, in absolute terms, there was nothing “worse” about the desks she could use compared to those that she could not. The alleged disadvantage of the desk requirement was that the Claimant was being treated differently to other people.

[529]One way in which the Claimant was treated differently is that her colleagues were required to wear masks, and the Claimant was not. The Claimant suggested that that difference in treatment would be eliminated if the colleagues did not have to wear masks either.

[530]As far as the Claimant’s other suggested alternatives for avoiding the specific restrictions which the Respondent chose to implement, several of the Claimant’s own suggestions would also require her to be treated differently.530.1 Testing the Claimant, but not everyone, everyday with a lateral flow test would be treating her differently

530.2 Moving her to alternative duties or alternative locations would be treating her differently

530.3 Placing the Claimant on special leave would be treating her differently

[531]Although the desk restriction (treating the Claimant differently by restricting choice of desk) and the mask issue (treating the Claimant differently by requiring her colleagues to wear masks) are not within the items 20.4 to 20.6, we take them into account as we have to consider the unfavourable treatment against the full background situation. 123 of 140

[532]Turning specifically to items 20.4 to 20.6 we comment on them each individually below but for the avoidance of doubt we have also assessed the cumulative effect of the restrictions

[533]For item 20.6, on the evidence presented to us this was a fairly minor restriction. The Claimant did not have the full choice of which entry and exit points to use but no particular disadvantage to her has been highlighted other than it meant she was being treated differently to others. On the basis that the combined effect of the Claimant being told to sit in a particular pod and to use a particular entrance into the room was that she had to walk past fewer pods than she might otherwise have done had she for example chosen a pod nearer to the middle of the room and or an entry point further away from the pod she was going to sit at, we are satisfied that the benefits to the Respondent in seeking to pursue its legitimate aim of preserving the health and safety of its employees outweigh the discriminatory effect on the Claimant.

[534]Items 20.4 and 20.5 need to be analysed together because in each case the alleged benefit to the Respondents is that the Claimant would not be walking across the room to the kitchen. We do take into account the Claimant’s suggestion that instead of banning her from this particular kitchen and therefore from the balcony which could only be accessed via the kitchen, the Respondent could instead have introduced a rule that she could go out of the FCR and walk around the building until she accessed the kitchen by a different route. To the extent that it is the Claimant’s complaint that she was treated differently, this alternative suggestion on her part would still have meant she was being treated differently. What the Respondent implemented was that she had full access to a different kitchen - which was larger – and also had access to open air.

[535]We received no specific evidence about how many people were allowed to be in the FCR kitchen at any given point in time and whether the number of people allowed in the downstairs kitchen was exactly the same, or was more, or was less.

[536]However, it was a larger kitchen and therefore we are satisfied that the number of people allowed in the downstairs kitchen at any one time was not fewer than that in the FCR kitchen. It is not the case that the Claimant’s colleagues from the FCR room were banned from using the downstairs kitchen. It is not the case that the Claimant’s colleagues were banned from going downstairs and using the same open air space to which the Claimant had access downstairs.

[537]It was a significant imposition on the Claimant that she had to use a kitchen that was further away.

[538]We are performing our own independent balancing exercise as opposed to merely considering whether the Respondent did something that was within “the band of reasonable responses”. However, we have to try to put ourselves back in the 124 of 140 situation as existed between October 2020 and January 2022. The situation was not identical in each one of those months. On the contrary the situation changed rapidly during the course of the pandemic. That being said the death rate from the pandemic was a major feature of news bulletins. The pandemic and its effect on the life of the country dominated news bulletins, government announcements and employers’ thought processes. The policing function was affected in various ways.

[539]We reject the Claimant’s arguments that the only reason that any restrictions were put on her was that other people complained. However we also reject the Claimant’s implication that it would potentially have been unreasonable for anyone else to raise concerns about the fact that the Claimant was not wearing a mask. We reject the implication that the only appropriate response from the Respondent to such individuals was to tell them that there was nothing to complain about because the Claimant was mask exempt. Amongst other things, just as the Respondent had a duty to take the Claimant’s mental health into account, it had a duty to take both the physical health and the mental health of the Claimant’s colleagues into account.

[540]Having first explored with the Claimant whether there were any alternatives in terms of the type of face covering that she might be able to wear if she could not wear a mask the Respondent acknowledged and accepted the fact that the Claimant was mask exempt and would not have to wear a mask; it does not follow from that - however - that it was unreasonable for a colleague to be concerned about the chances of catching Covid from the Claimant.

[541]As the Claimant herself is aware, the anxiety that a person might have about catching Covid was not only about the risk to their own health or their own life but was also about the risks that if they caught Covid at work they might in turn pass it on to vulnerable people in their family.

[542]The benefits therefore to the Respondent of the extra restrictions is not only to the physical health and safety off the other colleagues by reducing the chance of them catching the virus but the effects on the colleagues’ mental well-being as well.

[543]While we sympathise with the fact that the Claimant did not have the chance to see the appreciation board in the kitchen, we are satisfied that in all the circumstances the way in which the restrictions helped the Respondent to seek to achieve its legitimate aim outweighed the discriminatory effects on the Claimant of not having access to the particular kitchen in question and therefore to the particular balcony in question as well.

[544]There was an effect on the Claimant of the restrictions. However, the effect was not huge. She was able to speak to colleagues within FCR (those within earshot of her desk) and, if they chose to come to the downstairs kitchen, or the open air space downstairs, outside FCR. 125 of 140

[545]In terms of the benefit to the Respondent, we are not comparing (for example) a 100% chance that at least one employee would have caught Covid from the Claimant if there was no restriction compared to a 0% chance of any employee catching Covid from the Claimant with the actual restrictions that were put in place. A lot of different factors were relevant to what percentage risk (if any) there was of any of Claimant’s colleagues catching Covid from her. However, given the potentially serious consequences (ie death for the colleague, or of a vulnerable relative of theirs to whom they passed on the virus), we are satisfied that the imposition of the restrictions – in an effort to minimise risks to colleagues – outweighed the discriminatory effects on the Claimant.

[546]In reaching this conclusion, we are not satisfied that, but for the restrictions, the Claimant would have been at work. That is not what she was saying contemporaneously when she was asked about potentially being able to return.

[547]Thus, for each of the treatment at paragraphs 20.4 to 20.6 of list of issues, our decision is that the defence in section 15(1)(b) EQA has been proven by the Respondent.

[548]We address paragraph 20.7 below. 22. The Claimant alleged that there was “something arising in consequence of” the Claimant's disability, namely absence from work. The Respondent does not concede that every period of absence was because of disability, and so the Tribunal will need to decide which (if any) period of absence was “something arising in consequence of” “the Claimant’s disability.

[549]We accept that the absence which arose in consequence of the Claimant’s disability is the five periods identified on page 213 of the bundle as “Psychological Disorder” for “anxiety” or “stress”.549.1 The first period was around 24 days: 31 January to 24 February 2019

549.2 The second was around 60 days: 7 March to 6 May 2019

549.3 The third was around 6 days: 10 September to 15 September 2019

549.4 The fourth was 47 days: 27 July to 12 September 2020

549.5 The fifth, which commenced 28 April 2021, lasted until the end of employment on 26 January 2022. Therefore it had lasted 273 days by the end of the Claimants employment

[550]That fifth absence had lasted around 112 days by 18 August 2021 which is when the final written warning was issued [Bundle 488]. 126 of 140

[551]That fifth absence had lasted around 217 days by 1 December 2021 which is when Ms Regan contacted the Claimant to say she wished to review the action plan and have a general catch up. It had lasted a further six days by the time the Claimant was informed that the intention was to convene a stage 3 meeting.

[552]The continuous absence had lasted approximately 264 days by the time Hannah Regan sent the letter of 17 January 2022 [Bundle 975] which is cited in full in the findings of fact. If, and to the extent that, there was absence arising in consequence of disability, did the Respondent treat the Claimant unfavourably as follows. That is, did the alleged treatment occur and, if it did, was it unfavourable. Furthermore, if so, was it because of the “something” mentioned above in this paragraph: 22.1. Subjecting the Claimant to the capability process and issuing her with a first written warning (around 23 September 2020) and then final written warning (around 18 August 2021)

[553]In terms of paragraph 22.1 of the list of issues, there are two separate items 11 months apart. It is necessary to consider each of them separately.

[554]Each does meet the definition of unfavourable treatment.554.1 Any employee would prefer not to have a warning than to have it.

554.2 Furthermore the procedure makes clear that none of the stages will be skipped. Therefore receiving a formal warning at stage 1 is a prerequisite of moving to stage 2 which in turn is a prerequisite of moving to stage 3.

554.3 While dismissal is not an inevitable outcome of stage 3, dismissal is not an option at stage 1 or stage 2 and therefore moving through stages 1 and 2 does move the employee potentially closer to the stage at which dismissal will take place. At the very least it takes the employee closer to the stage at which there may be a hearing to discuss dismissal as a possible outcome.

554.4 In summary, it is clear that issuing warnings is unfavourable treatment and that it happened because of something arising inconsequence of the Claimants disability namely in the first case the three periods of absence that had occurred by September 2020 and in the second case those periods of absence plus the portion of the period of absence that had commenced on 28 April 2021 and was ongoing as of August 2021. 22.2. Moving the Claimant to the final stage (3) of the capability process (around late November / early December 2021; notified to the Claimant around 6 December 2021)

[555]In relation to paragraph 22.2 the same comments can be repeated as for 22.1 127 of 140

[556]It was unfavourable treatment and it was because of something arising in consequence of her disability namely the disability related absences up to that point including the portion of the final absence that commenced in April 2021

[557]It is important to note that the Claimant was notified that that was Respondent’s intention to arrange to a Stage 3 hearing. However, she had not yet actually been formally invited to the hearing on a specified date. Further, the Respondent was in the process of obtaining an OH report (on the assumption that the Claimant would attend the appointment) prior to the hearing. 23. Was any of this treatment (to the extent that it did occur) a proportionate means of seeking to achieve a legitimate aim, namely the normal and professional management of unacceptable absence so as to minimise disruption to the FCR and staff in general

[558]The Respondents did have the aim mentioned in paragraph 23 of the list of issues.

[559]The reason that the Respondent had its capability policy and related procedures was because of that legitimate aim, and as a means of seeking to achieve that aim. Even taking account of section 136 EQA, we are satisfied that each of Dan Carver and Hannah Regan made their respective decisions (as per section 22 of list of issues) in accordance with the requirements of the Respondent’s policy and procedures.

[560]We have heard from Mr Carver and we believe his evidence fully, including what he says about seeking advice from human resources and from occupational health and about his efforts to seek to follow that advice.

[561]Mr Carver did not lightly take the decision to issue the formal warning. We have taken account of the full wording of the capability policy and of the attendance management policy and procedure. We are aware, and have taken account of, the fact that the latter document was disclosed extremely late by the Respondent. We accept, however, that - as Mr Carver said in his evidence - even though the latter item was not initially in the bundle and was disclosed extremely late - it was a document that Mr Carver took into account in his dealings with the Claimant. That, of course, is a reason that the document ought to have been disclosed properly and promptly by the Respondent’s representatives. However, the late disclosure is not a matter which adversely affects the credibility of Mr Carver.

[562]We have taken account of the written wording of the policy. There is also a helpful table at appendix 1 on page 13 and a flow diagram at page 14 to 15.

[563]The long term absence procedure is addressed by flow diagram at page 16. We are satisfied that, by the time of the Claimant's resignation in January 2022, matters had not yet reached the stage at which it would have been appropriate to start dealing with the Claimant under the long term absence part of the policy 128 of 140563.1 Paragraph 4.9.1 on page 8 of the policy bundle explains when the Respondent should start using that part of the capability policy.

563.2 The onus would not - of course - be on the Claimant to inform the employer that she thought that it should move to that particular part of the policy instead. The onus would be on the Respondent to decide which part of the policy it was obliged to follow in it decisions about the Claimant. That being said, during the Claimant's absence, the Claimant’s opinion and the opinion of occupational health was that there was a possibility of the Claimant’s returning to work. The GP fit notes did not state or imply that she was unfit indefinitely.

563.3 From the Claimant's point of view, the only way in which she could return would be if all of the restrictions on her were removed other than those which applied to people who were wearing masks as well. (According to what she suggested at the time, that was potentially a necessary requirement, though would not have been a sufficient one; there were other matters affecting her health and making her unfit for work.)

563.4 So one way of the Claimant being able to return to work would be for the Respondent to agree with that position.

563.5 Another way for the Claimant to potentially return would be if the mask requirement for other employees came to an end for any reason whatsoever (whether as a reasonable adjustment for the Claimant as she has suggested, or just because the Respondents decided it was no longer required).

563.6 However, regardless of what might have needed to happen before the Claimant could actually return to work, it was not unreasonable for the Respondent, as of November 2021 to January 2022, to be working on the basis that following sections 4.3 to 4.7 of Capability Process was still appropriate, rather than moving to the decision-making which was applicable when “the individual is unlikely to be able to return to the workplace within a 6 month period or there is unlikely to be sufficient recovery from the illness to enable a return to work in the foreseeable future”.

[564]In terms of the warning which Mr Carver issued in September 2020 that predated any mask wearing requirement or any absence that was allegedly because of the restrictions imposed upon the Claimant.

[565]He issued the warning having previously taken informal action in relation to the Claimant and having previously gone as far as a stage one meeting at which he decided to take no further action

[566]There is a distinction between 129 of 140566.1 On the one hand, a dismissal on the alleged basis that the employee cannot perform the role that they were employed to do at all and will not be able to do it within a future period that the employer considers reasonable

566.2 On the other hand, a different situation where the employee can to some extent, and at least some of the time, perform the role for which they are employed but there is a dismissal because – according to the employer - the periods in which they can carry out that role are punctuated by such intermittent periods of absence that the employer’s decision is that they cannot perform the full role satisfactorily.

[567]In this case, we are addressing proportionality, rather than unfair dismissal considerations. However, before dismissing an employee in either of the scenarios just mentioned, a reasonable employer is required to consider alternatives to dismissal.567.1 One of the alternatives might be a move to other duties.

567.2 Another alternative, at any stage at which a decision to potentially dismiss might be made, is to wait and see what happens in the future. The employee’s health might improve and they might return to work at some future date. Or, if given a further chance to improve attendance, a further review period might mean that the number of absences and/or durations of absences and/or frequencies of absence will decrease.

[568]A reasonable employer would be expected not to act too quickly to dismiss. Unfair dismissal considerations about what amounts to “too quickly” depend on all the circumstances including the size of the employer, the nature of the employee’s role, how easy or difficult and how expensive it is to arrange a replacement

[569]All of those factors are potentially relevant as well to the balancing exercise to be carried out in the case before us. However, since the discriminatory effect of giving a first warning at stage 1 or, as the case may be, of giving a final warning at stage 2 is less than the discriminatory effect of a dismissal then that is relevant to the balancing exercise.

[570]There would have been both pros and cons to putting the Claimant on the long term absence procedure (section 4.9 of the capability policy)) instead of moving (potentially) to Stage 3 (section 4.7 of the capability policy). However it would have been entirely inappropriate to move her to the long term absence procedure in September 2020. The Claimant was attending work then.

[571]We do not agree with the Claimant’s argument that there could be no legitimate aim - for which issuing the stage 1 warning was appropriate – unless the Respondent could show that the outcome would be to improve the Claimant’s attendance. Put another way, if the Claimant’s attendance record was a matter 130 of 140 entirely outside her control (because it was connected to her health, and specifically to her disability), it does not follow that issuing the Stage 1 warning could not be a pursuit of a legitimate aim, or proportionate.

[572]The pleaded legitimate aim is “the normal and professional management of unacceptable absence so as to minimise disruption to the FCR and staff in general”. A measure might be taken to reduce the overall level of absence which does not actually reduce the level of absence of every individual. For example, dismissing an employee and replacing them with an employee who has less absence will potentially reduce absences amongst the Respondent’s staff, but would not improve the attendance of the employee who has been dismissed.

[573]We accept the Claimant’s argument that a particular employee’s attendance could only improve because of a warning if there was some future occasions after the warning on which they decided that it was better to come into work rather than have a further absence. We accept that, in cases of genuine sickness absence (and the Respondent has not alleged that the Claimant’s absence was for anything other than genuine reasons), the employee might have no choice in the matter; they might simply be too ill to work, and incapable of improving their attendance record, even after a warning.

[574]However, the Respondent has a policy which says that stages of the capability process will not be skipped. It is not true to say that if an employee’s attendance cannot improve (because of disability or reasons connected to disability) then they cannot be dismissed. They potentially can be dismissed without that dismissal contravening the Equality Act 2010. In the Respondent’s case, a dismissal because of poor attendance (section 4.7 of the procedure) cannot take place unless Stages 1 and 2 of the capability procedure have first been followed.

[575]As we said above, it is unfavourable treatment to move through the various stages precisely it moves the employee closer to the stage where dismissal might be considered. However, from the employer’s point of view, moving the employee closer to the stage at which a dismissal can be consider is potentially a legitimate matter to take into account when deciding whether to move to the next stage.

[576]Within the Respondent’s policies, dismissal is not inevitable at Stage 3 and at the stage 3 hearing various options can be considered including alternative duties, or deferring a decision. The alternatives are noted throughout the capability policy but included at page 15 of the policy bundle, where an option from a stage 3 formal meeting is to continue support, as well as extending current warnings or considering alternative employment

[577]As of September 2020, the balancing exercise was that the discriminatory effect on the Claimant of receiving the first written warning was outweighed by the benefit to the Respondent of seeking to pursue the legitimate aim stated in paragraph 22 131 of 140 of list of issues. Other measures had been followed already and the procedure itself envisaged that steps to potentially assist the Claimant - including occupational health referrals and discussions of alternative duties - would potentially follow if her absence levels did not improve.

[578]Even though the warning itself would not necessarily improve her future attendance, it was proportionate - given the level of absence by that date - to decide that future absences would be dealt with more formally and lack of improvement would potentially lead to a move to stage 2. Prior to moving to Stage 1, the Respondent had made significant efforts to deal with the Claimant’s absences informally.

[579]As of the 18 August 2021 decision, the Claimant had been absence for more than three months continuously and this was in addition to the previous absences.

[580]It was proportionate to give the Claimant the stage 2 final warning. Again this would not necessarily in itself mean that the Claimant would return to work promptly and it would not necessarily mean her future absence levels would reduce. However, it put the Claimant on notice that potentially she would be dismissed if those things did not occur and let her know that, if her absence levels could not otherwise be improved, then it might be appropriate to consider things such as alternative duties.

[581]By late November and early December 2021, our assessment is that the Respondent knew or ought to have known that there would potentially become a future time at which its mask wearing requirement would cease. We take judicial notice of the fact that many government restrictions had ceased around August 2021 (and that some had been reintroduced around December 2021).

[582]Weighing the discriminatory effect on the Claimant of informing her of the fact that the proposal was that a Stage 3 hearing would be convened (within the foreseeable, but not the imminent, future) against the importance to the Respondent of the legitimate aim, our assessment is that it would have been disproportionate for the Respondent to have had to simply put all steps for dealing with the Claimant’s absence on hold until after the end of the pandemic, or until after the mask-wearing policy had changed. In our judgment, just because it was likely that - at some point in the future – it was the mask wearing requirement would cease, it does not follow that the Respondent was obliged to do nothing in relation to the Claimant's absence in the meantime

[583]The Respondent - through Dan Carver and Hannah Regan - had made contact with the Claimant during her absence for welfare checks, and had made referrals to occupational health and so on.

[584]In addition Ken Townsend had written to the Claimant on 17 September 2021 with various suggestions. 132 of 140

[585]We discussed above why special unpaid leave or special paid leave were not required in accordance with the duty to reasonable adjustments.

[586]More generally, in this case we have not made any finding that there was a failure by the employer to make reasonable adjustments. We have not found that the absence was caused by, or contributed to by, any failure to make reasonable adjustments.

[587]Rather, as discussed above, we found that the Respondent imposed restrictions on the Claimant which amounted to unfavourable treatment but that those restrictions were lawfully justified because the defence in section 15 succeeded.

[588]The specific treatment referred to in paragraph 22.2 of list of issues is connected to the information given to the Claimant that she had not successfully met the criteria set out for Stage 2 and that the Respondent would be moving to Stage 3. The Claimant had not been at work at all in the 3 months since the Stage 2 warning. Against that background, informing the Claimant that the Respondent was going to move to stage 3 was proportionate. The Respondent was giving her that information in advance of the formal letter inviting her to the hearing; doing so gave her the opportunity to liaise with her union representative to think about what medical evidence she might require, to think about whether she was going to suggest moving to long term absence or ill health retirement and so on as well as to reflect back on the things that she'd previously been offered including in Mr Townsend’s 17 September 2021 letter.

[589]The discriminatory effect on the Claimant is that she would be distressed and alarmed by the news that there would potentially be a hearing at which dismissal would be considered. However taking account of all the safeguards that the process had built in including that dismissal was by no means inevitable and also that even if there was a decision to dismiss there was the option to appeal, simply informing the Claimant of the decision after all the prior communication that had taken place was proportionate Harassment s26 EQA 24. Was the Claimant subjected to unwanted conduct that had the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her when : 24.1. When on the 17th January 2022 she was wrongly accused of refusing management instructions to attend Occupational Health. If so, was that conduct related to disability. In deciding whether conduct has the effect mentioned, the Tribunal will need to consider the factors mentioned in section 26(4) EQA. 133 of 140

[590]To some extent, this simply fails on the facts, because the letter states – accurately – that the Claimant did not attend the 25 November 2021 appointment. It does not state that that failure to attend was a refusal to comply with management instructions.

[591]The letter talks about the need to attend appointments. It talks about the potential consequences of failing to attend appointments and, in context, is plainly referring to what might happen in the future of the Claimant were to choose, after 17 January 2022, not to attend appointments.

[592]We are satisfied from the correspondence as a whole (including what Ms Regan sent directly to the Claimant, and what she and Ms Hill wrote to each other) and from what is stated in the letter, that Ms Regan’s purpose was to attempt to maximise the chances of the Claimant attending the OH appointment and to ensure that there could be no doubt that the potential consequences of nonattendance had been explained.

[593]It was not Ms Regan’s intention to inform the Claimant that the Claimant had committed any misconduct or failure to comply with management instructions. If that had been her intention, then the letter would have said that.

[594]The letter was related to the Claimant’s disability in the sense that it was related to her absence and that absence was caused by disability.

[595]The Claimant’s position is that the letter was unwanted conduct. We accept that it was unwanted conduct from the Claimant’s point of view. According to her witness statement, she did not necessarily want the appointment to be as soon as 1 February 2021 because it was her perception (and she was correct, in our opinion) that the sooner the appointment took place, the sooner the Stage 3 hearing might be arranged. However, leaving aside the date, it was the Claimant’s perception that any implied criticism of her failure to attend the 25 November 2021 appointment was unjustified, because(a) it had been an honest mistake on her part and

(b) she had informed the Respondent of that, and apologised for it.

[596]It is not reasonable for the letter to be treated as having the effect(a) violating Claimant's dignity or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. It is a fact that the Claimant had missed the appointment and a fact that she had not always responded promptly to attempts to contact her. It is a fact that, as accurately mentioned in the letter, upto-date OH advice is potentially beneficial to both employee and employer when an employee has been absent for several months and/or might require adjustments. The words in section 26 must not be cheapened. Even though the Claimant might have preferred the letter to have been worded differently, or not sent at all, it is not reasonable for an employee who misses an OH appointment to 134 of 140 expect that nothing will be sent to them in writing reminding them of the requirement to attend such appointments.

[597]The harassment allegation fails. Constructive Dismissal25. Did the Respondent fundamentally breach the implied term of trust and confidence allowing the Claimant to resign and treat herself as dismissed when: 25.1. In September 2020 she was given a first written warning 25.2. In or around November 2020 it informed the Claimant that colleagues had complained about her not wearing a face mask 25.3. On 23 November 2020 a FCR supervisor asked why she was not wearing a mask despite the Claimant wearing a ‘disability’ lanyard. 25.4. On 2 November 2020 she was told that because of colleague complaints about her not wearing a face mask she was being restricted to a designated seat and only permitted to use the front entrance/exit to the building and asked to use the downstairs kitchen. 25.5. In early 2021 she was asked to access supervisory support via TEAMS rather than face to face contact. 25.6. In February 2021 her appeal against the first written warning was not upheld. 25.7. On an unknown date he was informed that the ’Appreciation Board’ in the upstairs kitchen which she had been asked not to use, contained some ‘Appreciations’ of her by colleagues. She was not able to access these. 25.8. When on 15 June 2021 management refused to amend case conference notes relating to the Claimant and which place her in a negative light. 25.9. From April to December 2021, she was given misleading information concerning the nature of the Covid related restrictions 25.10. When she was subjected to a stage 3 capability process prior to completing actions specified by Occupational Health 25.11. When in August 2021 she was given a final written warning relating to her absence and in November 2021 when that appeal was not upheld. 25.12. When in October 2021 her Fairness at Work (Grievance) was unsuccessful. 135 of 140 25.13. When in October 2021 she declined to appeal against the FAW outcome on grounds that the manager dealing with the appeal was the disability lead. 25.14. On 6 December 2021 the Claimant was told that she would be progressed to Stage 3 of the Capability process prior to the mediation recommended by the FAW report being actioned. 25.15. When on the 17th January 2022 she was wrongly accused of refusing management instructions to attend Occupational Health 25.16. Failing to arrange mediation 25.17. When after she was unable to attend the mediation on the 30th December 2021, the Respondent failed to re-arrange a meeting

26. For each allegation, the Tribunal will need to make findings of fact about what occurred

27. For the conduct which actually did occur, did it breach the implied term of trust and confidence? The Tribunal will need to decide: 27.1. whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and 27.2. whether it had reasonable and proper cause for doing so.

28. Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation..

[598]We have to decide what caused the Claimant to resign.

[599]Her witness statement mentions three main things:599.1 the outcome of the FAW, which she had had in draft for some time, and the final version of which was received on 17 November 2021 and against which she had not appealed

599.2 the 17 January 2022 letter from Hannah Reagan

599.3 the allegation about not offering mediation

[600]None of these three things - either taken together or individually or in any combination - are conduct which was calculated or likely to destroy the relationship of trust and confidence between the Claimant and the Respondent. 136 of 140

[601]In terms of the FAW report itself, the Claimant is entitled to disagree with the outcome. However, it did do several of the things that the Claimant had said that she wanted it to do. In particular, it gave her detailed explanations of why – according to managers - the restrictions had been placed on her. The Claimant does not agree that the restrictions were necessary; in particular, the Claimant believes that since there is no risk assessment or scientific evidence to back them up they are not necessary. However, while the Claimant is entitled to hold the opinion that the Respondent’s reasons were flawed, it is inaccurate – in our assessment to assert that the Respondent failed to provide any explanation to her.

[602]In terms of Ms Regan’s letter, we discussed this when rejecting the harassment complaint. The letter is factually accurate. The Respondent’s policies do refer to the potential consequences of missing OH appointments. The letter did not state that the Claimant would be disciplined. From the Claimant's point of view, the letter should have specifically said something to the effect there was no blame to be attached to the Claimant for the fact that she had not attended the previous appointment. The Claimant is entitled to her opinion but since Hannah Regan was not inviting the Claimant to any kind of formal meeting at which she might be disciplined for missing that appointment, we do not think it was reasonably necessary for any such sentiment to be expressed in the letter.

[603]In relation to a mediation, as we have said above, the Claimant was offered a particular date for a meeting with Mr Townsend. She did not respond promptly. The Claimant may well have had good reasons for not responding promptly (including dental issues) but several days after she had been offered the meeting, and only after she been chased for a reply, she responded to say that that particular date was not convenient to her and she would be in touch. She then did not get in touch to agree to meet Mr Townsend or to suggest new dates.

[604]While we have not necessarily been given all of the without prejudice communications between the parties, based on the documents which have been provided to us, the Respondent decided it was going to make no settlement offer to the Claimant. A decision not to make a without prejudice offer to the Claimant – and we do not know if the Claimant was seeking a severance package or not - is not the type of conduct that is calculated to destroy trust and confidence.

[605]No last straw argument was expressly put forward but we have considered it in any event.

[606]The final one of the 3 things the Claimant relies on, the end of ACAS early conciliation without an offer having been made, is innocuous. In broader terms, it is not factually accurate that the Respondent refused mediation, or failed to offer it to the Claimant. Our assessment is that the Claimant resigned in response to the fact that early conciliation certificate was issued with no offer having been made by the Respondent. 137 of 140606.1 The Claimant had not affirmed the contract since that act.

606.2 The act (or omission) was not, by itself a repudiatory breach of contract

606.3 It was not (applying the approach explained in Omilaju) part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term?

[607]The earliest of the three things, is Mr Patient’s FAW outcome. That was two months before the resignation. Our assessment is that the Claimant did not resign in response to the FAW outcome. She did not agree with the conclusions, but she first decided not to appeal and then later (around 6 December) told Ms Regan that she was thinking about an appeal. While it is true that the Claimant wanted the Respondent to change its position in relation to the restrictions, on the facts, we are not persuaded that Mr Patient’s decisions, comments or recommendations caused her to resign. On the contrary, one of her arguments in this litigation is that she did want the recommendation of mediation to be complied with by the Respondent.

[608]Ms Regan’s letter was not a breach of contract. The Claimant had not affirmed the contract between 17 January 2022, and the date of the resignation. Ms Regan’s letter was not part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term

[609]For many of the alleged acts/omissions, we have commented already in assessing the Equality Act complaints. The test for breach of the Equality Act is different to the test for breach of the term requiring trust and confidence; however, in these particular circumstances, we think that our explanations are already adequate to explain why that term has not been breached.

[610]In terms of 25.1, 25.6, 25.11 and 25.14, it was not a breach of contract to fail to uphold the appeals or to move to the next stage in the process. There were not acts calculated or likely to destroy trust and confidence, but were acts which showed that the Respondent was willing to abide by its policies.

[611]For the avoidance of doubt, it is our judgment that the earlier conduct listed at paragraph 25.2 to 25.5 of list of issues does not amount to a breach of trust and confidence even if taken together and even if we ignore any issues about whether the contract has been affirmed since any of it occurred

[612]In relation to 25.2 and 25.4 of the list of issues the Claimant was told about the restrictions and she was told that colleagues had raised concerns about her. Apart from being more than six months before her absence started and more than a year before she resigned she was given factually accurate information. 138 of 140

[613]In terms of 25.3 , we accept Ms Wallace’s evidence of what happened. Ms Wallace asked the Claimant a question and once the disability lanyard was shown, that was the end of the matter.

[614]In terms of 25.5, the Claimant was given the same information given to other people, and the Respondent was seeking to manage health and safety risks for all employees, including the Claimant. It was a reasonable management instruction.

[615]In terms of 25.7, there was no attempt by the Respondent to prevent the Claimant knowing about the contents of the Board. The Claimant did, in fact, come to learn about the contents.

[616]In terms of 25.8, after 15 June 2021, the Claimant had numerous discussions with the Mr Carver and Ms Regan, as well as her FAW with Mr Patient. She had every opportunity to(a) know what the Respondent believed she had said on 15 June 2021 and

(b) state that – from her point of view – what she had actually said, and what she actually thought.

[617]We do not agree that paragraph 25.9 is factually accurate. In any event, Mr Townsend’s 17 September 2021 email and Mr Patient’s FAW outcome made the situation clear even if the Claimant had misinterpreted or misunderstood any of the previous information.

[618]Paragraph 25.10 is not accurate. She was told that the Respondent intended to conduct a Stage 3 hearing, but the date had not been fixed and the date for the next OH appointment had not been fixed. The Claimant’s managers had contacted the Claimant about seeking to agree reasonable adjustments and to discuss possible alternative duties. Mr Carver has conducted – and updated – risk assessments by phone.

[619]Paragraph 25.12 was not unreasonable conduct by the Respondent or Mr Patient. There was a careful investigation, and detailed outcome. The Claimant had the opportunity to discuss the draft version before the final version was issued. Mr Patient supplied his honest opinions, and explained how he had reached his conclusions.

[620]Paragraph 25.13 does not allege something which the Respondent did.

[621]We do not agree with the Claimant’s characterisation (in paragraph 25.15 of list of issues) of the 17 January 2022 letter, as explained when rejecting the harassment complaint. As with any letter, it could have been worded differently. But the tone and content were not unreasonable.

[622]Paragraph 25.16 is not accurate. Although the Respondent did not arrange for external mediation, it did offer a meeting with Mr Townsend. 139 of 140

[623]In terms of paragraph 25.17, as explained above, the Claimant rejected the specific meeting date and told the Respondent that she would be in touch (without confirming if the proposed meeting arrangements, other than the date were acceptable, but implying that she wanted different arrangements, via ACAS). She then did not get in touch. There was no unreasonable conduct by the Respondent.

[624]For these reasons, our decision is the Claimant was not (constructively) dismissed.

Conclusion

[625]Thus, as set out in the judgment, all the claims failed. Approved by: