Ms M Aboagye-Berchie v Royal Mail Group Ltd: 3305037/2024 and 3305404/2024
EMPLOYMENT TRIBUNALS
Case No 3305037/2024, 3305404/2024
Between
Ms M Aboagye-BerchieClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge J Lewis KCMr Hamza Ahmed (instructed by Counsel) for respondentDate 13 July 2026
JUDGMENT
[1]The claim of unfair dismissal succeeds, and it is declared that the Claimant was unfairly dismissed. The remedy for unfair dismissal is to be determined at the Remedy hearing (which has been listed for 27 October 2026).[2]The claims of discrimination and harassment, in relation to age and sex, fail and are dismissed.
REASONS
[1]This was the hearing of the Claimant’s claim for unfair dismissal, direct sex and age discrimination and harassment related to sex and age. We heard evidence from the Claimant and from her former union representative (Roger Bogle) and former colleague, Emmanuel Ameyaw, and for the Respondent from Robert Blackman (Customer Operations Manager), Russell Kirton (Customer Operations Manager) and Ms Sawinder Kaur Singh (Deputy Manager). In addition to the oral submissions we received and considered written closing submissions from each party. A. PRELIMINARY ISSUES, AND CLARIFICATION OF THE ISSUES[2]The issues in the case had been discussed and clarified at a case management preliminary hearing on 15 May 2025. The parties agreed at the outset that the claims and issues are as set out in the Case Summary from that hearing save for two points.[3]First, Mr Asiedu-Berchie explained that the first of the grounds relied upon in relation to each of the heads of discrimination and harassment required some revision. Paragraphs 4.2.1, 5.2.1, 6.1.1 and 7.1.1 should each be replaced with the following allegation of less favourable or harassing treatment: As of 28 July 2023, the Claimant’s Sunday (9 hour) shift was removed from her, reducing her total weekly hours from 16 hours to just the 7 hours of her Saturday shift. The reason given was the Claimant’s inability to drive. The hours of her Sunday shift were then covered by Saira Smith as overtime. Ms Walmsley (who is not a driver) had also previously worked that shift.[4]On behalf the Respondent, Mr Ahmed confirmed that there was no objection to this revision.[5]The second correction related to comparators. On behalf of the Claimant it was clarified that she does not rely on Tony Street, Kevin Chance or Gary Lewis as comparators. It was explained that the Claimant had misheard or misunderstood what had been asked about this at the preliminary hearing and had instead mentioned their names as other office workers who were younger than her, but had not intended to put them forward as comparators (though there was no explanation as to why, despite this being required by the Order, corrections to this has not then been raised with the tribunal). The Claimant therefore relied on a hypothetical comparator in relation to each of her sex and age discrimination claims, and put forward Kathy Simpson as a comparator in relation to each head of age discrimination. The Claimant stated that Ms Simpson also works in the office, is in her 40s and is a nondriver and was often later for or not available for work.[6]Mr Asiedu-Berchie also raised corrections or additions to the draft chronology which were uncontroversial.[7]Following the break for pre-reading of the first morning, and having in mind that the Claimant is a litigant in person, we specifically raised that her statement contained an allegation which set out in the Claim Forms or part of the issues that had been identified and agreed, that the events on which she relied were said to have begun when she raised “concerns regarding systematic favouritism, discriminatory conduct and hostile treatment of colleagues”. An example was given in the statement, but without providing a time frame as to when the example occurred, and relating to concerns said to have been raised with managers who are not witnesses in the case and indeed no longer employed by the Respondent. An application was made to amend to add this to the claim and the issues. Mr Asiedu-Berchie, stated this was said to be a head of age discrimination, on the basis that older employees who had longer service would have knowledge of the matters subject to the concerns and be the ones who would raise them. The amendment was opposed, principally on the basis of raising substantial new factual matters very late in the date, with no chance for the Respondent to have considered it or identify and consider witnesses to address it. For reasons given orally the amendment was refused.[8]A further minor correction to the list of issues was agreed on the morning of the second day in the light of the Claimant’s evidence. The reference in paragraph 2.2.3 to a call on 4 March 2024 was to a call on 7 March 2024.[9]It was also subsequently clarified that:9.1 In relation to unfair dismissal, the Claimant’s contention as to the reason for dismissal, if dismissal was established, was that the Claimant was abroad during her absence from the business and the Respondent genuinely believed that the Claimant held no intention of returning to work in some capacity in the near future.9.2 In relation to the allegations of discrimination and harassment:(a) The complaint relating to informing the Claimant on 22 July 2023 that her Sunday role was no longer available encompassed i. calling her to a meeting without any forewarning of its purpose; ii. presenting the Claimant with the removal of her role without any or any further consultation (subject to discussion on a subsequent Saturday of a weekday role); and iii. doing so without any further process or documentation relating to termination of the role or further consideration of alternative work.(b) The complaint in relation the communications from 21 February 2024, encompassed the matters relied upon in relation to 2024 in respect of constructive dismissal at paragraphs 2.2.2 to 2.2.6.[10]An updated list of issues was provided to the parties on the third day of the hearing when the case went part heard, and was attached to a case management order.[11]Mr Asiedu-Berchie also noted that the bundle was not agreed and had been served late. The bundle had only been compiled in the last two weeks and had only been sent in electronic form on the previous Friday and a hard copy provided by special delivery on the Saturday. Mr Ahmed was unable to offer a good explanation for this other than that it was an oversight. It followed on from the Respondent having served its witness statements late (in March), for which the only explanation offered was pressure of work. Neither of these failings were acceptable.[12]So far as concerned the bundle, the Claimant was content to proceed on the basis of the bundle that had been provided. On enquiry, although it was said that the bundle was not agreed, it was confirmed that it was not said that any other documents should be added. So far as the witness statements are concerned, the Respondent had sought an extension of time and it was confirmed that they had not looked at the Claimant’s statement before exchange. We were satisfied that, given the gap between provision of statements and the hearing, there was no prejudice to the Claimant.[13]A witness summons had been sent to two witnesses for the Claimant (Mr Bogle and Mr Ameyaw). Neither attended on the first day. We were told by Mr Asiedu-Berchu that both had expressed concerns as to consequences of attending, still being Royal Mail employees, though one (Mr Ameyaw) had provided a written statement. Having discussed the timetable for evidence with the parties, we indicated a specific timeslot when the witnesses would give evidence. Mr Bogle then Mr Ameyaw attended on the second day and, by agreement with the parties, were interposed at the start of the day, prior to completion of the Claimant’s evidence.[14]As the Claimant was in person, at our request the Respondent’s Counsel provided the Claimant in advance of the second day of the hearing with a note of the legal argument which he proposed to present and a copy of the legal authorities on which he proposed to reply. B. FINDINGS AS TO MATERIAL FACTS[15]We set out below our findings on salient facts relevant to the issues. Our findings are made on the balance of probabilities. The matters set out below are not intended to rehearse all the evidence, and where we do not refer to specific aspects of the evidence it does not follow that we have not taken it into account.[16]In making our findings we have kept in mind that the events in question took place a considerable time ago; principally in July 2023 and early 2024. Differences in recollection are to be seen in the context of witnesses endeavouring to recall events from a considerable time ago, in most cases (particularly in relation to July 2023) without contemporaneous documentation to assist that recollection.[17]In closing submissions Mr Asiedu-Berchie suggested that the Respondent’s witnesses had shown “collective amnesia” and were selective as to what they could recall. We reject that contention. There were genuine difficulties faced by all witnesses, including the Claimant, in recollecting events and the details of conversations and meetings long ago without the benefit of contemporaneous notes. We also reject the contention that witnesses called by the Claimant were fearful as to what they could say. Both those witnesses denied that suggestion and we do not consider that there was anything in their evidence to support the contention.[18]The Claimant was employed by the Respondent from 18 February 1981 until the termination of her employment with effect from 25 March 2024. Her employment was as an Operational Postal Grade (Postwoman).[19]For around the last ten years of her employment, since 2013, the Claimant’s role was office based. The move to office work was made at the Claimant’s request to alleviate stress on her knees and feet. The issues with her knees was such that she could not drive the Respondent’s vans which were all manual gearbox vehicles.[20]In around 2022 the Claimant retired, but she accepted an offer from her then line manager, Will Wall, to carry on, working 16 hours a week. This consisted of two shifts at the Tottenham delivery office. There was a seven hour Saturday shift at the “RLW” dealing with special deliveries, and a nine hour Sunday shift at the Callers Office.[21]It was the Claimant’s evidence that she had a written contract upon her returning to work for a 16 hour week. An Order was made when the case when part heard for the contract to be provided. The Claimant was not able to do so and the Respondent indicated that it could not be produced from storage in time. It was agreed by the parties however that it was appropriate for the tribunal to proceed on the basis that there was a contract providing for a 16 hour week.[22]There were two regular indoor members of staff at Tottenham who worked weekdays; one (Tony) who worked on weekdays five days a week and one (Gilda) who worked 35 hours across the week, including Saturday. Tony was in his sixties but had not taken retirement. Gilda was in her fifties. The Claimant covered Tony’s five hour shift on Saturdays, and the balance of her time on the Saturday shift involved assisting Gilda. Mr Kirton’s appointment as manager of the Tottenham office[23]In around February or March 2023, Mr Russell Kirton (Customer Operations Manager) became the manager of the Tottenham Delivery Office. At the time Mr Kirton started as manager, the Claimant was approaching the end of a five month period of absence for personal reasons. She returned to work on 11 March 2023. Mr Kirton worked Monday to Saturday. As such they overlapped for only one day a week in the office, on Saturdays.[24]There were around 55 staff based at the site, with around 35 on average at work. Mr Kirton was only provided with limited specific handover information about staff. He was made aware of the gist of key information, such as whether there were amended duties or long term absences. Whilst there would also be further information in personnel records, he did not go through these. He did not know that the Claimant was post-retirement. Closure of the Callers’ Office and Reassignment to the Sunday sorting session[25]In 2023 the Tottenham Delivery Office undertook an office revision due to a decline in indoor work across the business. In part this was the result of a national change in delivery processes, whereby if a first attempt to deliver was not successful a second attempt was made later, with the result that less parcels were returned to the delivery offices. There had been an announcement in February 2023 that in the light of a reduction in footfall there was to be a review to ensure that opening times matched demand. In relation to the Tottenham Delivery Office, the outcome of that review involved the Callers Office no longer being open on Sundays (with the last day of opening being 9 July 2023), as well as having reduced opening hours during the week (limited to 8 to 10 and 4 to 6, and only two deliveries on those days). The Claimant therefore could not continue her Sunday shift at the Callers Office.[26]The change in opening hours was communicated to Mr Kirton by higher management, rather than being decided upon locally.[27]In the light of the closure of the Callers Office the Claimant was assigned to the Sunday sorting shift. This was the only other work on Sunday at the Tottenham Delivery Office with an indoor element.[28]The Sunday sorting shift was a parcel delivery service but included a preparation element for the work. This involved sector sorting the parcels in yorks for each of five offices to which they were to be delivered, then sorting the N17 office deliveries according to postcodes for drivers to collect and load into their vans and deliver, and sorting the van keys for the drivers. This would be done for an initial wave of deliveries. Then further parcels would come in at about 11am or midday which would need to be sorted to go out in a second wave of deliveries.[29]The Claimant carried out the shift on two occasions, on 16 and 23 July 2023. In addition to the sorting work, she also carried out scanning of items which could not be delivered as they were to be delivered to firms, which would be closed on a Sunday. She was asked by Mr Kirton to do this after the drivers had gone out, with a view to this filling the up the nine hours of work. Merely carrying out the sorting would not have been sufficient, being only enough for three to five hours work. Shift on 16 July 2023[30]Ms Sawinder (“Sam”) Singh was the manager on duty on 16 and 23 July 2023. She had been a post lady until October 2022, when she became a manager. In 2023 and 2024 she had worked most Sundays on the Sunday sorting shift, whether at Tottenham or elsewhere. The shift worked in a similar way in each of the four hubs in London where it operated.[31]Ms Singh had not met the Claimant before the shift on 16 July 2023, and was not aware that the Claimant was unable to drive prior to a conversation with the Claimant on that day. Ms Singh and the Claimant had a difference of recollection as to the context of that conversation. The Claimant’s recollection was that during the shift Mr Singh asked or told the Claimant to move a vehicle. (The allegation identified in the list of issues was that she had asked the Claimant to move the vehicle, whereas in her witness statement she said it was a demand, and in oral evidence maintained it was an instruction. We do not consider that anything turns on this distinction). In response the Claimant explained to Ms Singh that she was unable to drive because of her foot injury. Ms Singh replied that that driving was part of the Sunday duty.[32]Ms Singh’s recollection was that she had noticed the Claimant spending much of her time in the Callers Office booking in parcels. She had explained to the Claimant that this did not really meet the needs of the Sunday operation. Her recollection is that it was in that context, in taking the Claimant through the nature of the Sunday duty, that she referred to the fact that it involved a driving element since once the last parcels had been sorted for the last wave of deliveries, the person doing so would then themselves take out a delivery by van. It was also Ms Singh’s view that, with the reduction of indoor work, there would not be sufficient for the weekday staff if the work was done on Sundays.[33]We accept in part that Ms Singh’s recollection of events is likely to be correct. Ms Singh’s account of the work involved in the Sunday sorting shift did not involve the scanning work. She had not been informed that the Claimant would be doing that work. We accept that it is likely therefore that she picked up on the Claimant spending much of her time doing this and raised it with the Claimant. Nothing turns on whether she is correct in her recollection that this was in the Callers Office, or the nearby office where the Sunday sorting was carried out.[34]We consider that it is more likely that Ms Singh was incorrect in her recollection that the Claimant’s inability to drive was first mentioned in the context of that conversation. It is more likely that there had been an earlier occasion when, as the Claimant describes, she had been asked to move a vehicle and explained in response that she did not drive. Given the passage of time, it is unsurprising that that event did not stick in Ms Singh’s memory, but that it had greater significance for the Claimant. We do not consider however that much turns on this. We are satisfied that if Ms Singh did ask (or indeed instruct) the Claimant to move a vehicle, this had nothing to do with her age or sex, but related to her expectation that someone placed on the Sunday delivery shift would be able to drive. Nor is it inconsistent with the subsequent conversation when Ms Singh picked up on the scanning work being done, and in that context raised her view that it did meet the needs of the Sunday operation, and that being a parcel delivery service it had a necessary driving element.[35]A further difference between the Claimant and Ms Singh was as to whether there was a need as part of the Sunday shift for the Claimant to open the office and then again to wait for all the drivers to return before closing the office. Ms Singh’s evidence was that it was her role to open and shut the office. We accept that on the days that the Claimant worked on the Sunday shift she was there before and after Ms Singh to open and shut the office. Nothing in our view turns on that. It reflected the hours of her usual nine hour shift. It does not indicate that it was necessary to remain for those hours, or that the manager would not otherwise have dealt with opening and closing. Ms Singh’s report to Mr Kirton relating to the Claimant[36]During the week following 16 July 2026, Ms Singh reported to Mr Kirton the issue that the Claimant had said that she did not drive, and explained that not driving did not align with the Sunday shift structure which she had in place. We accept that this reflected her genuine view. 22 July meeting[37]The Claimant was next on duty on Saturday 22 July 2023. On that morning she was asked to attend a meeting with Mr Kirton in his office. She was not told what the meeting would be about. When she arrived Roger Bogle, a trade union representative, was already there. The meeting lasted only around 10 minutes. Mr Kirton informed the Claimant at the outset, without any prior discussion, that she would need to drive in order to work on the Sunday shift. He explained that she could continue on the shift but only if she undertook driving duties. The Claimant did not however take issue with the claim that it was necessary to drive in order to work on the shift, either at the meeting or subsequently.[38]The upshot of the meeting was that the Claimant would only continue working one day a week, on her Saturday 7 hour shift, on the basis that it had not been possible to identify alternative work. Her final Sunday shift was on 23 July 2023. Mr Kirton’s knowledge as to whether the Claimant could drive[39]Mr Kirton’s oral evidence was that he had not been aware prior to speaking to Ms Singh that the Claimant did not drive. He was aware that she was now carrying out an indoor role, but explained that he was aware that she had driven for the Respondent at some point, having previously been a “Firm’s” Driver. We do not wholly accept that evidence. It was in tension with his written evidence in which he made no mention of this, and referred (at paragraph 17) to having had to find a suitable duty for her given that she was limited to non-driving duties. We accept however that he was not fully aware of how definitive was the position that the Claimant did not or could not drive. That is reflected in his reiteration at the 22 July meeting that if she did driving she would be able to continue on that shift. When Mr Kirton became aware that Claimant could not drive and of the need for driving on the Sunday shift[40]We also do not fully accept Mr Kirton’s oral evidence, not reflected in his written evidence, that prior to speaking to Ms Singh he was aware that driving was essential for the Sunday shift. Given that the Claimant had been engaged in an indoor non-driving role, had he been aware that the driving duties were essential for the Sunday sorting shift, there would have been an obvious need to discuss with her whether she could drive. That would be the case even if Mr Kirton was not definitively aware that she could not do so. The fact that historically she had had a driving role provided no basis for assuming that she could change from a wholly indoor role to a driving role, without checking whether she was amenable to doing so or able to do so. Had the issue been discussed, that Claimant would have informed him that she could not drive.[41]Further, Ms Singh’s evidence, which we accept, was that she explained to Mr Kirton that as it was a parcel delivery operation it would not work if the Claimant did not drive. She stated that she was unaware if Mr Kirton would already have been aware of this, and that as it was a Sunday operation he might not have known. Yet if Mr Kirton had already been aware of this, it is to be expected he would have said so when they spoke.[42]It is more likely therefore that either Mr Kirton had not considered the driving element of the Sunday role when re-assigning the Claimant to the Sunday shift, or that it was only after and in the light of the information provided by Ms Singh that Mr Kirton appreciated or understood that the driving element was essential. Prior to speaking to Ms Singh he had hoped that, with the addition of scanning work, the Sunday sorting shift could be an indoor role replacing the 9 hours of work that had been done by her in the Callers Office. However it was Ms Singh who was more attuned to the needs of the Sunday sorting shift, given that she regularly worked as manger on the shift, whereas Mr Kirton did not work on Sundays. It is likely, and we find, that it was only after speaking with Ms Singh, and considering the matter in the light of the concern she had raised with him, that he appreciated that the possible solution of moving the Claimant to the Sunday shift would not work unless she could drive.[43]However, irrespective of when Mr Kirton came to appreciate that a driving element was required, we accept that this was his genuine view, and unrelated to the Claimant’s age or sex.[44]The issue in relation to the Sunday shift was not merely one of whether there was sufficient non driving work to be done on the shift. Had that been the case there would have been the possibility of instead working for fewer hours, rather than losing the Sunday shift altogether. At that stage the Sunday shift was relatively new and still dependent on volunteers working overtime and agency workers who were drivers. The level of work also fluctuated. In practice there could be a lot of unforeseen absences. At least after he had considered the position following his discussion with Ms Singh, Mr Kirton’s view was that the lack of reliability in the driver element for the Sunday shift made it particularly important, in order to be able to fulfil the Respondent’s primary responsibilities in relation to delivery, for those carrying out the role given to the Claimant also to able to make deliveries. That was so even aside from the issue of whether there was sufficient other indoor work. We accept that was a genuine assessment that he was entitled to reach. Nothing turns on whether it was something of which he was aware prior speaking to Ms Singh and further considering the position in the light of that discussion. Indeed the fact that Mr Kirton had asked her to carry out scanning duties tends to reinforce that he had tried to find alternative work to cover the hours, before appreciating that it was not a workable solution.[45]It was suggested in closing submissions by Mr Asiedu-Berchie that Ms Singh did not drive. However, even aside from whether the same considerations apply to a manager’s role, that was not raised in evidence. Ms Singh’s evidence was that during the time that she covered the shift all the individuals working on the shift were drivers. The only challenge put to her in relation to that was in relation to Ms Walmsley, who Ms Singh stated had not managed on a Sunday. Consideration of alternatives to removal of Sunday hours[46]Mr Kirton was also unable to identify any alternative work which the Claimant could do to replace the 9 hours that had previously been worked on Sunday at the Callers Office.[47]Mr Kirton raised with the Claimant the possibility of a role working on midweek evenings in the Callers office from 6pm to 8pm. The Claimant explained to him that she could not work during weekdays due to family commitments. As such the only possibility was weekend work. In the light of the reduction in demand and closure of the Callers Office, and the conclusions reached as to the need to be able to drive on the Sunday session, no such work could be identified.[48]There was some difference of recollection as to when the possibility of midweek working was raised. The Claimant initially did not recall the issue being raised at all, but later stated that it was at some point following the 22 July meeting, probably on the following Saturday. Mr Kirton contended that he had raised this before proposing the assignment to the Sunday sorting shift, and had then raised it again at the 22 July 2023 meeting on the basis that circumstances can change. We regard Mr Kirton’s view as more likely, having regard to the fact that the Claimant did not initially recall the discussion at all.[49]On either basis this indicates consideration being given to, and raised with the Claimant, as to any alternative way of making up the hours lost upon closure of the Callers Office. If it was in advance of the 22 July meeting it indicates that Mr Kirton had already identified by the date of that meeting that there was no viable option which did not involve Sunday working. If it was at or after the meeting it indicates that that he was continuing to explore alternatives but without success. Opportunities to challenge the decision[50]Mr Kirton took it, not only from the absence of objection in the meeting on 22 July, but also from the fact that nothing was raised subsequently despite the presence of Mr Bogle, that the Claimant had accepted the change. We also accept Mr Kirton’s evidence that if practices were put through which were not accepted by the union this would go through a process for dealing with disagreement, and that as such when no objection was raised by the Claimant either during or after the meeting, he took it that it had been accepted.[51]There was the opportunity at the meeting, if the Claimant had wished to do so, to express disagreement with the decision and the reason given for it in relation to the Sunday shift, or failing that to raise the concerns subsequently whether directly or via Mr Bogle. Mr Bogle was based on site and there was the opportunity to approach him with concerns and to apprise him of the fact that she disagreed with the view that driving was required and why she disagreed. Indeed she was in touch with Mr Bogle shortly afterwards to take up an issue in relation to her pay, which was then resolved.[52]The Claimant’s explanation in her oral evidence for not raising the matter with Mr Bogle was that he would have said that there was nothing the Claimant could do and that that was said all the time. We do not accept that as a sufficient explanation. The Claimant was not in a position to know what Mr Bogle’s response would be without explaining the basis for her disagreement with him. The fact that he was at the meeting reflecting the recognition of the relevance of the union’s input. Further it is in tension with the fact that she did think he could do something about it when it came to rectifying her pay.[53]The Claimant’s evidence was that she was unaware that she was entitled to raise a grievance. We reject that as inherently improbable. In addition to the fact of the Claimant’s experience with the Respondent, we accept the evidence of Mr Kirton (which was not challenged) that there were signs up on boards in the office about speaking up and raising concerns. In any event it was available for her to raise concerns through the union representative.[54]However whilst there was the possibility of challenging the decision after it was communicated to the Claimant, she was not offered the opportunity of being consulted on the issue of whether driving was required in advance of being informed of Mr Kirton’s decision on that issue. Given that the outcome of the meeting on 22 July 2023 was a reduction in the Claimant’s hours, and indeed this was a probable outcome, the Claimant should have been given notice of the meeting and what it was to be about. In any event the perceived difficulty with continuing the Sunday shift should have been explained, and her views elicited (with a reasonable opportunity to consider her response), before expressing a decision that she could not continue on the shift. The very fact that Mr Bogle was invited by Mr Kirton to attend the meeting is indicative that Mr Kirton was aware of the potential significance of the points to be discussed Whether there was an ulterior motive for the change[55]It was initially part of the Claimant’s case that it had always been the plan that she would only cover for a week whilst Saira Smith, who had previously carried out the Sunday working, was away for her wedding. The Claimant later contended in her evidence that it was once Ms Smith was back that there was a change of mind. We do not accept either proposition. The Claimant was not able to explain what was to be gained by giving a false explanation that the role was permanent. Nor was it suggested that it was not known that Ms Smith would be returning.[56]The Claimant also suggested that when she had worked in the Callers Office on Sundays she would see Saira go home when the sorting had been done from the second van. We do not accept that this negates the view that it was important that the person working on the shift was a driver. Ms Smith was a driver. That she might not always be required to drive was consistent with Mr Kirton’s explanation as to the importance of cover to ensure certainty of delivery given the lack of reliability of the driver element. It follows that where drivers did all turn up, driving might not in the event be required, but that could not be known with certainty in advance.[57]The Claimant pointed to the fact that other staff would be working overtime and that this was not pensionable, and so there was a saving in cost. We are not persuaded that it can be inferred that this was a factor in the decision. Again there was no obvious benefit in telling the Claimant that she would be covering the shift indefinitely, rather than merely covering a period of Ms Smith’s absence, if it had been the intention to replace her only during her absence. Katherine Walmsley[58]The Claimant also contended that Katherine Walmsley who did not drive, had worked on the Sunday sorting shift. She stated that by the time the Claimant was asked to cover that shift she had stopped doing so. We made an order for production of records in relation to whether Ms Walmsley worked on the shift, related to an agreed time period. The Respondent was unable to locate any such records for that period and noted that she was a cover manager.[59]We accept that Ms Walmsley had not worked on a shift with Ms Singh. Had she done so and had Ms Singh discovered that Ms Walmsley did not drive, she would have raised the same issue. In those circumstances even if Ms Walmsley had worked on the shift at another time under a different manager, that was consistent with that different manager having taken a different view as to the need for those working on the shift to be able to drive.[60]Mr Kirton was also not aware of Ms Walmsley having worked on the Sunday sorting shift. In any event a significant difference was the fact of Ms Singh having raised with him the need for the person on the shift to be able to drive and highlighted that the Claimant did not do so, and his consideration of the issue in the light of this.[61]We add that we note, from the email of 22 June 2026 produced in response to the Tribunal’s Order, that Ms Walmsley’s role was described as a cover manager. That appears to indicate that her role, being a manager, was different to that of the Claimant and so the comparison may not be of like with like. It also appears to be consistent with not having worked with Ms Singh, since Ms Singh indicated that she was the only manager on site. However these points were not explored in evidence or submissions and as such we have not relied upon them in reaching our conclusions on this point. Payment issue[62]In her payslip of 28 July 2023, the Claimant was incorrectly paid for only 7 hours, whereas as pay was a week in arrears she should have been paid for 16 hours. She raised this with her union representative Mr Bogle, who took it up with management, and the error was corrected. The Claimant asserted that this shows that the decision had been made before she was notified. We do not accept that was the case. The payslip shows only that the payment was an error. It was promptly corrected. No explanation was provided as to why the error would have been made deliberately. We accept the Respondent’s explanation that it was an administrative error. Absence from September 2023[63]By September 2023 the Claimant had acquired ten weeks of annual leave (or ten days of leave given that she worked for only one shift a week). She took a period of leave from 30 September 2023 when she travelled to the US. She travelled from there to Ghana for a further period of leave. However she fell ill with malaria whilst in Ghana and began a period of sick leave from 2 December 2023. This continued up to her resignation from employment on 9 March 2024, following which her notice period was taken as annual leave. She therefore did not return to work.[64]The Claimant held keys to the pedestrian gate for the Office. Before she left she handed over her keys. Mr Kirton’s evidence was that she said that she may not return. The Respondent placed weight on this in support of the contention that it was always the Claimant’s intention not to return to work, which the Claimant disputed. We are not satisfied that reliance can safely be placed on Mr Kirton’s recollection in this respect. We accept that looking back on matters from the perspective of the Claimant’s long sickness absence, which by the time of his departure had stretched to almost two months, Mr Kirton may have connected this with the keys having been returned and his take on what had been said when doing so. However we also accept that it was the Claimant’s usual practice to hand over the keys before going away as she was the person who used to open the gate. Mr Kirton disputed this on the basis that if so she would have handed over the keys each time she went away. But since he had become manager, and prior to beginning the period of leave on 30 September 2023, the Claimant had taken no annual leave since returning to work on 11 March 2023. Further, as further addressed below, it was Mr Blackman’s evidence that Mr Kirton made no mention of these matters to him, even though they overlapped for a week. Given the passage of time, the potential for misunderstanding since Mr Kirton was not aware of the Claimant’s practice of handing over her keys, and the absence of any corroboration that Mr Kirton had these matters in mind at the time of the handover with Mr Blackman in 2024, we do not regard Mr Kirton’s recollection of the gist of what was said as reliable.[65]In any event even at face value a comment that the Claimant may not return was consistent with being a passing comment as to a future possible contingency rather than any decision not to return. At least if there had been a clear communication that the Claimant would not be returning, it is to be expected that there would have some note or communication in relation to this. None was produced.[66]We add that in evidence Mr Kirton also stated that he believed that the Claimant stated that she had something in Ghana to attend to and did not have a timeframe as to how long it would take and he believed that it was to do with a business or nursing home where something had gone wrong. He was not certain in this recollection and nor was it put to the Claimant and there was no exploration of this issue with her. We do not accept that reliance can safely be placed on it. The reason for the Claimant’s extended absence into March 2024 was her annual leave and then that she fell ill. Sickness absence[67]The Claimant began a period of sickness absence from 2 December 2023. That was the first Saturday, and therefore the first working day, since she had fallen seriously ill with malaria. A medical report which she later submitted to the Respondent, dated 2 January 2024, recorded that she had been rushed to hospital on 29 November 2023.[68]At the outset of her sick leave the Claimant’s manager was still Mr Kirton. He asked that, since the Claimant was abroad, she call him to update him on a weekly basis. At first she did not keep to this, but after Mr Kirton reinforced the need to be in contact weekly, she did so.[69]Mr Kirton also asked that the Claimant provide medical certificates to cover her absence. He did not say that these needed to be provided on a weekly basis, and was unaware that this was the policy requirement. The Claimant provided him with a copy of two medical reports from a “Physician Assistant Medical” on the headed paper of the Nsuta Polyclinic in Ghana. The report, and each subsequent report provided, had a telephone number and email address for the Physician Assistant who provided the report (being the same person in each case). At no stage was any issue raised as to the report being from a “Physician Assistant” rather than a doctor.[70]The first report, dated 2 January 2024, stated that the Claimant had severe malaria, that she was currently doing well on medication and had been scheduled for final review on 19 January 2024. The Claimant’s recollection, in her evidence to the tribunal, was that she had been admitted to hospital around Christman 2023, and that she remained there until 26 February 2024. The report indicates however that the date of her initial admission was on 29 November 2023, that she had been on admission for two weeks, after which she was discharged, and review dates were set. Although it had been anticipated that the final review would be 19 January 2024, the second report, dated 20 January 2024, indicated that the Claimant had again tested positive, and was again “on admission” and undergoing a course of treatment over a period of four weeks. It was recommended that she be excused from work for that four week period from 20 January 2024 to 17 February 2024.[71]When not in hospital during this period, the Claimant had to go back every two weeks for review/ check-up. Initial communications with Mr Blackman[72]Robert Blackman succeeded Mr Kirton as Customer Operations Manager on 29 January 2024. Like Mr Kirton, he worked on a rolling six day timetable, in which he had Sundays off and one other day off each six days.[73]Mr Blackman did not meet with the Claimant in the period after he took over as manager, as the Claimant was off work sick and still in Ghana. Prior to becoming manager, Mr Blackman had met the Claimant on one occasion, in around 2023, when she was still working in the Callers Office, when he had covered the Tottenham office on a Sunday. This was a brief meeting. Indeed the Claimant did not recall ever having met him.[74]At the start of his appointment as manager of the Tottenham hub there was a week when Mr Blackman overlapped with Mr Kirton. He had limited information about the Claimant. He did not read her personnel file, though he had access to it. He had the information that the Claimant was on long term sickness absence, and the dates of her absence, and that this had immediately followed two months annual leave, and that her absence was because she had contracted malaria. The Claimant was one of four or five employees on long terms sickness absence at that time, though the only employee abroad. He was aware that her normal working time was one day a week on Saturdays, but not aware of the reduction from 16 hours or the reasons for it. He was not aware of her age other than could be surmised from having met her once, and was not aware that she had taken retirement and then returned to work. Nor was he aware that she had previously suffered a foot injury.[75]As noted above, Mr Blackman’s evidence was that Mr Kirton did not mention anything to him about the Claimant having handed in her key or saying she might not return or anything about a business in Ghana, and that nor did Mr Kirton express his view that she might not return. On Mr Kirton’s account of what the Claimant had said to him it is surprising that he made no mention of this to Mr Blackman, given that they overlapped for a week and he would have updated Mr Blackman on the instances of long term sickness absence. However we accept Mr Blackman’s evidence that it was not mentioned. He had no apparent reason for denying knowledge of this, in circumstances where it provided support for his admitted view that the Claimant would not return from sick leave, and it was part of the Respondent’s case that this provided the reason or was part of a reason for dismissal if constructive dismissal was found. Nor was there any evidence from Mr Kirton that he communicated these matters to Mr Blackman (the issue not having been explored in his evidence).[76]Mr Blackman first reached out to the Claimant by a WhatsApp message of 6 February 2024. He introduced himself as the new manager at Tottenham and asked the Claimant to give him a call. There was a brief exchange of messages. The Claimant indicated that she had just come home from the hospital after blood tests. We note that again indicates that, contrary to the Claimant’s recollection, she was not still in hospital at that time. Nor did the Claimant inform Mr Blackman that she was in hospital.[77]Mr Blackman thanked the Claimant for getting back to him. This was followed up with an initial, four minute call, on 7 February 2024. The Claimant mentioned that she had provided medical certificates to Mr Kirton and that she had weekly calls with Mr Kirton. Mr Blackman asked that she send the certificates to him and that she maintain weekly contact. Immediately after the call, the Claimant then sent the two medical reports from January 2024.[78]For the most part the Claimant maintained weekly contact. Mr Blackman called her on 12 February 2024, and they spoke for three minutes. On 19 February 2024 the Claimant sent Mr Blackman an updated medical report, attached to her WhatsApp message. The report indicated that the tests showed a still high malaria count and that there would be a four week management plan from 18 February to 20 March 2024, and recommended a “partial leave” during this period for full treatment.[79]In her message of 19 February 2024 the Claimant said that Mr Blackman could call her when free. They then had a two minute call on 21 February 2024 and a further three minute call on 26 February 2024. Mr Blackman next tried to call the Claimant a week later on 4 March 2024. There was no answer. This generated what the parties were agreed was an automated message, “tap to call back”. However at the time the Claimant misunderstood that to be a message left by Mr Blackman, in abrupt terms, instructing her to return the call. In the event although the Claimant did not inform the Respondent of this, she had been re-admitted to hospital on 29 February 2024, and remained there until around 6 March 2024. She therefore did not see the message until she came out, and she therefore did not call him until 7 March 2024. On that occasion therefore, rather than maintaining weekly contact, there was a gap of about ten days. The call on 7 March 2024, which we address further below, was a longer call, though still only ten minutes. Relevant policies[80]The Sick Pay and Sick Pay Conditions Policy provides that: “Certificates issued by a doctor other than a registered UK doctor will be accepted if the business considers that the circumstances are justified. Such certificates, and those signed by doctors practising abroad, must be submitted weekly.” (emphasis added)[81]The Attendance Procedure provides that: “If you are taken ill whilst on holiday abroad, you must supply medical certification from a registered doctor in that country, on a weekly basis until you return to the UK …” (emphasis added)[82]The Procedure also states that if, despite the efforts of the manager to get in touch, the employee fails to make contact, the manager will record the absence as “unauthorised” and will send a “No Contact” letter via Special Delivery which will provide for two days to respond. If contact is not maintained of if there is a failure to provide the medical certificates, any Royal May sick pay “may be stopped”, and in addition the manager “will follow the Unauthorised Absence/ Non Co-operation process which could potentially lead to … dismissal”.[83]In addition the Attendance Policy provides that: “ Regular contact between the manager and the employee who is absent is vital and they should seek to agree an appropriate time and date for reviewing together all but very short absences. The aim of maintaining contact during an absence is to encourage an early return to work wherever possible”.[84]The Policy goes on to explain that the Long Term Absence policy will be followed where an employee is absent from work for more than 14 days, and that regular contact between the manager and employee is vital and requires active participation of both parties.”[85]Similarly the Managing Long Term Absence Guide for employees records that a long term absence is an absence of more than 14 days. It reiterates that: “It is important that both the manager and employee are proactive in maintaining contact during periods of long term sickness absence. A weekly phone call can help to maintain the like with the workplace and reassure the employee that they are not forgotten.” [135] Misapprehension as to cancelling Occupational Health appointment and alleged apology[86]On 19 February 2024, after sending Mr Blackman the updated medical report, the Claimant suggested that Mr Blackman could call her when free, and then called with no answer on 21 February 2024. Mr Blackman then called her shortly afterwards. In a short (2 minute call), he informed her that the Respondent wanted to refer her to Occupational Health, and she agreed and also stated that she was not feeling well. He asked her to send her email address for that purpose, which she did immediately after the call (at 1.25pm).[87]Shortly afterwards (at 2.05pm), Mr Blackman received an email from the Occupational Health Service stating: “The ‘Primary Referral Form’ that you recently submitted for [the Claimant] has been rejected for the following reason: not in UK”[88]Mr Blackman read this incorrectly as indicating that the Claimant had rejected the referral. He therefore messaged the Claimant (at 2.16pm) noting (wrongly) that she had rejected the appointment and asking why.[89]The Claimant responded asking what appointment she had rejected and why he was asking her this. Mr Blackman, not appreciating his own error, replied to the effect that he had received an email from occupational health stating that she had rejected the appointment. The Claimant replied asking how she could have rejected an appointment she had not seen. She followed this up shortly afterwards on Wednesday 21 February 2024 stating that she had not received an email from occupational health and asking “Why are they lying.”[90]Following receipt of these texts Mr Blackman appreciated that there may have been an error. He was not able to access the email from occupational health to check this until he was next in work, either the following day, or the day after that, depending on where the rest day fell in his six day rotation. Given that the text messages indicated that that Claimant was agitated at the suggestion that she had rejected an occupational health appointment, the appropriate course would have been to reply without delay explaining that a mistake had been made. He was unable to explain why he did not do so, other than initially to say it did not occur to him to do so.[91]He did however call on 26 February 2024, rather than awaiting 7 days from the last call. His contention was that on the call he apologised for incorrectly stating that the Claimant had rejected the appointment. The Claimant disputes that there was any apology. Again, we doubt the reliability of either recollection. On balance we consider that it is more likely that a brief apology was given, or in any event an acknowledgment that Mr Blackman had been mistaken and the Claimant had not rejected the appointment. We take into account the following:91.1 The Claimant’s evidence was that there was no discussion of the occupational health referral at all on the call. That appears implausible. Given how the text messages had left off it is overwhelmingly likely that if Mr Blackman had not raised the issue, the Claimant would have done so.91.2 Once the issue was raised it is unclear how the topic could have been shut down without Mr Blackman accepting that he had been mistaken in that the Claimant had not rejected the appointment. In any event the Claimant did not indicate anything else was said to move from the subject, and as above we regard the assertion that it was not raised at all as implausible.91.3 Mr Blackman had explained that he wished to arrange an occupational health appointment. Without some explanation there would be the obvious question on the call on 21 February and subsequently of what was happening in relation to that. Yet, it is not suggested by either the Claimant or Mr Blackman that this came up again. The most likely reason is that Mr Blackman in apologising had mentioned that it was occupational health that had cancelled because the Claimant was not in the UK91.4 We have taken into account the brevity of the call. Again however a brief apology would appear to have been the most obvious way of moving on from the issue.91.5 That is also consistent with not waiting a full seven days for the follow up call.91.6 In the Claimant’s resignation letter there was no mention of this issue. Nor was it mentioned in her Claim Form. The Claimant’s explanation for not referring to it in the resignation letter was that she did not see the need as there was no trust anymore. We regard that as unpersuasive. The resignation letter did set out points of disagreement as to the alleged treatment, which may be viewed as her salient complaints. The failure to mention this issue is more consistent with having moved on having received an apology.[92]As to the decision to refer to occupational health, Mr Blackman saw that as an appropriate course given that the Claimant was on long term sickness absence (defined as more than 14 days) and on the basis that without guidance from occupational health the Respondent was not in a position to know what help could be given to the Claimant, including as to helping her return to work. That is also consistent with the Attendance Policy, and Managing Long Term Absence Policy, both of which give a broad discretion for advice to be sought as appropriate to assist managers in decisions. We do not accept that the referral to occupational health objectively conveyed a lack of trust in the Claimant, rather than being an ordinary management step to obtain a better understanding of the position and the prognosis. 26 February – alleged request for details of medication[93]The Claimant also contends that during the short call with Mr Blackman on 26 February 2024 he requested that she send details of her medication. Mr Blackman initially denied having requested this, but then stated that he may have asked if she was on medication as part of getting an understanding of her condition and what treatment she was receiving. It is more likely in our view that the Claimant was asked about her medication. That the Claimant understood that she was being asked this is evidenced by her resignation letter of 10 March 2024 which records that such a request was made. Further the Grounds of Resistance admit that such a request was made and explained that it was to gain an understanding of the Claimant’s state of health in a supportive manner. We accept that the purpose was to seek to gain a better understanding of the Claimant’s situation in circumstances where the usual route for doing so, being referral to occupational health, was not available. In any event no such information as to the details of medication was provided.. The Claimant chose not to send this as she considered the information to be private. Nor was this pursued by the Respondent. Nor do we consider it objectively conveyed a lack of trust in the Claimant, rather than being a step to seek to obtain a better understanding of the situation in the light of the occupational health referral being unavailable, and without any steps to compel the Claimant to provide the information. 4 March call[94]Mr Blackman called the Claimant on 4 March 2024. There was no answer. There was what the parties agreed was an automated message “Tap to call back”. The Claimant mistakenly understood that as being a message for her to call him back. In the list of issues an allegation was that on this call Mr Blackman required the Claimant to provide medical certificates, despite having been provided with a certificate covering the period until the end of March. That could not have been on the 4 March, as the call was not answered on that day. In evidence the Claimant confirmed that it related to 7 March 2024. No contact letter[95]It was Mr Blackman’s evidence that on one occasion he wrote to the Claimant at her home address. For reasons the Respondent was unable to explain, that letter was not before the tribunal. Mr Blackman explained that it would have been a letter referring to her being out of contact, and asking for her to get in touch, which was the first stage of three stages to be followed under the attendance process relating to failure to make contact. His written evidence suggested it had been sent at an early stage after he became the manager at Tottenham, in that it indicated he never wrote to that address again because he did not receive a response. Indeed that suggested it may have been prior to the commencement of WhatsApp contact. However in his oral evidence he initially stated that it would not have been at the outset and was likely to be mid to end February. That made little sense as the Claimant was not out of contact at that time. He later stated that it may have been after the missed called on 4 March 2024, and that it was discussed on the call on 7 March 2024. That is more plausible, but it might be expected that if so it would also have been attached to a WhatsApp message. Mr Blackman sought to explain this on the basis that the system on which the letter was generated (People Case Manager) did not allow for this to be done. That may have been his understanding, though it is unclear why a picture or scan of it could not have been sent.[96]It was not put to the Claimant during her evidence that the letter had been sent at that time or discussed on the call, and her position stated during cross-examination of Mr Blackman was that it had not been received. She did refer in her resignation letter and her evidence to one letter received from the Respondent, but this was during the time that Mr Russell was manager.[97]Given the fluctuation and inconsistency in Mr Blackman’s own evidence, and the failure to provide a copy of the letter, we regard his evidence as to when and whether the letter was sent, and whether it was discussed in the call on 7 March 2024, as unreliable.[98]In the event we have not found it necessary for our conclusions to make a finding as to whether the letter was sent. The sending of the letter was not something relied upon in the list of issues or in final submissions as a ground for discrimination or constructive dismissal. We accept that if it was sent it would have been one of the matters discussed in the call on 7 March 2024, but again do not consider that whether or not this was the case affects our conclusions. Requirement to provide weekly medical certificates[99]Mr Blackman had weekly calls with the Area Manager, Mr Colin Ferguson (Operational Performance Lead for North and Central London), and with HR, to discuss sickness absences and update HR (which he referred to as “sick calls”). These were referred to before us as “sick calls.” They related to all the long term sickness absences and not just the Claimant. One point drawn to Mr Blackman’s attention at some point in those calls was the need for certificates to be provided on a weekly basis where the employee was sick whilst abroad. The feedback from HR was that the medical reports he had received did not meet the requirement in relation to medical certificates, which he understood to be because they were not provided weekly. He was no aware of the requirement prior to this being drawn to his attention in these sick calls, having not previously dealt with an employee who had fallen sick whilst abroad. Nor was he able to assist in his evidence as to what the rationale was for this in circumstances where there was a medical report covering a longer period. He regarded it as part of his role dutifully to apply the Respondent’s policy.[100]There were some differences in the evidence as to when Mr Blackman first relayed to the Claimant the requirement for weekly certificates and what was said. In her identification of the issues, the Claimant had indicated that the request for certificates had been made on 4 March (later corrected to 7 March), and there was no reference to an earlier request. In oral evidence, the Claimant initially indicated that the requests had been made on 7 February, and later said that it was first made on 7 March 2024, and also changed as to whether or not in the initial call, or only on 7 March 2024, the explanation was given that this was the policy. Mr Blackman’s evidence was that he would have raised this in one of the early calls, likely to be the call on 12 February 2024, and would have said this was due to the policy, and that he raised it on each subsequent call. There was a tendency in his evidence to refer to what he would have said, not being the language of direct recollection. That was unsurprising. Both accounts faced the difficulty of recalling details of short calls from long ago without having kept notes.[101]We find that it is more likely that the requirement for weekly reports was first raised on the call on 7 March 2024. We take into account that:101.1 The correspondence is more consistent with the Claimant understanding that a report covering a longer period was permissible. Thus when submitting her certificate on 19 February 2024, there was no explanation in her covering email for the fact it covered a four week period.101.2 The call immediately afterwards, on 21 February 2024, lasted only two minutes, and covered the prospect of an occupational health referral. Had the need for weekly certificates been raised it is likely there would have been some discussion at that stage as to why the report provided was not sufficient. The same applies to the 3 minute call on 26 February 2024.101.3 It does not follow from the fact that there were weekly sick calls that the need for weekly certificates would have been relayed to Mr Blackman straight away. Mr Kirton had not been made aware of the need for weekly certificates.101.4 In the Grounds of Resistance it was admitted that on 4 March 2024 the Claimant was informed that she would be required to provide weekly medical certificates. Whilst it is now clear that there was no call on that date, and the substantive call was on 7 March 2024, that is consistent with the Claimant not having been informed of the requirement earlier.[102]In any event, whether or not there had been previous mention of the requirement for weekly certificates, it is common ground that it was only in the call on 7 March 2024 that the Claimant was told that pay would be withheld if she did not comply. Call on 7 March 2024[103]The call from Mr Blackman to the Claimant on 7 March 2024 was longer than the previous calls, being for ten minutes. The context of the call was that, having agreed to maintain contact every seven days, by the time of the call ten days had passed without contact, despite the missed call from Mr Blackman on 4 March 2024. The reason was that the Claimant had been readmitted to hospital on around 29 February 2024, and did not come out until around 6 March 2024. However the Respondent was unaware of this, and not informed on the call that the Claimant had been in hospital.[104]This was the first occasion on which weekly contact had not been maintained since Mr Blackman established contact with the Claimant in early February. During the call Mr Blackman informed the Claimant that she was required to provide weekly fit notes and further stated that if she failed to do so her pay would be withheld.[105]The Claimant asked why this was needed given that she already had a certificate which covered the period up to 20 March 2024. She explained that this was difficult in Ghana, and would mean travelling into the city. Mr Blackman’s recollection is that she said that this was three hours away. It is more likely that she said to the effect that it was a three hour round trip, which more closely accords with her evidence that she had to travel an hour into the city. Mr Blackman accepted in evidence that he believed this was the case (or as he put it, had no reason to disbelieve this).[106]There was a dispute in the evidence as to whether, as the Claimant asserted but denied by Mr Blackman, she told Mr Blackman that she was not fit enough to travel. We do not accept that the Claimant was as definitive as saying that she was not fit at all to travel. If what she had said was as stark as that it is likely that it would have featured more prominently in the resignation letter. The letter did state she was not fit to make the journey from Accra to London, but in contrast made no mention of not being fit enough to collect the doctor’s report or having mentioned that to Mr Blackman. Further, the Claimant was under a programme where she was travelling to be reviewed once every two weeks.[107]We do however accept that it is likely that the Claimant made reference to the difficulty of travelling in the light of her condition. Her evidence, which we accept, was that the effect of the malaria was that she was tied all the time and did not feel like getting up from bed. Further the context was of explaining the problem with weekly certificates, as such it is improbable that there was no reference to how the need to travel in to the city impacted on her.[108]Whilst we accept that it was the Claimant’s genuine view that she would need to travel to the City to obtain the certificates, and Mr Blackman accepted at the time that that was the case, and the call on 7 March proceeded on that basis, it may be that was not correct. The medical reports had both a phone number and email address to be able to contact the physician assistant who had provided them. The Claimant suggested that in Ghana there were not the facilities to email medical certificates, but she accepted that she had a smartphone. The issue might still arise as to whether a certificate would be provided without seeing her, but she accepted that she had not asked or looked into whether they could be provided by email or WhatsApp or other electronic means. There was also the possibility of seeking a certificate on the occasions every two weeks when she had to return the clinic or hospital to be reviewed.[109]The Claimant could not see any reason for insisting on the weekly certificate given that she already had the certificate covering the period. Nor was she given any explanation by Mr Blackman other than referring to the policy. She regarded him as putting pressure on her for no good reason.[110]In the course of the call Mr Blackman also informed the Claimant that once she had been absent for six months her pay would be cut by half. The call ended Claimant ended the call saying that she would contact her CWU area manager.[111]We add that we do not accept Mr Blackman’s contention that it was on a prior call that the Claimant had raised the difficulty of compliance with weekly certificates due to the having to travel into the city. This follows from our conclusions as to whether the issue of weekly certificates was first raised. In any event the brevity of the earlier calls makes it improbable that it was discussed on any of those calls. The Claimant’s resignation[112]Following the 7 March call the Claimant sent a letter of resignation on 10 March 2024. The letter stated that she could no longer cope with the pressure which the Respondent and Mr Blackman had placed on her to return to work despite the evidence that she had sent as to her sickness.[113]She referred to the weekly telephone calls as “pointless” and complained as to Mr Blackman adding the requirement for weekly fit notes. She pointed to her sickness record. She complained that Mr Blackman wanted her to return to work when she had been declared not fit to travel to London and had been advised not to return until fully recovered from the malaria attack, and claimed that he was asking her to choose between her life and her job. She complained that neither Mr Blackman nor Mr Kirton had believed in what she was telling them or the medical report, and that she felt that she therefore had no reason to resign as she could not work where there was no trust.[114]Mr Blackman simply acknowledged receipt of the letter. He was upset at the allegations made against him and did not want to get involved in what he regarded would be a back and forth the process in responding. He therefore made no attempt to seek to persuade her to change her mind or to seek to reassure her that she was incorrect in her contention that the Respondent did not believe what she or her medical reports were telling them and were seeking to pressure her to return to work before she had fully recovered. Unfair Constructive dismissal[115]In relation to the claim of unfair dismissal, the first issue is as to whether there was a dismissal. The Claimant asserts that the conduct entailed a breach of the implied term of trust and confidence. This has two elements:115.1 Whether (applying an objective test) 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; and115.2 Whether it had reasonable and proper cause for doing so.[116]A breach of the implied term of confidence is necessarily a repudiatory breach: Omilaju v Waltham Forest LBC [2004] EWCA Civ 1493, [2005] ICR 481 (CA)) at [3].[117]As set out in Kaur v Leeds Teaching Hospitals [2018] IRLR 833 (CA) at [55]: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(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?[118]The decision in Kaur confirmed that even though there has been affirmation of a contract (ie conveying by words or conduct an intention to keep the contract alive) after a repudiatory breach, this does not empty the scales in relation to whether the conduct as a whole amounts to a repudiatory breach. There can still be further conduct after the affirmation which, taken in conjunction with the earlier treatment, amounts to a repudiatory breach, provided that the post-affirmation conduct contributes something to the overall repudiatory conduct. That is sometimes referred to as the final straw, but it may also be a number of matters that together have that effect.[119]In his submissions Mr Ahmed (for the Respondent), correctly identified the following principles as established in Omilaju:119.1 Innocuous acts or something which is utterly trivial cannot be a final straw even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer.119.2 The final straw must contribute something to the breach, although what it adds might be relatively insignificant.119.3 The act does not have to be of the same character as the earlier acts complained of.119.4 It is not necessary to characterise the final straw as “unreasonable” or “blameworthy” conduct in isolation, though in most cases it is likely to be so.119.5 The test of whether the conduct is (taken together) such as to destroy or seriously damage the relationship is objective.[120]If the Claimant, was dismissed, the further issues are as to whether it was for a potentially fair reason (with the reason for dismissal, being the reason for the treatment entailing the repudiatory conduct), and if so, whether the Respondent acted reasonably or unreasonably in all the circumstances in treating that reason as a sufficient reason to dismiss.[121]The question of whether there was a reason for dismissal which is capable of being a substantial reason does not turn on whether a belief (in this case the alleged belief that the Claimant had no intention of returning, was correct or reasonable, provided it was genuinely held. An analogy might be drawn with authority that a mistaken belief that an employee had resigned might amount to a substantial reason: see Impact Recruitment Service Ltd v Korpysa [2025] ICR 1161 (EAT) at [36]. In that case the EAT noted that the authorities tend to suggest that the threshold for what counts as a substantial reason for these purposes is relatively low. However even if there was a potentially fair reason, the issue would remain as to whether the dismissal was reasonable in all the circumstances, within the range of reasonable responses. Direct Discrimination and harassment (a) Direct discrimination[122]Direct discrimination is defined by s.13 Equality Act 2010 (“EqA”) as follows:: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[123]Whilst for age discrimination it is a defence to show that treatment was a proportionate means of achieving a legitimate aim, the Respondent confirmed that no reliance is placed on this.[124]On a comparison for the purposes of establishing discrimination, there must be “no material difference between the circumstances relating to the Claimant and the comparator: s.23(1) EqA. However the treatment of others whose circumstances are not sufficiently similar to be actual comparators, might still be relevant evidentially in relation to inferences as to how a hypothetical comparator would have been treated, provided that material differences are taken into account.[125]If detrimental treatment is found to be harassment, the detriment cannot also then be direct discrimination: s.212 EqA. (b) Harassment[126]In relation to harassment, s.26 EqA provides, so far as material, that: “(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[127]Whereas direct discrimination must be because of a protected characteristic, harassment need only be related to a protected characteristic. As explained in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and another [2020] IRLR 495 at [24, 25]: “24. … the broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. … 25. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.”[128]It is not necessary that the conduct has the purpose of violating dignity or creating an intimidating, hostile, degrading or offensive environment (sometimes referred as the proscribed effect). It is sufficient if that is the effect of the conduct (provided it is related to age or sex). This has both subjective elements, because the perception of the Claimant is to be taken into account, and an objective element, because it is also necessary to consider whether it was reasonable for the conduct to have that effect, as well as taking into account all the other circumstances of the case. (c) Burden of proof in relation to discrimination and harassment[129]As to the burden of proof, so far as material s.136 EqA provides: “(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.”[130]Relevant guidance as to the burden of proof was set out in Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40 at [16-19]. In overview:130.1 “it is for the claimant who complains of sex [or age] discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful”. If the Claimant does not prove such facts, the discrimination clam will fail.130.2 It is unusual to find direct evidence of discrimination. Whether there is a prima facie case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.130.3 At the first stage, in relation to whether the burden shifts, the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them, assuming that there is no adequate explanation for those facts.130.4 If the Claimant proves facts from which conclusions could be drawn that the respondent employer has treated the Claimant less favourably on the grounds of sex or age, the burden of proof moves to the Respondent. In that event it is for the Respondent to prove that the treatment was in no sense whatsoever on the grounds of age or sex. This requires the tribunal to assess not only whether the Respondent has provided an explanation for the facts from which the inferences can be drawn, but also whether that is adequate to discharge the burden of proof on the balance of probabilities that sex or age were not a ground for the treatment in question. Since the facts necessary to provide an explanation would normally be in the possession of the Respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof.130.5 It has been said that the above guidance (drawn from Igen [2005] ICR 931) are important where there is reason for doubt as to the facts necessary to establish discrimination, such as in relation to the respondent’s motivation, but have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other (Allen at [17, 18]). However “if there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment.” In such a case the tribunal could only properly move to the second stage on the basis of assuming the first stage of establishing a prima facie case has been passed so that the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence.130.6 “Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet.”130.7 “If at the end of the hearing, having considered all of the evidence, the tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a nondiscriminatory reason for the impugned treatment, there … is much to be said for making that finding and then going on to say that, in addition, the respondent’s non-discriminatory reason for the treatment was accepted.” Discrimination and harassment time limits: continuing act and just and equitable extension[131]Pursuant to s.123(1) EqA proceedings may not be brought after the end of three months starting with the date of the act to which the complaint relates or “such other period as the employment tribunal thinks just and equitable.”[132]The effect of the extension for ACAS conciliation is (under s.140B(3)) is in substance that anything done more than three months prior to ACAS notification of 27 March 2024, and therefore prior to 28 December 2023, is potentially out of time. (a) Continuing act[133]Pursuant to s.123(a) EqA, conduct extending over a period is treated as done at the end of the period. As to this, as explained in Aziz v FDA [2010] EWCA Civ 304 and Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40:133.1 The question is whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.133.2 It may be sufficient if the acts of discriminatory treatment (if discrimination is established) were linked by an ongoing discriminatory state of affairs for which the Respondent was responsible: Aziz at [32] (following Hendricks).133.3 Another way of putting this is whether the complaints are sufficiently linked as to be a continuing acts or state of affairs: Aziz at [36]133.4 In considering whether separate incidents from part of an act extending over a period, one relevant but not conclusive factors is whether the same or different individuals were involved in those incidents: Aziz at [33]133.5 There is no necessary requirement that the conduct must all be related to the same protected characteristic or to the same type of prohibited conduct (such as a mixture of harassment and direct discrimination): Allen at [13]. (b) Just and equitable extension[134]The burden rests on the Claimant to persuade the tribunal that it is just and equitable to extend time. There is no presumption in favour of granting an extension but nor is there any requirement for exceptional circumstances. All that is required is that it is just and equitable in all the circumstances that the extension be granted.[135]As emphasised in Adedeji v University Hospitals Birmingham [2021] EWCA Civ 23, at para 37, the tribunal has “a very broad general discretion” and should “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time”.[136]Relevant factors include:136.1 The length of and reasons for the delay. Ignorance of rights is a relevant consideration but it is necessary to consider whether the ignorance is reasonable, which may include consideration of whether the claimant has or should have made enquiries, undertaken any research or taken advice: Leeds & Yorkshire Housing Association Ltd v Fothergill UKEAT/0211/20/LA, 28 January 2021.136.2 Whether the delay has prejudiced the respondent and the balance of prejudice. In Miller and others v The Ministry of Justice and others UKEAT/0003/15/LA, 15 March 2016, the EAT distinguished between forensic prejudice which is caused by such things as fading memories, loss of documents and losing touch with witnesses and the prejudice which arises from loss of a limitation defence. However the EAT made clear that there is no necessary requirement for forensic prejudice. Where there is forensic prejudice it may well be that is decisive. The converse is not true.136.3 Any clear view as to the merits. It is for the ET to determine how far it is necessary to look at the circumstances of the matter complained of, but it may want to form at least a rough idea of the strength or weakness of the complaint: Lupetti v Wrens Old House Ltd [1984] ICR 348 (EAT).[137]In Adedeji (at para 24) Underhill LJ commented that it was unexceptionable for the ET to direct itself that there was a public interest in the enforcement of time limits. D. Discussion (1) Constructive unfair dismissal[138]We address first the constructive dismissal claim by reference to the issues set out in the List of Issues, but keeping in mind that conclusions might need to be revisited were there to be a finding that treatment was discriminatory.[139]The first issue is whether there was a breach of the implied term of trust and confidence. We deal with the matters chronologically, though in one sense it may be appropriate to deal with the events of 2024 first because if that amounted to a repudiatory breach, the issue as to whether there was a repudiatory breach by reference to events of July 2023, and affirmation following that, does not arise. 2.2.7 On 16 July 2023, while working in the Sunday delivery section, Ms. Sam Singh, the manager, asked the Claimant to move a vehicle.[140]Whilst we have found that it is likely that this occurred, we do not accept that it was something capable of contributing to a breach of the implied term of trust and confidence. Whether it was a request or an instruction, it was made or given without knowledge that the Claimant did not drive, and was not pursued further once the Claimant explained that was the case. 2.2.1 On 22nd July 2023, Mr. Russel Kirton informed the Claimant that her hours would be reduced to 7 per week, citing her inability to drive as the reason. 2.2.8 The Claimant was summoned to a meeting in Mr. Russel Kirton's office on 22nd July 2023 and informed that the Claimant that her role would be terminated, effective from 23rd July 2023 [ie after her shift on 23rd July 2023]. The reason given was her inability to drive, which was stated as a requirement for the role by Ms. Sam Singh.[141]We take points 2.21 and 2.2.8 together. As set out in our findings of fact we broadly accept that these matters occurred, that the Claimant was not given prior notice of the purpose of the meeting, and that the Claimant was informed of the change at the outset of the meeting. We accept that the reason given for removing the Claimant from the shift was genuine, and reasonably founded on Mr Kirton’s assessment of the needs of the shift taking into account the input from Ms Singh.[142]There was the opportunity for the Claimant to take the matter up with Mr Bogle. There was also the opportunity in the meeting to question the decision or express disagreement with it or to raise subsequent concerns once there has been the opportunity to consider it. We have also accepted that there was consideration of and some discussion with the Claimant about whether there was alternative work. We also accept that by her conduct in raising no objection and continuing to work on the reduced hours, the Claimant objectively conveyed her acceptance of the change.[143]However this was a significant change, which given the lack of apparent alternative replacement work was likely to and did result in the Claimant’s hours being reduced to less than half. The original cause was the closure of the Callers Office, but the Sunday work had been put forward as work the Claimant could do instead. In those circumstances, rather than presenting the Claimant with the decision at the outset of the meeting, a more consultative approach should have been taken, explaining the concern relating to Sunday sorting shift and expressly inviting the Claimant’s comments, with some time to consider these, rather presenting a decision at the outset of the meeting. There is an important distinction between(a) presenting a decision and awaiting a challenge, and(b) being seen to invite comments and take on views at a formative stage. Whether or not the Claimant’s response if any would have changed the conclusion, a consultative approach may have gone some way to encouraging the Claimant to express her views and reducing an element of distrust or misunderstanding flowing from the decision.[144]Given the absence of any objection raised either at the time or subsequently, we do not accept that this was something which of itself was sufficient to entail a breach of the trust and confidence terms. In any event, there was affirmation following this in the light of the Claimant having continued to work without raising the issue for a considerable period thereafter. However it was something that objectively was such as would (and did) contribute meaningfully towards it, and which is therefore relevant to take into account in relation to the other allegations notably in relation to 2024. 2.2.9 On 28th July 2023, the Claimant's payslip demonstrated that the reduction in her working hours had been decided upon a week earlier, on 16th July 2023, before she was notified. 2.2.10 On 28th July 2023, the Claimant did not receive payment for 16 hours worked in the previous week. After raising this issue with Mr. Roger Bogle, the Claimant received a credit for the outstanding payment in the subsequent pay period.[145]We take points 2.2.9 and 2.2.10 together. They reflected an administrative error which was quickly remedied once the issue was raised on the Claimant’s behalf by Mr Bogle. It was not something capable of contributing to a breach of the implied term of trust and confidence. 2.2.11 The Claimant further contends that her reassignment to the Sunday delivery section on 16th July 2023 was due to Ms. Saira Smith's absence for her wedding. Upon Ms. Saira Smith's return to work on 23rd July 2023, the Claimant was deemed surplus and subsequently assigned to cover another colleague's absence. Ms. Saira Smith then resumed performing the Claimant's previous duties on an overtime basis.[146]We refer to our findings of fact above. We reject the contention that the assignment was due to Ms Smith’s absence, or that her removal from the shift was related to Ms Smith’s return. 2.2.5 On 21st February 2024, Mr. Robert Blackman communicated with the Claimant via WhatsApp, falsely accusing her of refusing to cooperate with an occupational health appointment.[147]As a result of his misreading of the message from occupational health, Mr Blackman did incorrectly assert to the Claimant that she had rejected the appointment with occupational health and asked her why. Acting on the same misapprehension, he then incorrectly stated that he had received a message from occupational health to that effect.[148]The principal focus, in relation to whether this was objectively conduct that entailed or contributed materially to a breach of the implied term of trust and confidence, relates to whether, as it is put in the Respondent’s closing submissions, this was remedied by a subsequent apology in the next communication. We have found on balance that a brief apology was given, or in any event an acknowledgment that Mr Blackman had been mistaken and the Claimant had not rejected the appointment.[149]It would have been better if Mr Blackman had responded earlier, either by calling the Claimant as soon as he confirmed that there had been a mistake or messaging her to correct what he had said and to confirm he accepted that she had not rejected an appointment. Mr Blackman was unable to explain why he did not do so. We take into account the difficulty of recalling the detail of events from so long ago. It may be that he considered it was better dealt with by phone. But given our finding as to what was said when he did call, and that he did so within five days of the last call rather than awaiting a week, we are not satisfied that this was a matter which, objectively, was capable of contributing materially to a breach of the implied term. 2.2.2 On 26th February 2024, Mr. Robert Blackman requested details of the Claimant's medication via a WhatsApp call.[150]We accept that Mr Blackman did make this request. It was touched upon in the context of a brief call, in the context where an occupational health referral was not possible since the Claimant was abroad, and with a view to seeking to obtain a better understanding of the Claimant’s situation, likely prompted by a suggestion to do so in a sick call. It was not insisted upon when the information was not provided and it was not a request made because of a lack of trust in the Claimant.[151]We accept that, at least taken together with what occurred in the call on 7 March 2024, the request was taken by the Claimant as conveying that she was not trusted. That is reflected in her statement to that effect in her resignation letter. However there was no evidence before us that this was raised with Mr Blackman prior to the resignation letter. He was therefore not given an opportunity by the Claimant to explain and counter that impression prior to her resignation.[152]We therefore do not accept that this was conduct which, objectively, was such as to contribute to a breach of the implied term of trust and confidence. 2.2.6 From 26th February 2024 onwards, Mr. Robert Blackman ceased written communication with the Claimant, opting instead for telephone calls until her resignation.[153]In one sense the reference to ceasing communication from 26 February 2024 is surprising. The last WhatsApp message prior to the resignation letter was on 21 February 2024. But the reference to 26 February 2024 was the first call following the messages of 21 February, and therefore the date on which it would have become apparent that Mr Blackman was responding by phone rather than messaging.[154]There was no marked change in the approach to communications after 26 February, or indeed after 21 February, compared to what had occurred previously. Other than the messages prompted by the misapprehension as to rejecting the occupational health appointment, the only previous messages sent by Mr Blackman were on 6 February 2024 when initially establishing contact with the Claimant. One previous instance was on 19 February 2024 when the Claimant messaged him saying she had sent the medical report and asking whether he was free to talk. Mr Blackman did not send a message in response and instead proceeded to call the Claimant on 21 February 2024.[155]Nor was there any evidence before us of the Claimant having raised any objection to the approach of generally communicating by telephone. We accept that, in general, in the absence of objection, it was reasonable to take the view that brief weekly telephone calls were a reasonable approach to keeping in touch and communicating during absence.[156]Some different considerations arise in relation to the communications over the occupational health issue, where messages called for a response. We have addressed that above. The other instance where the absence of a WhatsApp message may be regarded as surprising is if a no contact letter was sent after 4 March 2024 in the light of the failure to maintain contact within 7 days. However that was not a matter subject to specific complaint in the claim. In any event, Mr Blackman’s experience had been that the Claimant would return missed calls, and it was consistent with that for him to have expected to discuss any such letter, if sent, when the call was returned.[157]In all, we are not satisfied that the approach to written communications from 26 February 2024 was, objectively, conduct entailing or contributing to any breach of the implied term of trust and confidence. 2.2.3 On 7th March 2024, Mr. Robert Blackman informed the Claimant that she would be required to provide weekly medical certificates. Despite the Claimant possessing a medical certificate covering her period of unfitness for work until the end of March 2024. 2.2.4 Mr. Robert Blackman telephoned the Claimant on 7th March 2024 and threatened to withhold her pay.[158]We take 2.2.3 and 2.24 together. We refer to our findings of fact in relation to them set out above.[159]The context of the call was that, albeit for the first time since Mr Blackman had first contacted the Claimant, she had failed to maintain weekly contact. He was unaware that this was because she had been in hospital, and nor was he told of this on the call. Against that context, and in the light of the terms of the Respondent’s policy, it was a permissible approach for him to draw her attention to the requirement under the policy for weekly certificates and to what the policy stated in terms of loss of pay in the event of noncompliance.[160]However Mr Blackman’s response to the Claimant raising the difficulty of compliance with the requirement for weekly sick certificates is more problematic. The discussion proceeded on the premise that the Claimant would need to travel to the City to obtain the certificates. Mr Blackman’s response made clear that this was being required even though she had a report covering the period to 20 March, and irrespective of the difficulties which she raised in relation to compliance. There was no suggestion that there could be any leeway arising from those difficulties. On the contrary it was made clear that there would be loss of pay (whereas the wording of the policy provides that may be the case), and no explanation or rationale for this uncompromising approach was offered other than that it was the policy.[161]We do not accept that this response was mandated by the policy. The policy does not necessitate that there can be no exceptions. Mr Blackman could have responded to the concern raised by the Claimant by agreeing to consider further the position in the light of her concerns, which would have allowed him to review them with HR advice, and to make enquiries and revert with the rationale for the policy, rather than simply insisting that the compliance was required because it was the policy. Equally, even if the Claimant had not (as we have found) referred to the difficulty in the light of her condition of having to travel to the city, given that she was known be suffering from or recovering from malaria and had raised the issue of the difficulty caused by the long travel time into the city, there was an obvious need to understand and explore with the Claimant how that would impact upon her given her condition. That was all the more important if, as we have found likely, the Claimant did connect the difficulty of travel with her condition. It is not a sufficient answer to say that occupational health guidance would ordinarily be the means of doing so. That did not prevent eliciting the Claimant’s own perspective, or indeed in due course asking for this to be covered in the next doctor’s report. Nor was there any exploration with her as to whether there were alternative less onerous ways of obtaining the certificate.[162]We accept Mr Blackman’s evidence that, having been directed to require weekly certificates, he did not regard it as within his discretion to vary the application of the policy. That was not however a good answer to the failure even to give reassurance that he would review the position, and simply instead insisting that there had to be compliance, in effect making clear this was required irrespective of the difficulty of compliance and irrespective of the impact on her condition or recovery. We do not accept his contention that he would not have been aware how to go about looking into whether any variation was appropriate to meet particular circumstances. The obvious course would have been to raise this with his Area Manager and HR, whether in one of the weekly sick calls or otherwise.[163]We take into account that Mr Blackman was giving his immediate response in circumstances where this was the first occasion that the Claimant had explained the difficulty in providing weekly certificates (whether as we consider likely because the need for weekly certificates had not been raised before, or given the context that it was the first time the prospect of withholding pay was raised). However his response was not merely an intermediate one whilst he reflected on the point. It was an unambiguous management instruction to obtain a weekly certificate irrespective of the concerns raised, and without further investigation of them, and a firm statement that pay would be deducted if she did not.[164]We do not accept that the approach showed a lack of trust in the Claimant. The fact that it was stated to be the application of a policy of general application indicated otherwise. But it did convey a lack of empathy or concern which her employer could be expected to show for her welfare, and a refusal to engage with or address her concerns as to the difficulties caused. The impact was objectively likely to be all the greater coming at a time when the Claimant was suffering from ill health.[165]We also take into account that it was available for the Claimant to ask Mr Blackman to reconsider/ reflect upon that immediate response, or raise a grievance or have her union take up the matter. Indeed the fact it was the immediate response to the issue being raised for the first time may go some way to explaining why there was no consideration at that stage by either the Claimant or Mr Blackman as to whether there were any realistic alternatives to the Claimant having to travel into the city despite the contact details on the Medical reports. We do not however consider that a sufficient answer. Faced with the Claimant explaining how the requirement would cause substantial difficulty at a time she was suffering from or seeking to recover from malaria, Mr Blackman objectively displayed a disregard for her welfare by insisting that the policy must be followed because it was the policy without offering any rationale, and making clear that pay would be deducted if not.[166]Whilst not crucial to our determination, it is also in our view of some relevance that the Claimant was more than three months into her sickness absence and part way through a period covered by her current medical note, before the insistence that weekly certificates must be provided. That called into question whether the policy was of necessary application and indicated an element of discretion available as to whether to apply it. The same would however apply if the mention of weekly certificates had been raised previously but not insisted upon, or backed by a threat to withhold pay until the 7 March discussion. On either basis it was all the more important to be able to explain why the policy was being insisted upon at that juncture. The passage of three days beyond the period for keeping in touch was only a partial explanation. It did not engage with why it was essential given the period already covered by a certificate and the concerns raised as to the difficulties caused. It rendered it all the more inadequate simply to rehearse that it was the policy, without offering any rationale or event offering to come back to her with the rationale upon making further enquiries of HR. Was the conduct of 2024 such as objectively to destroy or seriously damage the relationship of trust and confidence without reasonable cause or excuse[167]We conclude that the insistence in the call of 7 March 2024, on a management instruction that weekly certificates be provided, and that pay would (not may) otherwise be withheld, in the face of the difficulties the Claimant explained it would cause and without any suggestion that there could be further investigation or consideration of this, and despite the absence being covered until 20 March by a medical report, and with no explanation provided (despite being requested) other than that it was the policy, conveyed such lack of empathy or concern for the Claimant’s welfare at a time of vulnerability, that it was such as objectively likely to destroy or seriously damage the relationship of trust and confidence. This was without reasonable cause or excuse. For the reasons we have set out above, the policy did require that Mr Blackman had to respond to the concerns raised in the way that he did.[168]We do not consider that reference to Mr Blackman’s tone take matters further. It may be that Mr Blackman’s tone in the 7 March 2024 meeting came across as unsupportive. However that is likely to have been as a result of the substance of what he was saying which we have found did convey a lack of empathy or concern for the Claimant’s welfare.[169]As to the Claimant’s contention that the effect of the communications was to pressure her to return to work, we accept that this impression may have been given by Mr Blackman’s stance in the 7 March call insisting on provision of a weekly certificate despite the explanation of the difficulty it caused. We do not accept that was in fact his intention. We have also accepted that other steps taken, including initially seeking the occupational health report, and seeking information as to medication were aspects of seeking to better understand the Claimant’s situation, rather than seeking to pressure her into returning to work early. Taken together with the earlier conduct[170]If, contrary to our conclusion above, the conduct in the 7 March 2024 was not of itself sufficient to amount to a repudiatory breach, we would accept that the cumulative effect of this taken together with the approach to the 22 July 2023 meeting had that effect. We take into account that the events involved wholly distinct matters by different managers. However both were, objectively, such as to be likely to cause, at least, erosion of trust in the Respondent. The first matter entailed presenting the Claimant with a decision to remove more than half her hours, or which at least had that potential, rather than adopting a consultative approach which conveyed that her view would be taken into account prior to the decision being made. The consequence was that the events on 7 March 2024 came against the context where the Claimant was entitled to have a degree of disaffection with how she, as a very long standing employee, had been treated by the Respondent. Affirmation[171]As the Claimant resigned within three days of the meeting on 7 March 2024, no issue as to affirmation arises. Was it a reason for resignation?[172]Clearly the treatment on 7 March 2024 was, put at its lowest, a major part of the reason for resignation. Whilst the events of 2023 were not the main factor, we accept that they played a part in the loss of trust in the Respondent, and therefore the reason resignation. Substantial reason for dismissal[173]The Respondent’s contention that the reason for dismissal was the genuine belief that the Claimant would not return was inconsistent with Mr Blackman’s own evidence, to the effect that it had no part in the treatment of the Claimant. Further if it did have some influence it was not the principal reason, which was to that he was to apply the policy in relation to managing absences whilst abroad.[174]It is not however necessary to dwell further on whether that amounted to substantial reason. Whether the reason is regarded as a belief that the Claimant would not return or application of the policy, it was not within the range of reasonable responses to adopt the approach taken in the 7 March 2024 call, insisting on provision of weekly certificates and stating that pay would be deducted if not, without any further investigation of the difficulties in compliance raised by the Claimant, and objectively displaying a lack of empathy or concern for her welfare. (2) Discrimination and harassment[175]We turn to the matters relied upon in support of the allegations of discrimination and harassment. (a) As of 29 July 2023, the Claimant’s Sunday (9 hour) shift was removed from her, reducing her total weekly hours from 16 hours to just the 7 hours of her Saturday shift. The reason given was the Claimant’s inability to drive. The hours of her Sunday shift were then covered Saira Smith as overtime. Ms Walmsley (who is not a driver) had also previously worked that shift.[176]We refer again to our findings of fact and our conclusions above in relation to the constructive dismissal claim. We have found that the decision to remove the Claimant’s hours was made first because of the closure of the Callers Office and then the conclusion as to the need for drivers on the Sunday sorting shift.[177]There was no actual comparator relied upon in relation to this allegation, though reference was made to Ms Walmsley. For the reasons identified above (see paragraphs 58 to 61) we do not consider that the allegation in relation to Ms Walmsley’s circumstances were the same even if she had worked on the shift, or a basis for inferring that a hypothetical comparator not sharing the Claimant’s age or sex would have been treated more favourably. The Claimant has not discharged the burden of establishing a prima facie case by establishing facts on the basis of which discrimination or harassment related to age or sex could be inferred. In any event, if that burden had been met, we are satisfied in the light of our findings of fact that the decision was in no sense whatsoever influenced by and had no relation to the Claimant’s sex or age. (b) On 16th July 2023, Ms. Sam Singh questioned the Claimant's suitability for the role, stating that driving was a requirement[178]Having regard to our findings of fact, again we are satisfied that there are no facts from which it could be inferred that the request or instruction was influenced in any way by or related in any way to the Claimant’s sex or age. (c) On 22nd July 2023, Mr. Russel Kirton informed the Claimant that her role was no longer available, citing her inability to drive as the reason, as relayed by Ms. Sam Singh during a meeting with Mr. Roger Bogle. The circumstances in which Mr Kirton informed the Claimant on 22 July 2023 that her Sunday role was no longer available, which includes (on the Claimant’s case):(1) calling her to a meeting without any forewarning of its purpose;(2) presenting the Claimant with the removal of her role without any or any further consultation (subject to discussion on a subsequent Saturday of a weekday role); and(3) doing so without any further process or documentation relating to termination of the role or further consideration of alternative work.[179]In so far as this relates to the substantive decision to remove hours, it is addressed by our conclusions under at paragraphs 176 and 177 above. So far as the process is concerned, as set out under the heading of constructive dismissal a more consultative approach should have been taken (whether or not documents summarising the decision were provided). However there was no evidence before us to indicate that a different approach was taken in any other case. There were no matters from which any inference could be drawn, absent an explanation, that the process was influenced or related in any way to the Claimant’s age or sex, such as to shift the burden of proof. (d) From 21 February 2024 there was a series of communications between the Claimant and Mr Robert Blackman pressuring the Claimant to return to work on 21 February, 26 February, 4 March, 7 March 2024. This includes the treatment itemised at 2.2.2 to 2.2.6 of the List of Issues in relation to constructive dismissal Comparator – Kathy Simpson[180]In relation to the events of 2024 only, the Claimant relied on Kathy Simpson as a comparator. Ms Simpson was an office based Operational Postal Grade worker. The Claimant’s contention was that Ms Simpson was off sick a lot, but the Claimant did not believe that she was referred to occupational health. We accept Mr Kirton’s evidence that Ms Simpson was referred to occupational health and was ultimately medically retired. In any event she was no longer employed by the time Mr Blackman became manager, and nor was it contended that she fell sick whilst abroad. We therefore do not consider that the material circumstances are sufficiently similar in her case to the Claimant, and nor does her situation provide any assistance in relation to drawing inferences as to how a hypothetical comparator would have been treated.[181]We turn again to the individual matters relied upon in relation to 21 February, 26 February and 7 March 2024. The reference to 4 March 2024 falls away given that it was common ground that there was only a missed call on that day, and the wording “tap to call back” is likely to have been an automated message. (i) 2.2.5: On 21st February 2024, Mr. Robert Blackman communicated with the Claimant via WhatsApp, falsely accusing her of refusing to cooperate with an occupational health appointment[182]Having regard to our findings above, we are satisfied that there are no facts from which an inference could be drawn that the treatment of the Claimant had anything to do with her sex or age. In any event we are satisfied that it had nothing to do with age or sex Nor was it to do with pressuring the Claimant to return to work. Indeed the initial request for an occupational health assessment was with a view to being able to assess and obtain recommendations as to the Claimant’s situation, including any help that could be provided, and of itself would have been a safeguard against pressuring her to return prematurely. (ii) 2.2.3: On 26th February 2024, Mr. Robert Blackman requested details of the Claimant's medication via a WhatsApp call[183]Again, having regards to our findings above, there are no facts from which an inference can be drawn that this had anything to do with the Claimant’s age or sex. (iii) 2.2.6: From 26th February 2024 onwards, Mr. Robert Blackman ceased written communication with the Claimant, opting instead for telephone calls until her resignation[184]Again the same applies. Having regard to our findings above, there are no facts from an inference can be drawn that this had anything to do with the Claimant’s age or sex. (iv) 2.2.3: On 7th March 2024, Mr. Robert Blackman informed the Claimant that she would be required to provide weekly medical certificates. Despite the Claimant possessing a medical certificate covering her period of unfitness for work until the end of March 2024/ 2.2.4: Mr. Robert Blackman telephoned the Claimant on 7th March 2024 and threatened to withhold her pay.[185]We have carefully considered whether the treatment of the Claimant in this meeting was influenced by the view that the Claimant had no intention of returning and if so whether that view was influenced by the Claimant’s age or sex, or more specifically in the first instance whether there are facts from which in the absence of an explanation it could be inferred that was the case.[186]We were concerned in particular by Mr Blackman’s evidence in relation to his thinking that the Claimant might not return, and his reference to relying on “gut feel” in this respect. The reference to gut feel by its nature has the potential to bring in the risk of conscious or unconscious bias. It is important however to have regard to his evidence in the round in relation to his “gut feel” comment. It was said in the context that his experience in the past at Royal Mail had been that staff who had been absent for that length of sickness absence did not come back. We also accept that he did not know that the Claimant was post-retirement and did not know her age (subject only to what could be surmised from having met her briefly once).[187]Nor do we consider that there is a basis for inferring that the treatment in the 7 March meeting was due to sex or age (in the absence of explanation). The driver for adopting the position that there needed to be weekly certificates, and stating that pay would be withheld if not, was the failure to keep in contact for more than seven days, and likely being guided within the sick call to do so. It is possible that the insistence on that approach, without further investigation or explanation beyond referring to the policy despite the issues raised by the Claimant, was influenced to some extent by scepticism as to whether the Claimant intended to return. However:187.1 for the reason noted at paragraph 186 above we do not consider that there are facts from which it can be inferred that this was influenced by the Claimant’s age, and187.2 it is more likely that it was the result of not having had experience in dealing with cases of sickness whilst abroad, a false understanding that there was no flexibility in the need to apply the sickness policy, and a failure to think through the possibility of raising the issue with HR and Mr Ferguson, in relation to none of which is there any basis for inferring that this had anything to with sex or age.[188]Further, whilst the apparent lack of concern for the difficulties that the Claimant said would be caused may indeed have given the Claimant the impression of placing unreasonable pressure upon her, that was not the intention. Conclusion as to discrimination and harassment[189]Standing back, whether taken individually or collectively, we do not consider that the steps taken were with a view to pressuring the Claimant to return to work, and nor do we consider that there are any facts from which it could be inferred in the absence of explanation that the Respondent’s conduct was influenced by or related to sex or age. Continuing act and just and equitable extension[190]In the light of our conclusions above the issues relating to time limits for a discrimination or harassment claim do not arise. We therefore deal only briefly with the time limit issues relating to July 2023. Had we found that the discrimination or harassment claim in relation to that period were wellfounded, we would have concluded that it was time-barred. There was no continuing state of affairs of discrimination connecting events of July 2023 and 2024, and the discrete actions of Mr Kirton and Mr Blackman. Further the balance of prejudice would have been firmly against extending time, even if there had been a good reason for the delay, given the difficulty caused in recalling events as far back as July 2023. We have rejected the Claimant’s assertion as to collective amnesia affecting the Respondent’s witnesses. All witnesses faced the difficulty of seeking to recall events from long ago, including notably Mr Bogle who had no recollection of the meeting on 22 July 2023. Conclusions and considerations relevant to the remedy hearing[191]Accordingly the claim of unfair dismissal succeeds, and the claims of discrimination and harassment fail. We comment further below in relation to the remedies issues in relation to unfair dismissal.[192]First, we indicated that we would consider arguments in relation to the chance that the Claimant would have been dismissed or left her employment in any event. Having regard to our finding at paragraph 64 above, we reject the contention that the Claimant always intended not to return. However we are conscious that there are arguments that may arise from the basis on which the Claimant’s claim has been upheld, focussed on the treatment in the 7 March 2024 meeting, as to the chance that, had that not occurred the Claimant would have left in any event, having regard to her unhappiness in relation to other matters. Given that the parties have not had the chance to make submissions in the light of those findings, we consider that the appropriate course is to allow them to be raised in the remedy hearing.[193]Second, in closing submissions Mr Asiedu-Berchie noted that he recognised there could be an issue as to contribution in relation to whether the Claimant could have obtained weekly certificates without travelling into the city, or could have explored that further. Issues of contributory fault would involve consideration of whether there was blameworthy conduct and a causal link between the conduct and dismissal. It is appropriate that the parties have the opportunity, if they see fit, to address any arguments as to this at the remedies hearing in the light of our findings. That would need to take on board our findings that the Claimant’s explanation in the call on 7 March as to the difficulties she faced in obtaining weekly certificates reflected her genuine view, and that the response objectively conveyed a lack of empathy or concern for the Claimant.[194]Third, whilst we note that the Claimant’s schedule of loss is framed on the basis of claiming compensation only, strictly, the Claimant is not required to make an election in that respect prior to the determination that the unfair dismissal claim is well-founded. Before making the election the tribunal is required to explain to the Claimant what re-employment orders may be made by the tribunal under s.113 ERA and the circumstances in which they may be made. In summary therefore I record that the orders that can be made are either for:194.1 Reinstatement, which entails treating the Claimant in all respects as if she had not been dismissed including making good backpay subject to credit for mitigation; and194.2 Re-engagement which involved re-employment of the Claimant by the Respondent (or a successor or associated employer) in comparable employment or other suitable employment in terms to be specified including as to pay and back pay.[195]In considering whether to make a re-employment order if sought the tribunal will primarily consider whether it is practicable for the Respondent to comply, and also whether it would be just to make the order where the employee’s conduct contributed to the dismissal to some extent.[196]Once those matters have been explained the Tribunal is required to ask the Claimant whether she wishes it to make an order for reinstatement or reengagement (or whether her position continues to be that she seeks compensation only).[197]Having set out that explanation we will give directions requiring the Claimant to confirm whether she seeks reinstatement, re-engagement or compensation only.[198]We will also direct the provision of an updated schedule of loss which will need adjustment to reflection that the only remaining claim is for unfair dismissal, which cannot include a claim for injury to feelings. We also note, in case it assists the parties in settlement discussions, that the Claimant’s schedule of loss appears to proceed on the misapprehension that the statutory cap is £105,707, whereas it is the lower of that figure and 52 weeks’ pay (including pension contributions) (s.124(1ZA) ERA). The sum included in the Claimant’s schedule of loss for her compensatory award is, on the basis of her own figures, far in excess of 52 weeks’ pay. The statutory cap is however only to be imposed after any other reductions, such as for the chance of termination of employment in any event and failure to mitigate, have been made. Approved by: