Miss L May v London North West University Healthcare NHS Trust: 3305349/2023 and 3305363/2024

EMPLOYMENT TRIBUNALS

Case No 3305349/2023, 3305363/2024

Between

Miss L MayClaimant

London North West University Healthcare NHS TrustRespondent

Before

Employment Judge George

Date 30 October 2025

JUDGMENT

[1]The respondent’s application for orders striking out particular complaints under rule 38 Employment Tribunal Procedural Rules 2024 is dismissed. Approved by: JUDGMENT

[2]The complaint of discrimination for a reason arising in consequence of disability contrary to s.15 Equality Act 2010 is struck out.

REASONS

[1]The claimant was ordered to pay a deposit of £250 following a preliminary hearing held on 18 March 2025. The Order was sent to the claimant on 30 April 2025. The claimant has failed to pay this deposit. The complaint of discrimination for a reason arising in consequence of disability contrary to s.15 Equality Act 2010 is therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.

[2]The remaining complaints proceed to a hearing. Approved by

[1]In claim forms presented on the 14 May 2023 and 23 May 2024, the claimant made complaints of disability discrimination, harassment related to disability, unfair dismissal and breach of contract. The respondent defends the claims.

[2]The claimant gave evidence in support of her own case and was supported by Mrs Michelle Cooper. The respondent relied on the evidence of Mr Mohammed Jaleel, Miss Meenaxi Patel Mrs Gail Poonawala, Mrs Vanessa Francis, Mrs Tracy Connage, Mrs Deborah McGrath and Mr James Kelly. The witnesses all produced statements taken as their evidence in chief. The Tribunal was also provided with a trial bundle containing 1124 pages of documents and an additional bundle of 70 pages. Page 1 of 23

[3]The issues that the Tribunal has had to determine in this case arising from the two claims were set out in an agreed list of issues dated 12 February 2025.

[4]The claimant has suffered from anxiety and depression since the 1990s. At all relevant times the claimant’s line manager was aware that the claimant suffered from anxiety and depression.

Background

[5]On 1 August 2022, the claimant commenced a period of sickness absence due to “anxiety disorder”. The claimant was initially signed off sick from 1 August 2022 to 16 September 2022, it was to turn out that the claimant never returned to work before her dismissal.

[6]The respondent has a long term sickness absence procedure that defines long term absence as a “continuous period of four calendar weeks or more continuous absence from work”. The procedure provides that as soon as it becomes apparent that sickness absence may be for four weeks or more, the manager should seek advice from Occupational Health (OH) and arrange to meet with the employee. The procedure provides that the manager should maintain contact with the employee by a means that has been agreed between them and there should take place sickness absence review meetings.

[7]The claimant’s line manager, Mr Mir, referred her to OH in October 2022 and the claimant had her first OH appointment 25 October 2022. A second OH appointment took place on 21 November 2022 when it was recommended that the claimant visit her place of work to see if she “could physically get through the door”.

[8]The claimant contacted Mr Mir to arrange what she describes as an “informal” visit to the workplace for 5 December 2022. At the meeting on 5 December 2022, the claimant discussed how she was feeling and the claimant remembers asking if the respondent was offering voluntary redundancy. At the end of the meeting the claimant describes being given a letter.

[9]Mr Mir and the claimant’s evidence, in respect of this meeting, is similar but not the same. Mr Mir gives significantly different evidence from the claimant when he says that he explained that the meeting was a “formal meeting as per the sickness absence policy” and that during the meeting they discussed both ill health retirement and redundancy. The claimant denies both of these statements.

[10]Under the long term sickness absence procedure the manager is required to write to the employee to propose a date and time to meet. The employee is to be given seven days notice and is entitled to be accompanied by a Page 2 of 23 trade union representative or workplace colleague. We are satisfied that this didn't happen.

[11]In his evidence, when asked if he had written to the claimant to tell her the meeting on 5 December 2022 was a formal meeting or if he had told her she was entitled to representation, Mr Mir stated that he didn't remember.

[12]Mr Mir did remember that at the end of the meeting he gave the claimant a copy of the letter dated 28 November 2022 in a sealed envelope. When asked why he had given the claimant a letter giving the claimant information about attending a meeting that had already taken place he stated that he did not remember.

[13]The Tribunal concludes that the meeting of 5 December 2022 took place at the instigation of the claimant and it was not expressed by Mr Mir to be a formal long term sickness absence review meeting (LTSARM). Mr Mir did not send the claimant a letter inviting her to attend the meeting. The letter dated 28 November 2025 was given to the claimant at the conclusion of the meeting in the way described by the claimant.

[14]The first time that the claimant became aware that the meeting on 5 December 2022 was supposed to be a LTSARM was on 16 December 2022 when she opened the sealed envelope containing the letter that Mr Mir had handed to the claimant at the end of the meeting on 5 December 2022.

[15]Mr Mir sent claimant a further letter which was dated 13 December 2022, on the balance of probability this letter was actually written after 16 December 2022. The letter contained the statement that the claimant had been told at the meeting on 5 December 2022 that her “case would move to final formal review meeting stage under the long term sickness absence process". This was wrong, it is not what happened at the meeting on 5 December and if it had been what occurred it would have been the wrong way to proceed in any event. Mr Mir accepted in his evidence to the Tribunal that sending this letter to the claimant was an error.

[16]A meeting was scheduled to take place on 9 January 2023 under the long term sickness absence process but it didn't take place.

[17]The claimant made a grievance, on 8 February 2023, it was about the behaviour of Mr Mir in the meeting on 5 December 2022 and the correspondence he sent to her. The claimant was contacted by Miss Patel who wanted to deal with the grievance informally. The claimant was clear that she wanted it dealt with formally. The claimant also asked for “a friend or family member to represent her” during the grievance.

[18]Around 23 February 2023 Mrs Vanessa Francis took over the management of the claimant’s sickness absence from Mr Mir. Page 3 of 23

[19]On 8 March 2023 Mrs Francis contacted the claimant to ask her if she was intending to attend the sickness absence review meeting that Mrs Francis believed was scheduled for that day. The claimant was unaware of such a meeting having been scheduled. The meeting did not take place and Mrs Francis sent the claimant a letter inviting the claimant to another meeting on 22 March 2023.

[20]On 20 March 2023 the claimant was informed that Mrs Poonawala would be dealing with her grievance.

[21]Mrs Francis invited the claimant to another meeting on 3 April 2023. The claimant informed Mrs Francis that she would not be attending any meetings under the long term sickness absence review process until her grievance had been resolved.

[22]The advice that Mrs Francis obtained from HR was that she could proceed with the meetings in the claimant's absence. The meeting on 3 April 2023 did proceed in the claimant's absence and an outcome letter was sent to the claimant on 6 April 2023.

[23]A further meeting was arranged on 10 May 2023 which again went ahead without the claimant’s attendance.

[24]On 14 May 2023 the claimant presented a complaint to the employment tribunal.

[25]Mrs Poonawala invited the claimant to attend a grievance meeting. The claimant notified Mrs Poonawala that she would like to add some other matters to her grievance. The grievance meeting was eventually arranged for the 16 May 2023.

[26]The claimant attended the grievance meeting accompanied by Mrs Michelle Cooper. Mrs Poonawala was assisted by Mrs Caroline Byrne from HR. During the grievance meeting the claimant asked that the LTSARM’s to be stopped while the grievance was being conducted. Mrs Poonawala agreed to this.

[27]The agreement to stop the LTSARM’s did not immediately get to Mrs Francis as the claimant received an invitation to attend a LTSARM on 7 June 2023 from Mrs Francis. The meeting did not take place once Mrs Francis was informed that the claimant had made a grievance against her and that it had been agreed the LTSARM was to stop until after the grievance was resolved.

[28]Mrs Poonawala carried out her grievance investigation and informed the claimant of her outcome in a e-mail letter to the claimant on 25 July 2023. The claimant had expected a further meeting with Mrs Poonawala where they would “consider all the evidence” gathered in the investigation. The Page 4 of 23 claimant had understood this to be something that had been promised to her by Mrs Poonawala at the grievance meeting on 16 May 2023.

[29]Mrs Poonawala did not uphold the claimant's complaint of disability discrimination. Mrs Poonawala explains that after she had a 2 hour meeting with the claimant, she received answers to questions posed to Miss Patel and Mrs Francis, then she met with Mr Mir on 4 July 2023. With this information she then proceeded to draft her grievance outcome letter to the claimant. In her conclusion Mrs Poonawala stated that the respondent’s HEART1 values were “never knowingly not upheld” and the staff had no intention of causing the claimant harm. Mrs Poonawala further stated that while procedural processes were not followed correctly, she could not confirm that unlawful discrimination had taken place.

[30]The claimant appealed the grievance outcome.

[31]The claimant was invited to a LTSARM on 14 August 2023. The claimant reaffirmed her position that she was not going to attend the meeting until her grievances were resolved and at that time her grievance remained unresolved because of the outstanding appeal.

[32]The LTSARM took place on 14 August 2023 in the claimant's absence.

[33]The claimant was notified of the outcome of the meeting. The claimant was informed that a final sickness review panel meeting was to be arranged and that a potential outcome of the meeting was the claimant's dismissal.

[34]The final sickness reviewed panel meeting was scheduled to take place on 28 September 2023. The claimant was informed that she could be accompanied at the meeting by a Trade Union Representative or a work colleague “not acting in a legal capacity”. The claimant was informed that dismissal was a possible outcome and that if she did not attend, the meeting could go ahead in her absence and the decision, including dismissal, could be made. The claimant was also told that she could submit written representations.

[35]The meeting that had been scheduled for 28 September 2023 was postponed.

[36]The claimant’s grievance appeal meeting took place on 26 September 2023 with Mrs Tracy Connage who was supported by Miss Catriona Benson.

[37]A second grievance appeal meeting took place on 2 November 2023. The claimant found the meeting upsetting and unsettling because of how she 1 Honesty, Equity, Accountability, Respect, Teamwork Page 5 of 23 perceived its handling by Mrs Connage, “it was not the serious and well managed grievance appeal... promised … [it] was not conducted observing the Trust’s stated HEART values”. In the appeal meeting on 2 November 2023 the claimant recalls that Mrs Connage stated that the sickness absence process needs to restart.

[38]The appeal outcome letter 2 November 2023 was handed to the claimant at the meeting. The grievance appeal outcome included the following: Your grievance complaint stems from the failure of your line manager to properly inform you of the plan to initiate formal procedures in relation to your long-term sickness absence. This serious management failure is accepted and the resulting distress has been acknowledged. In view of the appeal, despite the largely positive outcome of your grievance, your appeal has highlighted a continuing breakdown in your trust and confidence in the subsequent management of your grievance claim and sickness absence process. The panel made the following recommendations:• recommend that meetings are reconvened in person if this undertaken is given

• the grievance outcome rightly recognises that the culpability of your line management in the initiation of the sickness absence procedures.

• that mediation is a potentially appropriate method of seeking resolution in situations of a serious breakdown in relationships. However, mediation is only a potential remedy if parties are willing to engage.

• the management failings acknowledged in the grievance outcome need to be addressed under Trust procedures; and,

• that the sickness absence procedures now need to be progressed supportively and with sensitivity given the earlier flaws in the application of the policy.

[39]The claimant was invited to a final formal review meeting on 15 November 2023, the claimant attended and a number of actions were agreed to take place before the meeting was to reconvene in December 2023: “Vanessa (Mrs Francis) to make a referral to OH to explore medical redeployment/ill health retirement or other adjustments; Lynne (The claimant) to send a copies of the different Sickness Absence Policies that was sent by the Trust during the management of her sickness absence; Lynne to send the copies of the last three Occupational Health reports that we have so far been unable to see; Lynne to provide an update on the outcome of her GP appointment next week; Panel to reconvene at a later time to make a decision.”

[40]The final formal review meeting reconvened on 14 December 2023. The claimant was unable to attend on that date so this meeting was cancelled and rearranged to take place on 20 December 2023. At the meeting on the 20 December 2023 the claimant was not in attendance. The decision was made to dismiss the claimant. Page 6 of 23

[41]The claimant was informed of the outcome of the final formal review meeting in a letter dated 22 December 2023. The claimant’s employment was terminated on the basis of capability due to ill health.

[42]The claimant appealed the decision to dismiss her. The dismissal appeal hearing was scheduled for the 6 March 2024. The appeal hearing took place on that date and the claimant received an appeal outcome on 22 March 2022. The claimant’s appeal was not upheld. Unfair dismissal

[43]The claimant has the right not to be unfairly dismissed (section 94 Employment Rights act 1996 (ERA). Section 98 (1) ERA provides that in determining whether the dismissal of an employee was fair or unfair, it shall be for the employer to show (a) the reason (or, if there was more than one, the principal reason) for the dismissal, and (b) that it is a reason falling within subsection (2). A reason falls within this subsection if it relates to the capability or qualifications of the employee for performing work of the kind which she was employed by the employer to do. Capability, in relation to an employee, means her capacity assessed by reference to skill, aptitude, health or any other physical or mental quality.

[44]Section 98 (4) ERA provides that where an employer has shown a potentially fair reason, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.

[45]The Tribunal must not substitute its views about the employee's capacity for that of the employer. The test as set out in Alidair Ltd v. Taylor

[1978] ICR 451

, is: "Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent." The function of the Tribunal is to decide whether the employer honestly and reasonably held the belief that the employee was not capable and whether there was a reasonable ground for that belief.

[46]The questions to consider will include whether, in all the circumstances, the employer can be expected to wait any longer before dismissing, and if so, for how much longer. The employer should find out about the current medical position. Once the employer has informed itself of the medical position and prognosis, the employer should consider the requirements of the business, the employee’s past sickness record, and whether the Page 7 of 23 employee could be offered an alternative position more suitable to his state of health. The employer should seek to consult with the employee before dismissing her. It is a relevant but not a determinative factor that the employer may have been responsible for causing the illness. Disability

[47]The respondent concedes that the claimant was a disabled person within the meaning of section 6 Equality Act 2010 by reason of Anxiety and Depression. The respondent concedes that it knew of the claimant’s disability on 1 August 2023. Direct disability discrimination

[48]Section 13 Equality Act 2010 provides that an employer must not discriminate against an employee by dismissing her or subjecting her to any other detriment. An employer discriminates against an employee if because of her disability they treat the employee less favourably than they treat or would treat others. Disability within the meaning of section 6 Equality Act 2010 is a protected characteristic Where the employee seeks to compare his treatment with that of another employee there must be no material difference between the circumstances relating to each case.

[49]Section 136 of the Equality Act 2010 provides that if there are facts from which a Tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Tribunal must hold that the contravention occurred. This does not apply if (A) shows that A did not contravene the provision. Guidance is given in Madarassy v Nomura International

[2007] ICR 867

. “56. …The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. "Could conclude" [in section 136 (2)] must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of … discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.” Discrimination arising from disability

[50]Section 15 Equality Act 2010 provides that a person(a) (A) discriminates against a disabled person

(b) (B) if (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. Page 8 of 23 Failing to make reasonable adjustments

[51]Section 20 Equality Act 2010 set out the duty to make adjustments. As relevant in this case the duty comprises of the requirement, where a provision, criterion or practice of an employer’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[52]A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. An employer discriminates against a disabled person if the employer fails to comply with that duty in relation to that person. Conclusions Direct disability discrimination Mr Mir handing a letter to the Claimant at an informal meeting on 5 December 2022 which was dated 28 November which purported to set up a retrospectively formal long term sickness absence review meeting. The meeting on 5 December 2022 was an informal chat which Mr Jimmy Mir (Assistant General Manager) stated after the fact was formal sickness absence meeting.

Conclusions

[53]This was not less favourable treatment. Mr Mir was acting informally because of his relationship with the claimant. Mr Mir did not intend to disadvantage the claimant. If the claimant was in fact treated less favourably, the treatment of the claimant was not because of disability it was because of his relationship with the claimant, Mr Mir thought he was acting benignly and in her interests in what he did. The claimant was denied her right to representation at the meeting on 5 December 2022.

[54]The meeting was not set up as a LTSARM, it was presented by Mr Mir as an informal meeting and only took place when it did because of the claimant’s actions in contacting Mr Mir. If the meeting had been announced as a LTSARM by Mr Mir it would have been treated differently by the claimant. She was treated less favourably by reason of Mr Mir’s actions. The reason for his actions was his relationship with the claimant and his desire to be informal with his friend. The claimant was sent a letter by Mr Mir which incorrectly explained the sickness absence process which had taken place so far and indicating that the next stage may result in dismissal.

[55]The clamant was sent the incorrect letter by Mr Mir because of his incompetent handling of her sickness absence review process. The Page 9 of 23 claimant was not treated less favourably because of her disability. The letter was sent in error, not because of the claimant’s disability. From 8 February 2023, Ms Meena Patel failed/refused to address the claimant’s formal written grievance which she had submitted to her in accordance with he respondent’s grievance procedure and instead tried to resolve it informally and to persuade the claimant to do the same.

[56]Ms Patel wanted to address the complaint informally because that is usually expected to occur in the first instance. She did not adopt this approach because of the claimant’s disability. In February 2023 Ms Patel appointed Mrs Francis as the claimant’s line manager without informing the claimant and instructed her to pursue the claimant under the Sickness Absence Policy before investigating her grievance.

[57]Mrs Francis was not appointed as the claimant’s line manager. She was appointed to manage the claimant’s sickness absence process. This was done because the claimant complained about Mr Mir and someone needed to do it. With effect from 8 March 2023 until October 2023, Vanessa Francis contacted the claimant inviting her to further sickness absence review meetings before her grievance was resolved, despite the fact that the subject of the claimant’s grievance was that no valid or appropriate sickness absence process had thus taken place.

[58]Mrs Francis took advice from HR and was told that she could continue with the LTSARM despite the claimant’s grievance. She continued to do so until there was an agreement between the claimant and Mrs Poonawala that the LTSARM would stop pending the outcome of the claimant’s grievance. From 8 March 2023 Mrs Francis pursued the claimant under a different Sickness Absence Policy.

[59]Mrs Francis did not pursue the claimant under a different sickness absence policy there was only the one policy. The policy was subject to review which resulted in amendments being made from time to time. Mrs Francis failed to respond fully to any correspondence sent by the claimant.

[60]The claimant wrote to Mrs Francis on 9 August 2023 and her letter was answered by Mrs Francis in her letter of the 14 August. The letter provides an answer to the questions asked by the claimant. The Tribunal does not consider that it has been shown that there was a failure by Mrs Francis to respond fully to correspondence. Page 10 of 23 The respondent delayed in dealing with the claimant’s grievance under its grievance procedures, appropriately or at all until 24 April 2024 (when it invited the claimant to a grievance investigation meeting).

[61]There was action on the claimant’s grievance.

[62]The claimant made her grievance on 8 February 2023 and it was acknowledged the same day. On 10 February 2023, Ms Patel said that she would like to deal with it informally and the claimant said that she had not been able to provide appendices to support her grievance. On 13 February 2023 the claimant said she did not want to attend an informal process. On 14 February Ms Patel explained that she was seeking HR advice, and emailed the claimant on 21 February 2023 to confirm that the claimant could be accompanied at the meeting but the person would not be allowed to participate in the meeting but could be there for moral support. 24 February 2023 the claimant sent appendices, which is acknowledge on 27 February 2023. 2 March 2023 Ms Patel says that she would like to resolve the grievance informally, to which the claimant replies on 5 March 2023 saying that she had already tried to resolve it informally. On 20 March 2023 claimant informed that Mrs Poonawala would be leading the formal grievance investigation and the claimant was asked for her consent to release the grievance documentation to her.

[63]There is then an exchange of correspondence by email between the claimant and Ms Patel that leads to the claimant wanting to invoke section 13.7 of the grievance policy to escalate it for a final stage, part of the complaint being made by the claimant was that she had not given her consent for the grievance to be shared with Mrs Poonawala. There was further correspondence about the grievance process between the claimant and Mrs Poonawala, the claimant was unhappy about the appointment of Mrs Poonawala to deal with her grievance and stated that by 6 Aprill 2023 it had been 58 days since the grievance was raised and it had not been heard. On 11 April 2023 the claimant was invited to attended a grievance meeting on 18 April 2023 and given 7 days notice. On 14 April 2023 the claimant emailed to confirm “out of courtesy” that she had emailed HR to explain why it was not appropriate for her to attend the formal grievance meeting she had been invited to on 18 April 2023. The claimant was invited to attend a formal meeting on 1 May 2023 by Mrs Poonawala. On 16 May 2023 Mrs Poonawala met the claimant for a grievance meeting and the notes produced in June 2023 misrepresented the facts presented and adapted subsequent notes to skew reality and obscure the truth. At the same meeting (16 May 2023) Mrs Poonawala acknowledged the catastrophic impacts Mr Mirs actions had on the claimant’s mental health but then offered no comment in her grievance outcome letter dated 24 July 2023. Page 11 of 23

[64]The claimant was provided with a copy of the minutes of what was discussed at a grievance meeting held on 16 May 2023. The claimant was invited by Mrs Poonawala to contact her if there was anything that she disagreed with or needed clarification on. The document provided was not intended as a verbatim transcript of what was said, as the claimant pointed out “A 2.5-hour grievance meeting had been condensed into six A4 pages of notes.” The claimant states that “salient parts of the discussion were not included. And the notes were skewed in favour of the Trust, down-played and generalised the specific points Michelle Cooper had raised”. One of the issues that the claimant refers to is mention of the “catastrophic impact Jimmy Mir’s actions have had upon [the claimant’s] mental health?” The claimant and Mrs Cooper insist that Mrs Poonawala said Yes but this was absent from the notes and when asked about it during the grievance appeal Mrs Poonawala said she “could not remember.” We note that in relation to this point that Mrs Poonawala said: “I was aware that the claimant affected by the grievance process but the word catastrophic I do not accept that I used. I was aware how the impact of whole grievance affected Mrs May, she was tearful through out the meeting:”

[65]The Tribunal accept the evidence of Mrs Poonawala on this point.

[66]The Tribunal has not been able to understand how beyond this the claimant asserts that the notes were not an accurate reflection of the meeting and there does not appear to have been an issue with the notes until about 31 July 2023 when the claimant had been in possession of the notes since the 28 June 2023. While there is a clear dispute between the claimant and Mrs Poonawala over the notes we do not consider that Mrs Poonawala has misrepresented the facts or presented a skewed reality. Mrs Poonawala failed to send the claimant a document which would have corroborated her assertions about the unlawful treatment by Mr Mir.

[67]During the grievance meeting the claimant and Mrs Poonawala discussed the meeting on 5 December 2022 and the letter of the 28 November 2022. Mrs Poonawala and the claimant had a hard copy of the letter during the meeting. The claimant had requested a digital copy of the letter so that she could see the meta data for the letter of 28 November 2022. The respondent’s evidence is that the electronic copy of the letter could not be found despite searches having been made by HR. This absence is not significant, we are satisfied that had the digital copy of the letter been found it would more likely than not have shown that the letter of 28 November 2022 was created after that date but before the 5 December 2022. Mrs Poonawala failed to investigate and address the consent process by Mr Mir when referring the claimant to Occupational Health without the claimant’s informed consent. Page 12 of 23

[68]Mrs Poonawala stated that she did investigate the question whether Mr Mir had obtained consent for referring the claimant to Occupational Health. Mrs Poonawala stated that the only consent required was an oral authorisation to make the referral. The notes of the grievance meeting show that the topic of consent to Occupational Health was touched upon in the meeting with the claimant and in the grievance outcome letter Mrs Poonawala points out that Mr Mir believed that the claimant never objected to the Occupational Health referral and that he had notified the claimant by text on the 26 September 2022, that a referral to Occupational Health had been made and the claimant responded saying that a referral would be helpful. The conclusion of the Tribunal is that it is not correct that Mrs Poonawala failed to investigate and address the consent process by Mr Mir when referring the claimant to Occupational Health. Mrs Poonawala failed to investigate and address the claimant’s complaints against Mr Mir, Ms Patel and Mrs Francis.

[69]Mrs Poonawala states that she did investigate and we accept that she did, this is evident from the content of the grievance outcome letter and the fact that she interviewed or posed questions for all the people mentioned in the claimant’s criticism. We consider a more accurate way of reflecting on the position is that the claimant was not happy with the conclusions that Mrs Poonawala reached in her investigations. She was served notice retrospectively. The claimant submits she was served notice on 30 December 203 and her last day of service was given as 20 December 2023.

[70]The claimant was sent a letter setting out the outcome of the final formal meeting which contained her dismissal as an attachment to an email on 22 December 2023 and she read it on 22 December 2023. The claimant was told that she would be dismissed from her employment with the respondent. The letter contained the following passage: “You will receive payment in lieu of your notice effective from 20 December 2023. You will be paid for any outstanding annual leave you have accrued in accordance with statutory leave entitlement. Therefore, your last date of employment with the Trust is 20 December 2023.” It is not clear what if any detriment that the claimant is alleging beyond the dismissal, we conclude that other than dismissal, there was no detriment to the claimant. The claimant applied for a long service award which the respondent failed to action.

[71]The evidence on this point was given by Mrs Connage who explained that “the claimant received an email from Amy Sellu (Wellbeing and Engagement Team) stating that she might be eligible for a long service award. “My understanding is that once the Confirmation of Service Length form has been completed by the individual, if they are eligible they are Page 13 of 23 then contacted to confirm the same. Therefore, if Ms May was never contacted about this then I would conclude she was not eligible for the award.” There is no evidence that the claimant’s disability was in any sense part of the reason why there was no long service award actioned for the claimant. Mrs Connage failed to respondent to a letter the claimant wrote on 8 September about the restoration of her sick pay.

[72]The claimant sent a letter dated 8 September 2023 to Mrs Connage enquiring about her pay and mentioning that no final review meeting had taken place. Mrs Connage could not recall receiving the letter, the claimant is correct when she says that Mrs Connage did not reply to her. However, Mrs Connage was not dealing with anything relating to the claimant’s sickness absence and she does not deal with pay. We accept Mrs Connage’s evidence that if she did receive the letter she would have forwarded it to the payroll team for them to deal with. We note in any event that the claimant’s request for the reinstatement of sick pay was granted. There is no detriment to the claimant. Mrs Connage failed to provide a copy of the meeting notes despite several written requests.

[73]This allegation is not made out on the evidence. There does not appear to be any request for meeting notes, there was a written request for “a copy of the recording of the appeal meeting held on 26 September 2023.” Mrs Connage in any event states that she was not aware that the respondent “would normally share meeting minutes as the outcome letter was very detailed.” Mrs Connage controlled the meeting restricting the second grievance appeal meeting that took place on 2 November 2023 to be conducted within an hour and disrespected confidentiality by permitting her secretary to enter the room twice and informed the claimant and her representative that they were not to talk with the allotted hour. During the same meeting Mrs Connage reading aloud from a letter which related matters outside my grievance and served to humiliate, intimidate ad offend the claimant.

[74]Mrs Connage denies the allegation that she controlled the meeting by restricting the meeting to take place within an hour. The meeting on 2 November 2023 was to provide the claimant with the outcome, it was not a second grievance appeal meeting to deal with any further appeal points. Mrs Connage refutes the allegation that she told the claimant and her representative that they could not talk. She states that she cannot recall whether her secretary entered the room but if she did the meeting would have paused for whatever interaction she had with the secretary. Page 14 of 23

[75]There is a conflict in the evidence of the claimant and that of Mrs Connage, we note that both the claimant and Mrs Cooper agree. However, the following evidence in our view puts a different gloss on the apparent dispute between the parties, Mrs Connage said at the start of the meeting: “I have allocated an hour for the meeting. I will be reading aloud from a letter (which she held in her hands). Don’t interject whilst I’m reading the letter. This is the outcome of your grievance.” The purpose of the meeting was for Mrs Connage to give the claimant the outcome of her grievance.

[76]We do not consider it likely that there would have been a breach of confidentiality in the way the meeting was conducted. Mrs Connage read out the decision letter, she would have stopped reading in order to interact with her secretary, when we considered the content of the letter produced to us we did not consider that it served to humiliate, intimidate or offend the claimant. Eight months after the claimant lodged her grievance, aspects of it still remained unaddressed including the complaints of disability discrimination about Mrs Patel and Mrs Francis as well as the status of 5 December 2022 meeting.

[77]In the grievance complaint against Ms Patel the claimant claimed that Ms Patel’s initial attempt to informally resolve her complaint against her line manager Mr Mir was inappropriate. This was addressed by Mrs Connage who stated that informal resolution is the preferred route for addressing and resolving grievances. The fact that the claimant submitted a formal grievance did not mean that Ms Patel should not still try to resolve matters informally. Mrs Connage did not find any evidence of any ill-intent by Ms Patel and did not uphold this point. It is evident from the outcome decisions that the claimant’s allegations were responded to and addressed in the grievance and grievance appeal. In respect of the grievance complaint against Mrs Francis the claimant objected to the sickness absence procedure being administered in parallel to the grievance procedure. Mrs Connage concluded that there was no evidence of inappropriate behaviour by Ms Francis who was properly assigned to progress the sickness absence management. We note that initial advice to Ms Francis was the grievance and sickness absence procedure could proceed in parallel.

[78]We consider that what the claimant’s case amounts to in respect of this issue is that she does not agree with the outcome. Mrs Connage stated verbally that there was no clear evidence of Mr Mir discriminating against the claimant.

[79]Mrs Connage concluded that the grievance findings were that Mr Mir failed to follow the sickness absence procedure on 5 December 2022. However, in her view there was no evidence that he discriminated against the claimant on the basis of her disability. Mrs Connage found “that he inappropriately managed the situation due to a shared awareness of each Page 15 of 23 other’s mental health issues and the long-standing positive relationship that he believed he had with [the claimant]”. At the end of the second grievance appeal meeting Mrs Connage handed the claimant a sealed envelope containing a letter which she led the claimant to believe was a copy of the same letter she had read aloud from which mirrored Mr Mir’s actions on 5 December 2023.

[80]Mrs Connage met with the claimant and provided her with the grievance appeal outcome by reading from the outcome letter and then giving her a copy of the letter. There is no evidence that a different letter was read out to the claimant at the meeting. The situation differs from Mr Mir’s situation on 5 December 2022 because the letter of 28 November 2022 purported to arrange a meeting under the LTSARM process on 5 December 2022. This is not what happened, the claimant did not know that Mr Mir considered the meeting to be a formal meeting under the LTSARM process at all until she read the letter days after the meeting itself had taken place. Failing to address the claimant’s requests to be considered under its injury allowance scheme.

[81]Mrs Connage explained to the claimant in the grievance appeal outcome that it is was not within the remit or competence of the hearing manager or the appeal panel to assess any industrial injury complaint that the claimant had put forward. There was no less favourable treatment of the claimant in this regard.

[82]The conclusion of the Tribunal is that the claimant has not shown that she was treated less favourably because of disability. Where there are examples of the claimant being treated less favourably the respondent has given an explanation for the treatment relied upon by the claimant which the Tribunal accept was not because of the claimant’s disability.

[83]There are instances where the claimant has demonstrated different treatment this has in our view tended to show that the claimant was treated more favourably than the circumstances might suggest is required, for example, the claimant was not subjected to the precise application of the long term sickness absence review procedure, if she had been, following through on timely application of the process it would appear to show that the claimant’s employment is likely to have come to an end much sooner than it in fact did.

[84]The Tribunal do not consider that the claimant has shown that she was subjected to a detriment in respect of the application of the sickness absence policy and while there have been some delay in the dealing with the grievance, such delay is largely explained, and did not in our view amount to a detriment, the claimant’s approach to the process contributed as much to the delay as the respondent. Page 16 of 23

[85]The claimant’s complaints of direct disability discrimination are not well founded and are dismissed. Disability arising from discrimination

[86]The claimant makes a complaint pursuant to section 15 Equality Act 2010. Section 15 provides that a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[87]The claimant relies on the same matters as set out in respect of direct discrimination on which we have set out our findings above. Where there was unfavourable treatment the claimant seeks to rely on section 15 also. Section 15 requires the claimant to show that the treatment was because of something arising in consequence of the claimant’s disability.

[88]The something arising in consequence of the of disability that the claimant relies on is recorded in the list of issues as “the gas lighting she experienced in the content and conduct of meetings held by the respondents.”

[89]In her witness statement the claimant says of the incident with Mr Mir on 5 December 2022 “Increasingly, my family was extremely concerned about me. I was agitated, tearful despondent and in very low mood. My brother felt Jimmy Mir was gaslighting me. I was being told by Jimmy Mir – retrospectively - that an informal chat was in fact the first formal sickness review meeting.” The claimant also complains that the behaviour of Mr Mir was assessed by Mrs Poonawala as friendly.

[90]In her closing submissions the claimant stated that: “This treatment was unfavourable because Jimmy Mir knew of the longevity and nature of my medical condition and disability, yet decided to exploit my vulnerability by gaslighting me – a form of psychological abuse. He acted unilaterally and outside of the sickness absence policy. By way of his actions, I suffered deterioration in my mental health.”

[91]The claimant’s complaint under section 15 is in our view not made out, it is in fact a complaint of direct disability discrimination rather than a complaint of discrimination arising from disability. The alleged something arising in this case, “the gaslighting she experienced” is in reality the unfavourable treatment which the claimant is saying was done to her because of her disability. The complaint under section 15 is not made out and is dismissed.

[92]When we consider the complaint that the claimant makes as one of direct discrimination, as we set out above, the claimant’s treatment by Mr Mir was intended to be favourable, he did what he did because of his friendship with her, intending to act benignly in not following the LTSARM procedures. While in acting this was Mr Mir was aware of the claimant’s disability he did not act as he did because of it he acted as he did because of his desire to be informal with his friend. Page 17 of 23

[93]The claimant’s complaints about discrimination arising from disability are not well founded and are dismissed. Failure to make reasonable adjustment

[94]The claimant relied on the respondent’s sickness absence review policy/procedure as the relevant PCP. While there was a question over whether the respondent changed the policy under which the claimant was dealt with the Tribunal conclude that the claimant was always dealt with under same policy which was from time to time subject to review but there was no relevant change to the policy during the time that the claimant was being managed under the policy.

[95]The claimant contended for three adjustments;(1) Her request for written communication by post could be met as this is likely to significant reduce her anxiety;

(2) Date of formal meetings being arranged in advance with her whenever possible; and

(3) Being allowed to bring a friend or family member to any formal appointments to represent her at meetings.

[96]All of the adjustments were to some extent granted by the respondent, the claimant can properly complain by saying that some of them were not always followed.

[97]The claimant was requiring that she be written to by post and this happened, most of the time. There were occasions when the claimant was communicating with the respondent by email in circumstances where the claimant herself had initiated the communication. The claimant has not however given any evidence to substantiate her suffering a substantial disadvantage in respect of any specific communication by email. The claimant’s evidence was that she explained that it was better for her mental health if she was communicated with by post.

[98]The dates of formal meetings were arranged in advance. The only exception is the meeting on 5 December 2022 which the claimant arranged thinking it was to be an informal meeting where the claimant was attending work to see if she could get through the door. The claimant does not allege any specific occasions when there was a failure to arrange a meeting in advance.

[99]The claimant was permitted to be accompanied by a work colleague or trade union rep and this was extended to being allowed to bring a friend or relative to support her. The advice from OH changed after a report from Dr Popat stated that the claimant should be allowed to bring a friend or family member to any formal appointments to represent her at meetings. The meetings that the claimant did attend face to face she was accompanied by Mrs Cooper who acted as her representative. Page 18 of 23

[100]The conclusion of the Tribunal is that the respondent did carry out the adjustments that the claimant was seeking but there was not a blanket compliance at all times. However, the claimant has not been able to show by adducing evidence that she suffered a substantial disadvantage as a result of any failure to make adjustment. We consider that this is likely to be because there was broadly speaking compliance with the adjustments that the claimant sought.

[101]The claimant’s complaints about breach of duty to make reasonable adjustments are not well founded and are dismissed. Harassment

[102]The claimant’s allegation of harassment is that the respondent engaged in conduct related to disability by(1) on an informal visit to the claimant’s work place on 5 December 2022 Mr Mir gaslighted the claimant by handing her a sealed envelope containing a letter and saying ‘its nothing important’;

(2) On 14 December 2022 Mr Mir text the claimant and asked her to call him. The claimant called Mr Mir who was drafting the outcome letter and asked her to confirm what was agreed in the meeting as he did not write down any notes;

(3) On 15 December 2022 the claimant text Mr Mir and wrote when I came to see you on 5 December 2022 it was an informal chat I am not sure why you need to send a follow up letter for an informal chat;

(4) On 16 December Mr Mir text the claimant and said the informal chat was supposed to be the start of managing your long term sickness. The claimant then opened the letter given to her by Mr Mir which was dated 28 November which purported to set up a retrospectively formal long term sickness absence review meeting on 5 December.

[103]Item number (3) in the paragraph above is not conduct of the putative harasser, it is conduct of the claimant.

[104]Item (1) is not alleging that it had the purpose of violating the claimant’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for the claimant. It did not have that effect at the time that it was carried out and it is only later when the claimant considers that this was an act of harassment.

[105]Item (2) occurred as the claimant describes. Mr Mir describes his actions and reasons for them as follows: “On 15 December 2022, I text Ms May asking her to give me a call as I was drafting the outcome letter from our meeting on 5 December and I just wanted to make sure I had everything that was agreed.”

[106]Item (4) is where the harm is done, the information conveyed to the claimant and the effect of reading the letter that had been handed to her on the 5 December 2022 is what converts all the events set out at (1)-(4) to be viewed by the claimant as incidents of harassment. While the cumulative conduct did not have the purpose of violating the claimant’s dignity or creating an intimidating hostile, Page 19 of 23 degrading, humiliating or offensive environment for the claimant it does appear to have had that effect.

[107]The conduct however did not relate to the claimant’s disability. As explained previously the way that Mr Mir acted was down to his relationship with the claimant, he felt that he could afford to her a more relaxed approach and he did not follow the respondent’s sickness absence review procedure. Further when we consider whether the conduct taken as whole and considering the other circumstances of the case the Tribunal do not consider that it is reasonable that for the conduct to have the effect attributed to it by the claimant. What happened here is that the claimant attended a meeting at which nothing untoward occurred, she was then asked to confirm what had been agreed and then finally became aware that her manager was treating the meeting which she had taken as an informal meeting in a different way and considered it part of the official LTSARM process. While the claimant is entitled to be disappointed by the manager, or irritated by the failure to make the position clear, we do not consider that it can properly be characterised as amounting to harassment.

[108]The claimant’s complaints of harassment are not well founded and are dismissed. Breach of contract

[109]The claimant says that there was a breach of contract by the respondent in a number of ways:(1) that her pay ceased without any explanation and she had to request to receive half pay;

(2) that she was incorrectly paid in lieu of notice which her contract does not specify;

(3) that the respondent refused to pay her accrued but untaken annual leave;

(4) that the respondent has not maintained her pension payments throughout her period of sickness absence decreasing the final year’s pensionable pay by 8.3%.

[110]There is no evidence to support the allegation that the claimant’s pay ceased in breach of contract without any explanation and she had to request to receive half pay, in fact the evidence showed that she was paid more than her contractual entitlement as a supportive measure from the respondent.

[111]The claimant has not referred to any evidence that shows she was incorrectly paid in lieu of notice.

[112]There is no evidence that the respondent refused to pay the claimant accrued but untaken annual leave.

[113]The claimant has adduced no evidence that the respondent has not maintained her pension payments throughout her period of sickness absence decreasing the final year’s pensionable pay by 8.3%. Page 20 of 23

[114]The claimant’s complaints about breach of contract are not well founded and are dismissed. Unfair dismissal/ discriminatory dismissal

[115]The claimant was dismissed on the grounds of capability due to ill health. The evidence from the respondent shows that this was the clear and only reason for dismissal. In truth the claimant has not advanced any possible alternative reasons for dismissal. The claimant was not dismissed for a discriminatory reason.

[116]The issue for the Tribunal to be concerned with is the question of fairness. Unfair dismissal

[117]In her closing submissions, the claimant says, that in reaching her dismissal decision, Mrs Deborah McGrath relied heavily upon the non-availability of the 7 December 2023 OH report and failed to consider a range of other factors. That Mrs McGrath did not follow a full and fair procedure. That Mr Damien Kelly’s decision on the dismissal appeal to uphold the decision to dismissed was unfair; that he did not did not follow a fair procedure. That the claimant did not have a chance to present her case. That her grievance appendices were excluded, and that new evidence was introduced but which the claimant was given no right of reply to it. That the claimant was threatened with an ultimatum to provide her personal email address her appeal would be withdrawn. That Mr Kelly did not consider the 7 December OH report and so did not draw any conclusions from it or take any actions which he should have done, i.e. that the claimant was well enough to return to work in a desk-based admin role, that she was fit to seek redeployment, and that he could have re-instated her temporarily in order to do so. That Mr Kelly did not critically assess the respondent’s case against the claimant but simply accepted it without question.

[118]The claimant states that Mrs McGrath knew that her grievance related to sickness absence issues, however in our view there was nothing in the outcome of the grievance, or the possible outcome, that renders the procedure followed by Mrs McGrath unfair. We do not consider that it has been shown that Mrs McGrath pre-judged the information in Mrs Francis‘ management case during the final formal meeting. The issue of consent in respect of April, July and October OH reports could not have affected the decision in circumstances where the claimant had been responsible for the OH reports not being seen by the decision maker and Mrs Francis.

[119]We do not consider that the way that the meeting on 15 November 2023 at which the claimant was present and represented by Mrs Cooper was unfair.

[120]The claimant contends that Mrs McGrath discriminated against her in 9 specified ways set out in her written submissions 4(a) to (i) we do not Page 21 of 23 consider that any of these points show any discrimination by Mrs McGrath towards the claimant.

[121]Finally the claimant sets out a number of matters which she submits the respondent should have done. The first three bullet points2 the respondent did do. It was the claimant that created the obstacle that resulted in the claimant’s OH reports not being considered. The claimant cannot rationally complain about unfairness created by her own actions. We note that the claimant did not ask for more time so that the OH report could be finalised before it was presented to Mrs McGrath. The claimant’s absence was no longer sustainable so it is wrong to say that her absence was “manageable”. The claimant’s approach towards OH reports meant that no useful purpose would have been achieved by reviewing the reasonable adjustments tracker, in any event the claimant was never fit to return to work with adjustments. It is clear that the claimant’s employment record and the fact that she had a disability was taken into account by the dismissing officer.

[122]Mr Kelly gave evidence about how he conducted the appeal and the reasons for his decision. We consider that his actions were within the range of responses that could be expected of an employer in the circumstances. The claimant makes a number of observations about the appeal but we do not consider that they show that the appeal was unfair.

[123]The list of issues, when dealing with unfair dismissal, asks was the claimant dismissed by the respondent on the grounds of capability due to ill health. The Tribunal is satisfied the reason the claimant was dismissed was capability due to ill health. The claimant had been absent from work since August 2022 (about 15 months and 3 weeks at dismissal date). The respondent did not know if or when the claimant's health would improve or whether she would be likely to return to work at that time. The respondent followed the sickness absence management procedure. The claimant had not provided consent for the decision maker to consider her OH reports, notwithstanding that the final formal review meeting was adjourned so that an updated OH report could be provided, and then again postponed to 20 December to give the claimant further opportunity to provide her consent to Mrs McGrath to view the OH report, but it was not forthcoming. The claimant had made it clear that she would not return to work if Mr Mir was to remain her line manager. At the point of her dismissal, the claimant's absence was no longer sustainable because the admin team was put under pressure by having to do more work to cover for the claimant's absence.

[124]The claimant’s complaint of unfair dismissal is not well founded and is dismissed. Approved by: 2 Page 13 of the claimant’s written submissions Page 22 of 23