Miss V Ware v Frimley Health NHS Foundation Trust: 3306943/2023

EMPLOYMENT TRIBUNALS

Case No 3306943/2023

Between

Miss V WayClaimant

Frimley Health NHS Foundation TrustRespondent

Date 5 August 2024

JUDGMENT

The complaint that the claimant was unfairly dismissed is struck out.

REASONS

[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.

[3]The claimant was employed by the respondent for less than two years.

[4]Therefore the claimant is not entitled to bring such a complaint.

[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.

[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.

[1]On submitting her claim, the claimant ticked boxes in the claim form identifying her claims as unfair dismissal and disability discrimination.

[2]The dates of employment given by her on the form show that she has less than two years’ service. Two years’ service would normally be necessary for an unfair dismissal claim. Accordingly she was sent a “strike out warning” proposing that her unfair dismissal claim was struck out and giving her until 14 July 2023 to give reasons why the claim of unfair dismissal should not be struck out.

[3]Following the respondent’s response to the claim, and seeing no response from the claimant to the strike out warning, on a rule 26 review I prepared a judgment striking out the unfair dismissal claim. This is dated 8 September 2023. It was sent to the parties on 22 October 2023.

[4]The claimant immediately responded, pointing to an email she had sent on 14 July 2023 saying why her unfair dismissal claim should not be struck out, and attaching screenshots in support. This was referred to me on 2 November 2023.

[5]I have treated this as an application by the claimant to reconsider the judgment of 8 September 2023. Case No: 3306943/2023

[6]The claimant is correct to say that she sent a reply to the strike out warning within time. That should have been on the file at the time I came to consider the judgment, but it was not. It was not her fault that it was not on the file.

[7]I have considered whether, in the light of that response, the original judgment should stand.

[8]I refuse the application for reconsideration because I consider there is no reasonable prospect of the original decision being varied or revoked. Although the claimant in her email and appendices criticises the respondent’s decision to dismiss her, and makes points that may well be relevant to her disability discrimination claim (which continues despite the striking out of her unfair dismissal claim) there is nothing in that material that suggests she has the right not to be unfairly dismissed without the necessary two years’ service. The claimant appears to be saying that her dismissal amounted to disability discrimination. If so, that can be dealt with as part of her disability discrimination claim, in respect of which further orders will be made and a case management preliminary hearing listed. The unfair dismissal claim remains struck out.

[1]The claimant was employed by the respondent Trust, as a Medical Laboratory Assistant, from 8 August 2022 until 18 May 2023. Early conciliation started on 9 June 2023 and ended on 12 June 2023. The claim form was presented on 23 June 2023. The respondent defends the claim. Page 1 of 29

[2]The claim is for direct discrimination, discrimination arising from disability and failure to make reasonable adjustments. It concerns the claimant’s dismissal for ill-health absence.

[3]The hearing was listed for four days from 30 April to 3 May 2024. The panel took the first day for reading and to decide an amendment application by the claimant. The claimant’s amendment application

[4]The claimant’s amendment application had been discussed at a preliminary hearing on 15 February 2024. Orders to facilitate the amendment application were made and complied with by the parties. Unfortunately, by the time of the hearing before us, the amendment application had not been determined.

[5]We heard the parties’ comments on the application on the morning of 30 April and gave the parties our decision in the afternoon. We explained our reasons at the hearing. A short summary of our decision and reasons follows.

[6]We allowed the claimant’s first proposed amendment, the addition of a second complaint of direct disability discrimination, that the respondent had provided a reference to Nuffield Health which resulted in the claimant’s job offer from Nuffield Health being withdrawn.

[7]For reasons explained at the hearing, we did not allow the claimant’s second and third proposed amendments. We give a brief summary of our reasons here.

[8]The second proposed amendment, a complaint about a change of work from home days, was insufficiently clear for us to understand it. The claimant was unable to say what type of discrimination she was alleging.

[9]The third proposed amendment was to include a complaint of failure to make reasonable adjustments in relation to the provision of equipment for the claimant. We found that the balance of prejudice fell in favour of the respondent on this application because it would have given rise to a requirement for the respondent to identify additional documents, and produce supplemental statements or, in the alternative, it would have resulted in a delay to the hearing.

[10]We accepted, as suggested by the respondent’s counsel, that the claimant could be permitted to rely on the matters raised in proposed amendments 2 and 3 as background to her other complaints, and to ask the respondent’s witnesses questions about those matters. We accepted that they may be relevant to the existing complaints of discrimination arising from disability and failure to make reasonable adjustments. Bundle of documents Page 2 of 29

[11]The parties had prepared a bundle with 436 pages. The respondent prepared a cast list and chronology; this was included in the bundle as pages 437 to 439.

[12]On the morning of the second day of the hearing, 7 pages of additional documents were added to the bundle by consent. These were:12.1 copies of a series of WhatsApp messages, a fuller version of a document already in the bundle (added as pages 440 to 443), and

12.2 an exchange of emails between the claimant and the respondent’s solicitor about the reference (added as pages 444 to 446).

[13]Page references in these reasons are to that bundle. The evidence

[14]We started hearing evidence on 1 May. At the suggestion of Ms Ibbotson, we heard first from the respondent’s witness David Baulch on the reference, as this issue had been added by amendment and therefore had not been dealt with in his statement. We heard his evidence on this for about 15 minutes. He answered about 10 questions put to him by Ms Ibbotson relating to the reference only.

[15]At 10.45 the claimant started giving her evidence. Shortly afterwards, at about 11.09, the claimant appeared to have a short seizure. The claimant was supported by her husband, who is her carer, and her mother in law. A member of the tribunal’s administration staff attended to provide assistance; the panel and the respondent’s representatives and witnesses left the tribunal room. The claimant told the tribunal staff member that she did not require medical assistance and at 11.35 she said she was ready to proceed.

[16]Before re-starting the claimant’s evidence, we spoke to the claimant and those supporting her, with the respondent’s representatives present. We wanted to understand whether the claimant felt she was able to go ahead, and if so whether any other steps could be taken to assist. The claimant said her seizures can be triggered by stress. She said she would like to continue and complete her evidence. We canvassed some possible steps which might make the process less stressful, including regular breaks, written questions, assistance finding bundle pages and reducing the number of people in the tribunal room. The claimant said that she would prefer spoken questions and that she was not having any difficulty finding pages or with the number of people in the room. She said regular breaks would assist.

[17]We decided to continue with the claimant’s evidence, and to include breaks of 15 minutes after every half hour of cross examination. We told the claimant to let us know if there was anything else she could suggest at any stage to make the process of giving evidence less stressful. The claimant confirmed that she would. Page 3 of 29

[18]The claimant’s evidence restarted at 11.45. We incorporated the breaks as agreed. The claimant was able to continue with her evidence.

[19]At the end of that day (day 2), the claimant was still giving evidence. She asked if she could be released from her affirmation overnight so that she would not have to be separated from her carer (her husband), who would be working with her mother in law to prepare questions for the respondent’s witnesses. After some discussion about the terms on which the claimant might be released, Ms Ibbotson said that the respondent did not object. We released the claimant overnight. We told her that she must not have any discussions with her husband and her mother in law about how she would answer any question which might be put to her by the respondent, but that she could assist them, if needed, with their preparations for questions for the respondent’s witnesses.

[20]The claimant’s evidence continued on the third hearing day and was completed by 11.35. We allowed a break for the claimant and those supporting her to get ready to ask their questions of the respondent’s first witness, Mr Baulch. His evidence started at 1200. The claimant asked him questions. The claimant said she found the process less stressful than being questioned herself, and so she felt able to have less frequent breaks during the respondent’s witness evidence. We took breaks every hour rather than every half hour during this part of the hearing.

[21]Mr Baulch’s evidence was completed by the end of day 3.

[22]On day 4 we heard from Mrs Mallo, the dismissing manager, and Ms Boparai, the appeal manager. The respondent’s evidence was completed at 11.40. Closing comments and reserved judgment

[23]Ms Ibbotson prepared a helpful written closing submissions document.

[24]We took a longer lunch to allow the claimant time to consider the respondent’s document and to gather her thoughts before making her own closing comments. We started hearing oral closing comments from the respondent at 2.15 and from the claimant at 2.40. Closing comments finished at 3.30.

[25]There was insufficient time in the hearing time allocated for us to make our decision and explain it to the parties so we reserved judgment. We arranged a date for a remedy hearing, explaining to the parties that it would be cancelled if not needed.

[26]The panel met to make the decision on 24 May 2024. The judge apologises to the parties for the delay in sending this reserved judgment. This is because of the current workload in the employment tribunal. The issues Page 4 of 29

[27]The issues for us to decide were discussed and recorded at a preliminary hearing on 15 February 2024. This hearing is to deal with liability only.

[28]A complaint of unfair dismissal was struck out before the preliminary hearing because the claimant did not have two years’ employment at the time of her dismissal.

[29]The remaining issues for us to decide are set out in an appendix below (with the original numbering retained for ease of reference). We have added the additional complaint which we allowed on amendment to the list of issues as issue 1.1.2. Findings of facts The claimant’s application, appointment and induction

[30]On 31 May 2022 the claimant completed an application form for the role of Medical Laboratory Assistant with the respondent (page 123). She said in the form that she was disabled. The respondent accepts that the claimant is disabled by ME/CFS, fibromyalgia, functional neurological disorder, nonepileptic attack disorder, IBS, asthma and depression.

[31]The role was a full-time role. The claimant was interviewed and was the highest scoring applicant for the role.

[32]On 27 June 2022 the claimant completed an Occupational Health questionnaire and her health conditions (page 134). She was asked to attend an Occupational health appointment to assess her fitness for the role. The appointment took place on 26 July 2022. The Occupational health doctor wrote to the respondent after the appointment. He said that, in his opinion, the claimant would be covered by the Equality Act (page 139). He suggested that it would be reasonable to make two adjustments for the claimant:32.1 He said her sickness may be higher than average. He believed it would be reasonable to allow her a higher trigger for sickness absence management. He added that it is for management to determine how much sickness could be accommodated;

32.2 Secondly, he said the claimant occasionally needed to use a wheelchair and during these episodes she would need disabled parking.

[33]The report said, and we accept, that the claimant was more prone to sickness absence than people without her conditions. The claimant said that there are two reasons for this: absence arising from her medical conditions themselves, and absence arising from the fact that her immune system and pre-existing conditions mean that she has a longer recovery time for other illnesses, like colds and flu. The claimant has had complex medical conditions for some years (page 118) and her evidence is based on her experience of the impact of these medical conditions on other illnesses. We Page 5 of 29 accept her evidence about the reasons for her higher sickness absence. We find that the claimant did not tell the respondent about the impact of her disabilities on recovery time for other illnesses until her appeal against dismissal.

[34]The occupational health report was sent to the claimant’s manager, David Baulch. He replied to occupational health, saying, “We agree to the terms set out and are happy to make the reasonable adjustments” (page 138).

[35]The claimant started working for the respondent on 8 August 2022 (page 142). She had a six month probation period.

[36]At the claimant’s induction, Mr Baulch arranged a disabled parking space for the claimant.

[37]The respondent’s probation policy included sickness absence triggers(page 112). It said: “Note that 2 occurrences of short term sickness totalling 4 or more days (pro-rata for less than 5 days a week) during the 6 month probationary period is an indication of serious concern and it must be explained to the probationer that they are unlikely to be confirmed in post if they have further incidences, unless there are mitigating circumstances (including pregnancy related sickness). Managers need to consider whether a reasonable adjustment for someone with a disability may need to be made, taking advice from Occupational Health.”

[38]Mr Baulch decided not to set adjusted sickness absence triggers for the claimant. Instead, he decided to see how much sickness absence occurred during the first 6 months so that the respondent understood the level of sickness absence, and could then set the trigger points accordingly. Mr Baulch felt this would be a fairer way of adjusting the trigger points than simply guessing when he had no evidence or understanding of what the claimant’s level of sickness absence would be. He did not think it was appropriate to set an increased target so early on. He also thought it made sense to adjust the targets once he understood the impact that the claimant being absent from work would have on the team.

[39]Therefore, for the claimant’s initial six month probationary period, she was not set any triggers for sickness absence management. Mr Baulch told the claimant that her sickness absence would be monitored during her probationary period, but there would be no repercussions arising from any absence during that period. This was because he could not confidently identify what would have been a reasonable target during that period.

[40]When the respondent began paying the claimant, she discovered that she had been put on the wrong pay point within band 2. She was paid £20,270 when she had been told that she would be paid £22,384. The claimant and Mr Baulch were in communications with HR about this for some time. It was finally corrected after the claimant left the respondent’s employment; the Page 6 of 29 respondent paid the claimant arrears of pay, as recorded on a payslip in August 2023 (page 403). The claimant’s role and workplace

[41]The claimant’s role was a full time role as Medical Laboratory Assistant. She was a member of a laboratory team who worked in an area comprising an open office and an adjoining lab. The claimant’s team was made up as follows:41.1 The team manager was Mr Baulch. He had other responsibilities and was only in the office where the claimant worked for one to two days a week.

41.2 There was a part-time deputy manager and another laboratory assistant who did the same role as the claimant but worked parttime.

41.3 A second part-time laboratory assistant was in the team when the claimant first joined but left after about a week. That member of staff was not replaced until December 2022.

41.4 One other interim manager occasionally worked in the team and was in the office on a Friday.

[42]Because of the claimant’s medical conditions, an arrangement was put in place whereby the claimant would not be in work unless someone else was present. This meant that the respondent asked her to work from home on occasions.

[43]There were limited workstations in the office and, in order to make sufficient space, a piece of wood had been placed between two desks to make a temporary third desk in the middle. The claimant’s workstation was at that temporary third desk.

[44]The claimant’s first period of sickness absence was from 19 to 22 August 2022 (which included 1 working day). She had flu symptoms and stomach issues. There was no return to work form completed in respect of this day’s absence The DSE assessments

[45]On 2 September 2022 Mr Baulch completed display screen equipment assessments for the claimant. They went through two forms together, one for when the claimant was using her wheelchair, and one for when she was not.

[46]Mr Baulch forwarded both assessments to the respondent’s health and safety/manual handling team and asked them to assess the set-up of the claimant’s workspace and pass on any recommendations (page 176). Page 7 of 29

[47]The health and safety advisor attended the claimant’s workplace on 8 September 2022 and completed a DSE assessment on 12 September 2022 (page 177). She noted that the room where the claimant worked would be rearranged soon as there would be another member of the team joining and more desk space would be required.

[48]In relation to the claimant’s desk, the advisor said that her desk was ‘not at present suitable as it is a temporary bridge between two other desks’ and it was also too low for when she needed to use her wheelchair. The health and safety advisor recommended a sit-stand desk to enable the claimant to work comfortably depending on her requirements at any given time. She gave instructions for how the desk could be purchased. The advisor also noted that the claimant’s chair was not fully adjustable and was not set up to support her sufficiently. She advised that the claimant should have access to a footrest and an ergonomically friendly keyboard and mouse. She concluded by saying ‘the environment at present is not great but is adequate’.

[49]On receipt of the DSE assessment for the claimant Mr Baulch decided to seek approval to upgrade the desks for the whole team to sit-stand desks, not just to purchase one sit-stand desk for the claimant. He was given approval to do so. None of the other staff had been recommended sit-stand desks in a DSE assessment. The claimant’s sickness absences

[50]The respondent had a computerised absence history record system and the claimant’s absence history was included in the bundle at page 291. However, neither party relied on this document because it did not match the absence dates given by the parties or the dates in all the return to work forms. We have made findings about the claimant’s sickness absences by reference to the evidence we heard and the documents we read, including the return to work forms.

[51]On 22 September 2022 the claimant attended work but had to leave part way through the day because of a musculoskeletal issue. We find that this absence arose from the claimant’s physical disabilities (her ME/CFS, fibromyalgia and functional neurological disorder).

[52]When she returned to work on the following day she had a return to work interview with Mr Baulch (page 172). In that document Mr Baulch recorded the sickness absence as a half day, and he recorded the total sickness absence in the previous 12 months as 1.5 days. That total included the claimant’s absence on 19 August.

[53]On 2 October 2022 the claimant began another period of sickness absence, this time for cold/flu. She returned to work on 7 October 2022. We find that this absence arose in part from the claimant’s disabilities in that it took her longer to recover from cold/flu symptoms, because of her disabilities. Page 8 of 29

[54]The claimant had a return to work meeting with Mr Baulch (page 181-182). Mr Baulch recorded the number of days off sick as 5 days; that was incorrect as 2 October was a Sunday, a non-working day for the claimant. This period of sickness included 4 working days off sick. Mr Baulch recorded the total number of days sickness absence over the last 12 months as 6.5 days. That was incorrect; it ought to have said 5.5 days.

[55]On Tuesday 11 October 2022 the claimant had a seizure at work halfway through her shift. She was absent from work for the remainder of the week. We find that this absence arose from the claimant’s disabilities (nonepileptic attack disorder).

[56]The claimant had an exchange of messages with the deputy manager on Thursday 13 October. The deputy manager told the claimant that she should work from home the following day if she was well enough. The claimant was not well enough to work from home. She reported to Mr Baulch on Monday 17 October that her last day of sickness had been Sunday 16 October. As the claimant had worked a half day on 11 October her sickness absence was 3.5 days but it was recorded in the return to work form as 4 days. The total sickness absence over the previous 12 months was recorded as 10.5 day. When the inaccuracies are taken into account, the actual total was 9 days.

[57]On 18 October 2022 the claimant had an episode of vomiting related to IBS. The claimant was absent from work on that day and was unable to return to work on 19 October because of the respondent’s sickness absence policy which required her to stay off for at least 48 hours after an episode of vomiting. She worked from home from 19 to 21 October (page 186 and page 372). The claimant’s return to work meeting was completed on 24 October by Mr Baulch. The form recorded 4 days absence. Taking into account that the claimant had been working from home since 19 October, only 18 October 2022 should have been recorded as sickness. The running total of sickness absence over the last 12 months after this period of absence was recorded by the respondent as 14.5 days but the correct total was 10 days by this point.

[58]During the return to work meeting with Mr Baulch on 21 October, Mr Baulch and the claimant had a discussion about working from home when sick. Mr Baulch made clear that the respondent’s expectation was that if an employee is sick there is no requirement to work. However, his note of the discussion records that he said, ‘The claimant knows herself and will lead’, adding that sickness would need to be reported. We accept the claimant’s evidence, which was consistent with this note, that in their discussion, Mr Baulch and the claimant agreed that if there were occasions when she was off sick but felt well enough to do some work from home, she could take the lead on that and could do so (page 187). There was a distinction made between being off sick and not well enough to work, in which case the claimant would not have been expected to work, and being unable to come into work for some reason, but still well enough to work from home. The claimant understood that she was able to lead on whether she was well Page 9 of 29 enough to work from home or not. This was also in line with what the deputy manager had told the claimant on 13 October.

[59]On 21 October 2022 Mr Baulch checked in with the claimant and asked how she was feeling and whether she would be in work on that day, concluding by saying, “I don’t want you to worry about sickness. We chose this path and will walk it together :)” (page 180). The claimant replied to say that she would not be in the office but would be doing what she could from home.

[60]In the return to work meeting following this period of absence, the claimant and Mr Baulch agreed that the claimant would work from home on Tuesdays and Wednesdays to allow her a break in the middle of the week when she would not have to commute, as she found the journey contributed to her fatigue. It was hoped that this working from home arrangement would assist the claimant to improve her attendance record.

[61]The claimant had another period of sickness absence for flu-like symptoms which started on 2 November 2022 and ended on 11 November 2022. We find that this absence arose in part from the claimant’s disabilities; it took her longer to recover from flu-like symptoms because of her disabilities. The claimant was well enough to return to work and went to work on Monday 14 November 2022, but tested positive for covid before going in. Mr Baulch sent her home when she called him from the car park. Due to trust policy the claimant had to stay off work for 10 days and have two negative lateral flow tests before she could return. The claimant worked from home during this time. This was in line with the practice in the trust for staff who tested positive for covid but had no symptoms.

[62]The claimant’s period of sickness absence which started on 2 November was for a total of 8 days bringing the total number of days sick over the last 12 months to 18 days but this was noted on the respondent’s records as 22.5.

[63]The covid-related period of sickness absence which started on 14 November was for a period of 8 days. The claimant returned to work on 24 November 2022. The return to work date was incorrectly recorded on the return to work form, as it gave the same date for the return to work and the last day of sickness, but a return on 23 November would have been 9 days not 10 days isolation as required. The return to work form also failed to take into account that the claimant had worked from home during this time. The 8 day sickness absence period for covid brought the total number of days sick to 26 days, not 30.5 days as recorded on the respondent’s forms.

[64]This total period of absence of 26 days included 8 days of absence for covid which was discounted under the respondent’s absence management procedures at the time. Therefore, after discounting the covid absence, the claimant’s total absence was 18 days. The claimant’s workstation Page 10 of 29

[65]In December 2022 a new part-time laboratory assistant joined the team. She worked part-time, from Monday to Thursday. She was being trained by one of her colleagues. She had to sit next to that colleague and so she frequently used the middle desk which the claimant had mostly been using up to this time.

[66]When her new colleague was in the office, the claimant sat either on the laboratory bench using the PC there, or she sat without a desk using her laptop on her lap. The laboratory bench was higher than a desk and was not suitable for the claimant. Neither of these arrangements had been assessed by the health and safety advisor.

[67]The sit-stand desk which had been recommended for the claimant by the health and safety advisor had been delivered in November 2022. The desks which had been ordered for the claimant’s colleagues were delivered at the same time. There was a long delay in setting up the desks. This was because, in order to put up all four desks in the office space available, some works had to be carried out, including removing some benching and a fridge freezer, and having checks done by the fire officer. As the office was rented, the works also had to be notified to the landlord. For these reasons it took a long time to make the required adaptations and fit the four sit-stand desks. We do not accept, as Mr Baulch suggested, that it would not have been possible to set up one sit-stand desk in place of one of the existing desks without any works being carried out. Mr Baulch’s requests for HR advice

[68]In the course of November to January, Mr Baulch exchanged emails with the respondent’s HR in which he asked for assistance with the management of the claimant (page 195-199). He was aware that the claimant’s probationary period would be coming to an end on 7 February 2023, and he wanted advice and support on how to deal with sickness absence triggers in the claimant’s case. When he did not receive any substantive reply to his first request for assistance, sent on 1 November 2022, he chased it up on 15 November, 25 November, 2 December, 15 December and 5 January.

[69]By 5 January Mr Baulch was becoming increasingly unhappy about the lack of advice and support he had had from HR. He said that he felt totally unsupported, had tried his best to engage with correct people and had had nothing back for months. He highlighted that the six month review of the claimant’s probation period was due soon and he asked whether he was to complete it with no support from OH or HR.

[70]The respondent’s HR business partner asked Mr Baulch to confirm how much sickness absence the claimant had taken. Mr Baulch replied, setting this out (page 195). The respondent’s HR business partner suggested that the claimant’s probation should be extended for three months based on the amount of sickness she had taken. The claimant’s probationary review meeting Page 11 of 29

[71]The claimant and Mr Baulch had a probationary review meeting on 26 January 2023. Mr Baulch completed the form to record that the claimant had had 30 days sickness absence by this point (page 200). This included 8 days sickness absence for covid which was discounted under the respondent’s policies, and 4 days which we have found were wrongly recorded and were not sickness absence. The correct figure would have been 18 days.

[72]The report also said that the claimant was well-motivated, capable and her work was of a high standard. No concerns were noted under ‘values and behaviours’.

[73]Mr Baulch offered the claimant a reduction in hours from 37.5 to 26.5 hours a week. The claimant said she was unable to do so because she could not afford to reduce her pay. This was partly because of the ongoing error with the claimant’s pay point which meant that she was still being underpaid.

[74]Mr Baulch followed HR’s guidance and extended the claimant’s probationary period for three months. He recorded that she was a valued and competent member of staff and said he would like to give her the opportunity to work with the respondent on her sickness frequency as the weather became warmer and reasonable adjustments were implemented. He recorded that reasonable adjustments had, where possible, been implemented (page 202).

[75]At this stage, the claimant’s sit-stand desk, which had been recommended by the health and safety advisor on 12 September 2022, had been delivered to the workplace but was still not set up. The respondent was waiting for the works to be carried out so that all four sit-stand desks could be set up (page 200).

[76]During the probation review meeting the claimant and Mr Baulch discussed a target for sickness absence for the extended period of probation of three months. Mr Baulch decided to set a target calculated by reference to the claimant’s sickness absences taken at the time of the probationary review meeting, and applying a 25% reduction. Mr Baulch said this equated to a trigger of 11 days sickness absence over 3 months or 2 bouts of sickness absence over the same period. Mr Baulch set the target in the absence of advice from HR.

[77]Mr Baulch emailed HR on 7 February 2023 to confirm the extension of the claimant’s probationary period by three months. He asked for the form to complete, and this was sent to him by HR. He returned the completed form, dating it 7 February but he was told by HR that he should redate it to reflect the date on which the meeting was held, which was 26 January (page 200).

[78]The claimant’s probationary period was now extended to 26 April 2023. Further sickness absence Page 12 of 29

[79]After the probationary review meeting the claimant had a further period of sickness which started on 6 February 2023. The claimant worked for a half day but had to leave at midday because she was in chronic pain and had reduced mobility even when using her wheelchair. This period of sickness absence ended on 17 February 2023.

[80]This absence was for 9.5 days for back pain/sciatica. The claimant was signed off sick by her GP for this period of sickness. We find that this absence arose from the claimant’s disabilities (her ME/CFS, fibromyalgia and functional neurological disorder). That is consistent with the report of the claimant’s neuropsychiatrist which recorded that the claimant’s symptoms of pain/fatigue were mainly in her neck, shoulder and lower back.

[81]At the return to work meeting on Monday 20 February 2023 the claimant agreed to Mr Baulch’s suggestion of a referral to Occupational Health. At this point she had had a further 9.5 working days absence which meant that, when the covid absence was discounted, she had had 27.5 days sickness absence since joining. The respondent’s forms recorded 40 days absence at this point.

[82]On 2 March 2023 the claimant had a seizure at work and had to take sickness absence on 3 March. We find that this absence arose because of one of the claimant’s disabilities (her non-epileptic episode disorder).

[83]The claimant’s return to work form for this absence is unclear about the date on which she returned to work as it gives the same date for the last date of sickness and the date of the return to work (6 March 2023 – page 224). Mr Baulch’s evidence was that the claimant returned to work on Monday 6 March 2023. We accept this evidence because it is consistent with the entry on the return to work form which said that the claimant had only one day off sick, ie Friday 3 March. This additional day’s sickness absence meant that the claimant had had 28.5 days sickness absence since starting with the respondent (after discounting covid absence). The number of days sick was recorded by the respondent at this point as 41 days.

[84]During this return to work interview the claimant asked if she could reduce her hours from 37.5 to 32.5 per week. Mr Baulch said that as the department was busy, she could only do this if the hours were covered by another member of staff. He was to discuss with the rest of the team if/how a reduction could be accommodated (page 285). No-one was willing to increase their hours and the request was still ‘under review’ on 5 May 2023 (page 286). Change of working pattern

[85]On 21 March 2023 the claimant learnt from her colleagues that her work from home days were to be changed. She had been working from home on Tuesdays and Wednesdays which was helpful for her because she found the middle of the week the most tiring. Her work from home days were to change to Tuesdays and Thursdays so that the claimant would be in the office on Wednesdays (page 232). Page 13 of 29

[86]The claimant’s working from home days were changed so that she would be in the office on a Wednesday because the claimant’s new colleague’s nonworking day was changing from Friday to Wednesdays so that she could attend an after work sports activity. The claimant was surprised to have learned about this change from her colleagues. She sent a message asking Mr Baulch about it. He said that the claimant should keep her work from home days the same for that week and they would discuss it later.

[87]On 22 March the claimant was told by her colleague that three of the sitstand desks were being put up. Her colleague sent her photos of the desks (page 233-235). The claimant was not given a fixed workstation. As the claimant’s new colleague was still being trained and there were other staff in the office, there were still days when the claimant had to sit at the laboratory bench or work with her laptop on her lap.

[88]On 23 March the claimant met with Mr Baulch to discuss the changes in working from home pattern. He said the department was significantly busier on Fridays and needed more staff in the office. The claimant said she understood the reasons for the change but would have liked to have been included in the discussion. Mr Baulch said it was a brief chat on the spur of the moment so they couldn’t contact her about it. The claimant said it would be a big change for her: her body would need time to adjust to the new hours and days as she was better with a set working pattern. The change was implemented from the week commencing 27 March 2023. Occupational health referral

[89]The claimant’s Occupational Health referral was still being progressed and so HR advised Mr Baulch to extend the claimant’s probationary period again to allow time for that to be completed (page 244). He extended the claimants probation by one month. The claimant was notified of the extension to her probationary period.

[90]The claimant saw the Occupational Health advisor on 18 April 2023 and a report was produced on the same day. The report said that the claimant was fit for full normal duties and that it would be a reasonable adjustment to allow her a higher trigger for attendance management.

[91]The claimant had another period of sickness absence of 1 day on Friday 21 April for diarrhoea and vomiting related to IBS (page 285). This was absence arising from the claimant’s IBS. She began another period of sickness absence for musculoskeletal issues on 12 May 2023. This arose from the claimant’s disability (her ME/CFS, fibromyalgia and functional neurological disorder).

[92]At this stage, the claimant’s total days sickness absence (not counting the covid absence) was 29.5 days absence. The respondent’s records wrongly showed the total as 34 days (excluding covid). Probationary review meeting and dismissal Page 14 of 29

[93]Mr Baulch had been preparing a report on the claimant’s probationary period since 2 February 2023, and he updated this monthly (page 281 and 286). Mr Baulch’s report was detailed. It did not note any concerns about values and behaviours or honesty and integrity. The conclusion was, as before, that the claimant was a valued and competent member of staff and he would like to give her the opportunity to work with the respondent on her sickness frequency as the weather got warmer and as reasonable adjustments were implemented.

[94]Again, Mr Baulch included covid absence in the figures he gave for the claimant’s total days’ sickness absence. Mr Baulch said that he included covid absence in the total because he wanted to put down the facts for the trust.

[95]The claimant was sent an invitation on 5 May to attend the meeting on 12 May (page 289). The probationary review meeting was held with Ms Mallo. Ms Mallo said that between the claimant’s start date and the end of the 9 month probationary period, the claimant had 34 days of sickness absence. She excluded the period of 8 days when the claimant had covid. She decided that some periods of absence in the initial six month period were not disability-related, including cold/flu (5 days), flu like symptoms (8 days) and sciatica (9.5 days).

[96]Ms Mallo decided that the claimant’s employment should be terminated due to the levels of sickness. The claimant was given one week’s pay in lieu of notice and her employment terminated on 12 May (page 296).

[97]The claimant’s dismissal was confirmed in a letter of 15 May 2023 (page 300). The dismissal letter recorded that the claimant had 8 episodes of sickness absence totalling 34 days excluding 1 episode of confirmed covid, and excluding the current period of ongoing absence which started on 2 May. The dismissal letter recorded that the standard trigger point for concern relating to absence was 2 episodes.

[98]At the meeting the claimant asked to reduce her working hours to 32.5 per week, a reduction of one hour each day. The claimant suggested that reduced hours could help her to manage her attendance. Ms Mallo said that a reduction in hours would be too difficult because the team was already stretched.

[99]The claimant appealed against her dismissal on 19 May 2023 (page 304). The appeal hearing took place on 6 June 2023 (page 332) before Mrs Boparai. At the appeal the claimant was asked what adjustments could make a difference. She said putting up the sit-stand desk would be a benefit. Mrs Boparai found that all reasonable measures had been put into place (page 353). She did not mention the failure for over six months to put in place the recommended sit-stand desk.

[100]The claimant also said that reducing hours would be beneficial. She said could reduce her hours by 10 per week or reduce to 4 days a week like her colleagues (page 338). Page 15 of 29

[101]Mrs Boparai sent Mr Baulch an email asking for further information about the reasonable adjustments which were put in place for the claimant (page 340).

[102]The appeal outcome was sent on 13 June 2023 (page 350). Mrs Boparai decided that all reasonable adjustments had been made for the claimant (page 352). She did not mention the delay in installing the sit-stand desk. In relation to sickness absence, Mrs Boparai considered the claimant’s sickness record after the extension of her probationary period in January 2023, concluding that the adjusted target applied during the extended probation had been breached. She did not take earlier absence into account (page 353). As to the claimant’s request for reduced hours, she said that a reduction of an hour a day could not be absorbed by the team (page 352).

[103]The appeal was unsuccessful and the claimant’s dismissal was upheld. Reference for prospective new employer

[104]After the claimant left the respondent’s employment, she was successful in obtaining a role with Nuffield Health, subject to references. Nuffield Health asked the respondent for a reference for the claimant (page 426).

[105]Mr Baulch completed a draft of the reference form and sent it to HR on 30 June 2023 (page 425). In the form Mr Baulch recorded that:105.1 the claimant’s attendance was poor and that she had had 46 days absence over 10 bouts during her probationary period. He did not note that 8 days of this was covid absence which was discounted.

105.2 the claimant’s level of honesty and integrity was ‘acceptable’. This was the third of four possible options: excellent, good, acceptable or poor. ‘Acceptable’ was therefore a low assessment.

[106]Mr Baulch got the total absence figure from the investigation report he had prepared for the probationary review meeting. He took the figure of 41 which was recorded as the figure for absence to March 2023 and added 5 days absence from April and May 2023 (1 day and 4 days). He did not discount the figure for covid absence in the report or in the reference.

[107]The HR officer asked why Mr Baulch has assessed honesty and integrity as ‘acceptable’ (page 430). Mr Baulch replied to say he had never experienced an attitude less than acceptable from the claimant. He did not refer to any specific concerns about honesty and integrity and gave no explanation as to why he had not selected good or excellent. The HR officer said she had no other questions.

[108]In his evidence to us, Mr Baulch said he found Mrs Ware’s honesty and integrity acceptable at all times. He did not select excellent or good for two reasons. First, he had had some conversations with the claimant about lone working. He had said lone working was not a good idea for health and safety reasons, but it continued to happen. We have not found any evidence Page 16 of 29 of that and it is not raised as a concern on the probationary review form or the investigation report. Secondly, Mr Baulch said he had made it clear in October 2022 that there was no expectation on the claimant to work from home when she was sick but that also continued to happen. We asked Mr Baulch when it continued to happen after October 2022 and he said during the claimant’s covid absence. This is consistent with our findings, and we accept that the only occasion on which the claimant worked from home when unable to attend work because of sickness was during the period in November 2022 when she was not able to be at work because of covid. We have found that she did so in line with the practice in the trust for staff who tested positive for covid but had no symptoms.

[109]Mr Baulch sent the reference form to Nuffield Health on 3 July 2023. Nuffield Health withdrew the offer of employment to the claimant, and told her that this was because of the reference provided by the respondent. The law Disability

[110]Disability is a protected characteristic under sections 4 and 6 of the Equality Act 2010. Direct disability discrimination

[111]Section 13(1) of the Equality Act says: “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.” Discrimination arising from disability

[112]Section 15(1) of the 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.”

[113]Section 15(2) says that: “Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[114]There are four elements to section 15(1), as explained by the EAT in Secretary of State for Justice and anor v Dunn EAT 0234/16:114.1 there must be unfavourable treatment; Page 17 of 29

114.2 there must be something that arises in consequence of the claimant’s disability;

114.3 the unfavourable treatment must be because of the something that arises in consequence of the disability; and

114.4 the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[115]In Pnaiser v NHS England and anor

2016 IRLR 170

, EAT, Simler J summarised the approach to be taken under section 15. In relation to the the ‘something arising’, she said (paragraph 31): “(b) … the ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. … (d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. … the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. … (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.” Failure to make reasonable adjustments

[116]The duty to make reasonable adjustments comprises three requirements. In this case, the first requirement is relevant. This is set out in sub-section 20(3). In relation to an employer, A: “(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[117]Under section 21, a failure to comply with the duty to make reasonable adjustments amounts to unlawful discrimination. Page 18 of 29

[118]Under paragraph 20 of schedule 8 of the Equality Act, an employer is not subject to the duty to make reasonable adjustments for someone in their employment if they do not know and could not reasonably be expected to know: “that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first…requirement.”

[119]Paragraph 6.2 of the Equality and Human Rights Commission Code of Practice on Employment says: 'The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers ... unfavourably and means taking additional steps to which non-disabled workers ... are not entitled.' Burden of proof in complaints under the Equality Act 2010

[120]Sections 136(2) and (3) provide for a shifting burden of proof: "(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) This does not apply if A shows that A did not contravene the provision."

[121]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.

[122]If the burden shifts to the respondent, the respondent must provide an “adequate” explanation, which proves on the balance of probabilities that the respondent did not fail to make reasonable adjustments.

[123]The respondent would normally be expected to produce “cogent evidence” to discharge the burden of proof. If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then it is mandatory for the tribunal to make a finding of discrimination. Conclusions

[124]We apply these legal principles to our findings of fact to reach our conclusions on the issues for us to decide. We have considered the complaints in a different order to the list of issues, starting with the complaint of discrimination arising from disability.

[125]The respondent accepts that the claimant is disabled within the meaning of section 6 of the Equality Act 2010 by ME/CFS, fibromyalgia, functional Page 19 of 29 neurological disorder, non-epileptic attack disorder, IBS, asthma and depression. Discrimination arising from disability

[126]The unfavourable treatment relied on by the claimant is the dismissal. That amounts to unfavourable treatment.

[127]There was no dispute that the reason for the dismissal of the claimant by Ms Mallo was the claimant’s levels of sickness absence. Ms Mallo said this in the meeting when the claimant was dismissed, and in the letter of dismissal. Ms Mallo recorded that the claimant had taken 8 occasions of sickness absence of 34 days in total.

[128]We assess on an objective basis whether the claimant’s level of sickness absence, the reason for the dismissal, was something arising in consequence of her disability. This is a question of fact. The causal link between the something that causes the unfavourable treatment and the disability may include more than one link.

[129]We have found that the claimant was more prone to sickness absence than someone without her conditions. That was the advice given by the respondent’s occupational health. We have found, based on the claimant’s evidence, that there were two reasons for her being more prone to sickness absence: firstly, she could have absence arising from her medical conditions themselves, and secondly, she could have absence arising from longer recovery times from other illnesses. Both of those were in consequence of the claimant’s disabilities.

[130]We have found that the claimant had 7 occasions of sickness absence prior to her probationary review. One was for covid and was disregarded by Ms Mallo. Of the remaining 6 occasions, we have found that three were absence because of her disabilities (those on or starting on 22 September 2022, 11 October 2022 and 18 October 2022). Three occasions were for cold/flu symptoms. Of the three absences for cold/flu symptoms, we have found that two were in part disability-related, because the claimant’s disabilities meant that she had a longer recovery period (those starting on 3 October 2022 and 2 November 2022). The third absence for cold and flu, on 19 August 2022 was an absence of one working day at the start of an episode of cold/flu, so did not involve a long recovery period.

[131]The claimant had three occasions of sickness absence after her probationary review (they were on or starting on 6 February 2023, 3 March 2023 and 12 April 2023). We have found that these three absences were all for disability-related sickness.

[132]Therefore, we have found that other than one period of sickness absence on 19 August 2022, the claimant’s sickness absences were something arising in consequence of disability, either in whole or in part: Page 20 of 29132.1 The absences which were as a result of the claimant’s disabilities themselves (6 occasions) were because the claimant’s medical conditions make her more prone to taking sickness absence than someone without those conditions. Those absences are something arising from disability in full.

132.2 Two absences are in part something arising from disability. Part of them arose from disability because, as result of the claimant’s disabilities, they lasted longer than they would otherwise have done.

[133]Therefore, absences which arose in consequence of disability had a significant influence on the decision to dismiss, and were an effective cause of it. Even looking only at the absences which arose fully in consequence of disability, these had a significant influence and were an effective cause of the dismissal. Ms Mallo took into account all these periods of sickness absence when reaching her decision. It does not matter that she also took other sickness absence into account: the something arising from disability need not be the main or only cause of the unfavourable treatment.

[134]That means that the claimant has established that she was subjected to unfavourable treatment, dismissal, for which an effective reason was sickness absence arising in consequence of disability.

[135]The respondent relies on the justification defence. We need to decide, on an objective basis, whether the treatment (the dismissal) was a proportionate means of achieving a legitimate aim.

[136]The respondent says that its legitimate aims were:136.1 The efficient delivery of public services in an extremely busy unit;

136.2 Equitable management of staff and cost.

[137]We accept that these are legitimate aims.

[138]Did the dismissal of the claimant because of sickness absence levels meet these aims? It would not meet the first aim in the short term, since it left the respondent with one fewer staff member (a valued and competent member of the team) to deliver the services provided by an extremely busy unit. Longer term, if the claimant’s post could be filled by someone who took less sickness absence, the dismissal might meet the first aim, but would require recruitment and training costs for the claimant’s replacement, which would conflict with the second aim, the equitable management of costs. We have found that lengthy training was required for new team members (the claimant’s new colleague was being trained for at least a three month period);

[139]For these reasons, we are not satisfied that the dismissal of the claimant met the respondent’s aims. However, we have gone on to consider whether, if it did, the dismissal was a proportionate means of achieving the respondent’s aims. Page 21 of 29

[140]We have decided that the decision to dismiss was not proportionate in this case, for the following reasons:140.1 The respondent failed to put in place a suitable workstation for the claimant for a period of over 7 months (from 8 August 2022 to 22 March 2023). A sit-stand desk was recommended for the claimant by the respondent’s health and safety advisor, because of her disabilities, to accommodate her when she needed to use her wheelchair. The respondent failed to put the desk in place for over six months after this recommendation was made (12 September 2022 to 22 March 2023). For the whole of her initial 6 month probationary period and for over half of the extended 3 month probationary period, the respondent did not provide the claimant with a suitable workstation as recommended for her because of her disabilities. The reason for the delay after the desks were delivered in November 2022 was because the respondent had decided to provide sit-stand desks for all staff in the team, and this required works being carried out to the office. But only the claimant’s desk had been recommended as part of a DSE assessment. Her desk should have been set up as soon as it was delivered, even if the set up of the desks for other staff had to wait. Even after the three sitstand desks were set up on 22 March 2023, the claimant was not allocated one as her own desk and still had to use other workstations sometimes;

140.2 This focus by the respondent on the equitable management of staff at the expense of considering the claimant’s specific needs as a disabled person was also illustrated by the change in the claimant’s working from home days, which she had found helpful. The change was made ‘on the spur of the moment’ without consulting the claimant, to accommodate another employee for non-disability reasons;

140.3 The respondent failed to record the claimant’s sickness absence properly. The computerised absence record was inaccurate and not relied on. Mr Baulch’s records were inaccurate in a number of ways: we have found that one return to work form wrongly included a Sunday, another failed to account for days when the claimant was working from home and another two incorrectly recorded the return to work date as the same as the last sickness date. Mr Baulch also included covid sickness absence in the total number of days in his probationary review report, meaning that his summary in the first review meeting was that the claimant had taken 30 days absence, when we have found it was actually 18 days when errors and covid are discounted. Although the claimant did have substantial sickness absence, the errors we have identified overstated the extent of it and gave a misleading impression. It would have been proportionate for the respondent to have taken greater care in recording the claimant’s absences (for example by using the computerised record) and in checking that the absences had been Page 22 of 29 correctly recorded when making a decision to dismiss in reliance on that absence;

140.4 Further, when dismissing the claimant, Ms Mallo took into account all of the claimant’s sickness absence, despite there being no sickness absence triggers in place for the first 6 month probationary period. Proportionality would not require the respondent to have disregarded all sickness absence arising from disability but it was not proportionate to take absence into account which arose during a period for which Mr Baulch had not set any triggers, and in respect of which he had expressly told the claimant that there would be no repercussions for sickness absence;

140.5 From March 2023 the claimant asked to reduce her hours to see if that would help her manage her absence. Reduced hours had been offered to the claimant in January 2023 but she did not want to take it up at that time. By March 2023 when she asked to reduce her hours, the respondent decided that it could only action this request if one of the claimant’s colleagues agreed to increase their hours. As none of the claimant’s colleagues agreed to this, she was still working full time by the time of the probationary review meeting which led to her dismissal. The claimant asked again at that meeting and at the appeal about reducing her hours but Ms Mallo said it was too difficult and Mrs Boparai said that a reduction of an hour a day could not be absorbed by the team. However, Mr Baulch had previously offered reduced hours and all the claimant’s colleagues worked reduced hours. When the only alternative to reducing hours was dismissal, it would have been proportionate to have allowed the claimant to reduce her hours to see whether that assisted her to reduce her sickness absence, in combination with the recently set up sit-stand desk. It was not proportionate for the respondent to make the reduction of hours for a disabled employee whose sickness absence was under scrutiny dependant on other part-time staff agreeing to increase their hours. There were other options the respondent could have considered, in particular using bank staff.

140.6 The claimant was a valued and competent member of the team and her manager wanted to continue to work with her. Her work was of a high standard.

[141]The respondent’s dismissal of the claimant had a very significant discriminatory effect on her: it meant that she lost her job. It is not clear that dismissing the claimant, a trained and competent member of the team, met the respondent’s aim of the efficient delivery of public services or the equitable management of costs. Even if it did, we have concluded that there was a less discriminatory way for the respondent to meet that need and accommodate the claimant, an experienced employee. That was to allow her to reduce her hours, give clear sickness absence triggers and give the claimant more time to see if she could manage her attendance with the benefit of the workstation which had been recommended for her. Weighing Page 23 of 29 up the discriminatory effect of the dismissal against the benefit of the dismissal to the employer, we have decided that the unfavourable treatment in this case was not justified.

[142]The complaint in relation to dismissal was presented in time.

[143]The complaint of discrimination arising from disability succeeds. Direct disability discrimination

[144]The first complaint of direct disability discrimination relates to the dismissal. We have already concluded that the reason for the claimant’s dismissal was her sickness absence. The dismissal was not because of the claimant’s disabilities themselves. This complaint fails.

[145]The second complaint of direct disability discrimination relates to the postemployment reference dated 29 June 2023 which was sent by the respondent to Nuffield Health.

[146]The reference amounted to a detriment under section 39 in two respects:146.1 the figure given for sickness absence (46 days on 10 occasions during her probationary period) was incorrect and overstated the absence;

146.2 the claimant’s level of honesty and integrity was assessed as ‘acceptable’. This was a low assessment in an aspect which any employer would regard as essential.

[147]We have considered whether there are facts from which we could conclude that the reference was less favourable treatment because of disability. We have decided that there are:147.1 We have found that the total sickness absence days which Mr Baulch had recorded for the claimant were wrong and the figure of 46 days over-stated the claimant’s absence record;

147.2 Covid absence was included in the total absence figure and the number of occasions on which the claimant was absent when the respondent’s absence management procedure at this time was to discount covid absence;

147.3 The assessment of the claimant’s honesty and integrity was not consistent with Mr Baulch’s assessment of the claimant in either the probationary review report or the investigation report he completed. Both those documents said the claimant was a valued and competent employee and neither raised any concern about honesty or integrity.

[148]We have decided that these are facts from which we could infer that the content of the reference was influenced by the claimant’s disabilities. This means that the burden shifts to the respondent to satisfy us that the Page 24 of 29 reference was in no sense whatsoever because of the claimant’s disabilities.

[149]Mr Baulch’s explanation in relation to the sickness absence figures for the claimant’s sickness absence was that he had used the figures from his investigation report, adding the further bouts of sickness in April and May 2023 (5 days) to the total of 41 days as at March 2023. He said that he included covid absence in this total when he was preparing the report because he wanted to put down the facts for the trust.

[150]We accept that Mr Baulch’s reliance on his earlier report which had incorrectly recorded the claimant’s sickness absence days was the reason why he included the wrong figure in the reference. It would have been obvious to Mr Baulch why it was important to get this right, and what implications it might have for the claimant if it was not right. It would have been better if Mr Baulch had checked these figures more carefully or if a proper record had been kept on the respondent’s computerised absence system. It would have been better if Mr Baulch had discounted the covid absence in the total he gave, as the trust’s procedure required. However, we accept that this aspect of the reference was a mistake and that it was not influenced by the claimant’s disability.

[151]We are not satisfied that there is a non-discriminatory reason for the assessment of the claimant’s honesty and integrity in the reference. We have not found that Mr Baulch raised concerns that the claimant was lone working when it had been agreed that she would not. That was not raised in the probationary review form or the investigation report. We have not found that the claimant worked from home when she had been asked not to. We have found that the only occasion on which this happened after October 2022 was during the covid absence in November 2022. We have found that this was in line with the practice in the trust for staff who tested positive for covid but had no symptoms. The respondent’s HR officer also queried Mr Baulch’s honesty and integrity assessment; Mr Baulch gave no real explanation. We have not found any cogent reasons for the assessment of the claimant’s honesty and integrity as the third of four options.

[152]As we have not accepted the respondent’s explanations for this aspect of the reference, the respondent has not met the burden of proof. We conclude that the reference provided for the claimant was influenced by her disabilities.

[153]There was no question of this complaint being out of time; it was treatment which post-dated the presentation of the claim form and was included on amendment.

[154]The complaint of direct disability discrimination in relation to the reference succeeds. Failure to make reasonable adjustments Page 25 of 29

[155]The claimant relies on the probationary period policy as the PCP. She says that it disadvantages her because she was unable to comply with the attendance requirements of the policy and therefore she was more likely to be (and was in fact) dismissed.

[156]Ms Ibbotson said that the PCP formulated by the claimant was not workable, referring to the decision of the Court of Appeal in Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA. In that case, the Court of Appeal held that an absence management policy was not a PCP in itself. The policy itself did not disadvantage disabled employees because it had a discretion allowing the policy to be modified in a disabled workers’ favour. The appropriate formulation of the PCP was that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions (paragraph 47).

[157]We approach this issue in accordance with the overriding objective and bearing in mind the claimant’s status as an unrepresented party. We have concluded that, reading the PCP and the disadvantage together, it is understandable that the claimant puts her case in line with the second formulation explained in Griffiths, that is that the probationary policy’s attendance provisions required her to maintain a certain level of attendance in order not to be at risk of dismissal. That is a PCP, and it disadvantaged the claimant, because her disabilities meant that she was more likely to have higher sickness absence, as explained by the respondent’s occupational health advisor.

[158]We have considered whether it would have been reasonable for the respondent to take the steps suggested by the claimant to avoid the disadvantage.

[159]The first step suggested by the claimant was that the respondent should have discounted all sick leave connected to her disability. While it was reasonable to expect the respondent in this case to adjust absence triggers, as the occupational health advisor recommended, it would not have been reasonable to expect the respondent to have discounted all disability-related sick leave. This would have removed the claimant from the scope of all absence management by the respondent. She could have been permanently absent, without the respondent being able to address her absence. It would not be reasonable to expect the respondent to take that step.

[160]Similar reasoning applies in relation to the third step suggested by the claimant. This was that the respondent should have extended the number of sick days allowed under the Policy, so that the dismissal process was not triggered. The respondent did extend the sickness triggers during the extended probation period. It would not be reasonable to expect the respondent to extend the number of sick days allowed to the extent that it would avoid the dismissal process being triggered at all. Again, this would remove the claimant from the scope of the respondent’s procedures. It was reasonable for the respondent to consider the claimant’s absences, and to use the probationary review process to do so. We have decided that Page 26 of 29 dismissal of the claimant was not proportionate in these circumstances but we have not concluded that it would have been a reasonable adjustment to adjust the triggers to avoid the dismissal processes altogether.

[161]The second step suggested by the claimant was that the respondent should have taken into account that, even on sickness absence not directly connected to her disabilities, she takes longer to recover from other illnesses due to those disabilities. It is an essential part of a complaint of failure to make reasonable adjustments that the respondent knew or could reasonably have been expected to know that the claimant was likely to be placed at the disadvantage. The occupational health advisor did not advise the respondent of this aspect of the claimant’s disabilities. The claimant did not tell the respondent about it until her appeal. Therefore, prior to the appeal, when it was considering the claimant’s sickness absence for other illnesses, the respondent was not aware of this particular disadvantage which the claimant was under. Therefore, the duty to make this adjustment did not arise. At the appeal, Mrs Boparai did not take any sickness absence for other illnesses into account. She only considered the disability-related sickness absence in the extended probationary period. Therefore at the appeal stage, the claimant was not disadvantaged in this way, and the duty to make this adjustment did not arise.

[162]The complaints of failure to make reasonable adjustments fail for these reasons. Remedy hearing

[163]As the claimant’s claim has succeeded in part, a remedy hearing will take place. Case management orders for that hearing will be sent separately. Employment Judge Hawksworth Date: 5 August 2024 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ Page 27 of 29 Appendix - List of issues

[1]Direct disability discrimination (Equality Act 2010 section 13)1.1 Did the respondent do the following things:1.1.1 dismiss the claimant;

1.1.2 on 3 July 2023 did David Baulch send a reference dated 29 June 2023 to Nuffield Health which resulted in the claimant’s job offer from Nuffield Health being withdrawn (this complaint was added on amendment on 30 April 2024).

1.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. The claimant says they were treated worse than her predecessor in the role of Medical Laboratory Assessor. In the alternative, the Tribunal will consider a hypothetical comparator.

1.3 If so, was it because of disability?

[2]Discrimination arising from disability (Equality Act 2010 section 15)2.1 Did the respondent treat the claimant unfavourably by dismissing her?

2.2 Did the following things arise in consequence of the claimant’s disability:2.2.1 The claimant’s medical conditions making her more prone to taking sickness absence than someone without those conditions; and,

2.2.2 The claimant’s period of recouperation from illness generally being longer than those without her disabilities.

2.3 Did the respondent dismiss the claimant because of the number of sickness absence days she had taken?

2.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:2.4.1 The efficient delivery of public services in an extremely busy unit;

2.4.2 Equitable management of staff and cost.

2.5 The Tribunal will decide in particular: Page 28 of 292.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

2.5.2 could something less discriminatory have been done instead;

2.5.3 how should the needs of the claimant and the respondent be balanced?

2.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[3]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)3.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

3.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 3.2.1 The Probationary Period Policy.

3.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that:3.3.1 She was unable to comply with the attendance requirements of the Policy;

3.3.2 Therefore, she was more likely (and was in fact) dismissed?

3.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

3.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:3.5.1 The respondent should have discounted all sick leave connected to her disability;

3.5.2 The respondent should have taken into account that, even on sickness absence not directly connected to her disabilities, she takes longer to recover from other illnesses due to those disabilities;

3.5.3 The respondent should have extended the number of sick days allowed under the Policy, so that the dismissal process was not triggered.

3.6 Was it reasonable for the respondent to have to take those steps and when?

3.7 Did the respondent fail to take those steps? Page 29 of 29

[1]The figures for both interest elements are different to those we gave at the hearing. In this written judgment we have made a correction under rule 69 of errors in the interest calculations we gave at the hearing. We have explained this in more detail below. The interest corrections have also affected the figures for the total award and the grossing up element, these have also been corrected in this written judgment. Page 1 of 10 to dismissal and direct disability discrimination in relation to provision of a reference.

[2]There was a bundle prepared for the remedy hearing. The claimant, her husband and her mother-in-law prepared witness statements. The respondent’s counsel did not have any questions to ask the witnesses about their statements. The tribunal asked the claimant some questions about the degree she was studying for while working for the respondent.

[3]After hearing submissions by both parties, we took some time for deliberation and then told the parties our decision and reasons. The claimant asked for these written reasons to be provided. The issues for us

[4]The issues on remedy were helpfully set out in the claimant’s schedule of loss and the respondent’s counter schedule of loss. The counter schedule of loss included in table form the claimant’s claim in respect of each head of loss and the respondent’s response to it. That document helped us to understand the areas of dispute between the parties. Like the parties in their submissions, we worked through the items listed in those documents to determine the issues for us on remedy. The law

[5](In our reasons given at the hearing we explained these legal principles in summary only. A fuller outline is included here.) Compensation for discrimination

[6]Section 124 of the Equality Act 2010 says: “124 Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.

(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the Page 2 of 10 purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate.

(4) Subsection (5) applies if the tribunal— (a) finds that a contravention is established by virtue of section 19, but (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant.

(5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c).

(6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.

(7) If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation, the tribunal may— (a) if an order was made under subsection (2)(b), increase the amount of compensation to be paid; (b) if no such order was made, make one.”

[7]Section 124 of the Equality Act allows for us to make a declaration, which we have done in our liability judgment, to order the payment of compensation and to make an appropriate recommendation. No recommendations were sought by the claimant, and the focus here is on compensation.

[8]The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.

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

1994 ICR 918

, EAT). In other words, the aim is that the claimant should be put in the position she would have been in if the discrimination had not occurred. This requires the tribunal to look at what loss has been caused by the discrimination.

[10]Loss includes financial losses and injury to feelings.

[11]In Prison Service and others v Johnson

[1997] ICR 275

EAT, the EAT set out the following principles that the tribunal should consider in making an award for injury to feelings: Page 3 of 10 “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to “untaxed riches.” (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”

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

[2002] EWCA Civ 1871

the Court of Appeal identified three broad bands of compensation for injury to feelings awards. The Presidential Guidance on injury to feelings sets out updated Vento bands: for claims presented on or after 6 April 2023, as the claimant’s was, the lower band is £1,100 to £11,200 (less serious cases); the middle band £11,200 to £33,700 (cases that do not merit an award in the upper band); and the upper band £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.

[13]The injury to feelings award is assessed by reference to the injury to the claimant’s feelings, not to the nature or seriousness of the respondent’s conduct. Mitigation of losses

[14]A claimant is under a duty to mitigate their losses. The burden of proof is on the respondent to show that they have not done so. As explained in Cooper Contracting Ltd v Lindsey [2015]

UKEAT/0184/15

, mitigation is not some broad assessment on which the burden of proof is neutral. If evidence as to mitigation is not put before the tribunal by the respondent, it has no obligation to find it. What has to be proved is that the claimant acted unreasonably; the claimant does not have to show that what they did was reasonable. Aggravated damages

[15]Compensation may also include an award in respect of aggravated damages. Aggravated damages are compensatory not punitive. Page 4 of 10

[16]In Commissioner of Police of the Metropolis v Shaw EAT 0125/11, Mr Justice Underhill (then President of the EAT) set out broad categories of case in which aggravated damages might be awarded. These include:16.1 Where the discriminatory act is done in an exceptionally upsetting way, that is where the respondent has behaved in a ‘high-handed, malicious, insulting or oppressive manner’;

16.2 Where subsequent conduct adds to the claimant’s injury, for example where the respondent conducts tribunal proceedings in an unnecessarily offensive manner or ‘rubs salt in the wound’ by plainly showing that it does not take the claimant’s complaint of discrimination seriously.

[17]When making awards for non-pecuniary losses, the tribunal must take care not to conflate the different types of award or to allow double recovery. Interest

[18]Interest on discrimination awards is provided for in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The regulations give the power to award interest on the claimant's losses as part of the compensation for discrimination. For past financial losses, interest normally runs from the "mid-point" between the date of the discrimination and the date of calculation (regulation 6(1)(b)). For injury to feelings, interest normally runs from the date of the discrimination to the date of calculation (regulation 6(1)(a)). Findings of fact and conclusions

[19]This section includes relevant findings of fact made in our liability judgment and our findings from the remedy hearing, together with our conclusions and calculations.

[20]The claimant Mrs Ware was employed by the respondent from 8 August 2022 until her dismissal took effect on 12 May 2023. Her claim was presented on 23 June 2023.

[21]Mrs Ware did not have two years’ service at the time of her dismissal and she did not bring an unfair dismissal claim. Therefore, there is no basic award or award for loss of statutory rights. Both are elements of the award that applies in an unfair dismissal complaint and they do not arise here.

[22]The same applies to the claim for an award in respect of a failure to give written reasons. That is a complaint that is only available to someone with two years’ service so does not arise in this case.

[23]That deals with points 1, 6 and 13 of the counter schedule. Past loss of earnings Page 5 of 10

[24]Point 2 in the counter schedule is about the claimant’s past loss of earnings. We accept the figure for net weekly loss of earnings in the respondent’s counter schedule which is £371 net weekly pay. The claimant’s schedule has a slightly lower figure; we accept the figure the respondent has given us.

[25]After her dismissal, Mrs Ware had a period from 13 May 2023 to 15 September 2024 when she was not working. She claims past losses for this period. That is a period of 70 weeks and 1 day (70.14 weeks). We do not accept, as the respondent invited us to, that Mrs Ware failed to mitigate her losses during this period. We do not find that Mrs Ware acted unreasonably in relation to her job search during that period. We accept, based on her jobsearch spreadsheet, that she applied for a large number of roles over this period and had at least 25 interviews. We accept that it was not unreasonable to apply for fewer jobs during the period when she had a job offer in hand, as when she was offered a role with Nuffield Health, and that it was also not unreasonable for her to have applied for fewer jobs when she was working in a temporary role, as when she was temping for Circle Health.

[26]We have accepted that the claimant is entitled to compensation for lost earnings for that 70.14 week period at the rate of £371 per week. That gives a total of past losses of £26,021.94 (before taking account of earnings from alternative employment).

[27]In addition, we accept that the claimant spent £42 on expenses connected with her job search. Mrs Ware’s schedule showed that many of her interviews were face to face and we accept that would have meant she incurred travel expenses. We accept that those expenses may not be receipted.

[28]When calculating compensation for past losses and expenses, we give credit for earnings received by Mrs Ware from her alternative employment, that is temporary work with Circle Health during the period from September 2023 to February 2024. We find, based on the payslips at pages 113 and 116, that Mrs Ware was paid £11.50 per hour in this role. Those payslips show net pay of £863.50 and £749 for September to November 2023. There are payslips missing; we accept from the figures in Mrs Ware’s record of hours worked (page 215) that she worked a further 43 hours in the period from December 2023 to February 2024. At £11.50 an hour that gives a gross figure of £494.50. We make no deduction for tax as the claimant’s earnings for the tax year April 2023 to April 2024 appear very likely to have been below the personal tax allowance of £12,570 and the national insurance weekly threshold.

[29]In total, the claimant’s earnings from alternative employment with Circle Health were £2,107. We deduct that figure from the figure that we reached for past losses and expenses, meaning that the award in respect of past losses is £23,956.94. Interest on past losses Page 6 of 10

[30]We award interest on past losses and expenses, at the rate of 8% per year over the period from the mid-point between the date of the discriminatory dismissal (12 May 2023) and the date of the hearing (15 November 2024). At the hearing we wrongly calculated this period as 245 days. In fact it is 277 days. We have corrected this slip in these written reasons, under rule 69. The table below shows how we have calculated the interest on past losses and expenses, which is £1,454.48. Table 1: interest on past losses and expenses Date of discrimination 12 May 2023 Date of calculation 15 November 2024 Number of days 554 Number of days to midpoint 277 Daily rate of interest 0.08 x £23,956.94/365 Total interest calculation 277 days x daily rate of interest Total interest £1,454.48 Future losses

[31]The next head of loss for us to consider is future loss, point 4 in the counterschedule.

[32]In this case, we are assessing future loss of chance. Mrs Ware was studying for a degree while in her role with the respondent. The degree could only be completed in parallel with employment in healthcare. As a result of her dismissal, Mrs Ware lost the opportunity to complete her degree and then apply for a higher graded band 5 role. She was due to complete her degree by June 2025. We find that after completion of her degree, it would have taken a further six months to identify and successfully apply for a band 5 role, so that she would have been able to start a band 5 role by about January 2026.

[33]That would have increased Mrs Ware’s earnings by between £6,000 and £12,000 a year, based on the difference between the earnings she received in her role with the respondent and the range of potential earnings in a graduate level band 5 role. We have taken the mid-point of that range, £9,000. For those reasons, we have reached the conclusion that the claimant has lost the chance of earning around £9,000 a year more from about January 2026.

[34]Assessing future loss and loss of chance is not a certain process. We are constructing a hypothetical future. We need to make sure that we take into account factors that might have meant that, even if the claimant had not been dismissed, she might for some other reason not have completed her degree, or left the respondent or not found a suitable band 5 role. There are all sorts of factors that might mean the claimant would not have moved into a band 5 role in January 2026 in any event. To reflect those uncertainties, we have concluded that a 50% reduction should be applied to the loss of chance calculation. Page 7 of 10

[35]We also recognise that the further into the future our assessment goes, the more difficult it is to predict what would have happened and what continuing losses arise from the dismissal. For example, the claimant may in future obtain qualifications enabling her to move into a job with a salary similar to a band 5 role. We have therefore awarded compensation in respect of this loss of chance to reflect a period of 18 months from January 2026 to June 2027. We have decided that it is too speculative for us to make an award beyond that.

[36]The calculation in respect of future losses arising from the claimant’s loss of chance to complete her degree and move to a band 5 role is therefore 1.5 x £9,000 that is £13,500, with a 50% reduction to take account of uncertainties, that is £6,750 in total. Pension loss

[37]Next we consider pension loss, point 5 in the counter schedule. We have used the contributions method to assess pension loss in this case, because of the claimant’s age and short length of service with the respondent. We also decided that it was proportionate to take this approach as neither party provided us with the information required for us to assess pension loss on the complex basis.

[38]We accept the respondent’s figure for weekly loss of employer pension contributions of £76.43. We have multiplied that by the number of weeks in the period of loss that we are looking at, 70 weeks and 1 day, that is 70.14. Total pension loss is £5,360.80. Personal injury and aggravated damages

[39]We have decided not to make separate awards for personal injury and aggravated damages. There is always a danger of compensating twice for the same injury when making separate awards for personal injury, aggravated damages and injury to feelings.

[40]Further, we did not have any specific medical evidence as to whether and how the discriminatory treatment impacted on Mrs Ware’s health. While this does not mean we cannot make an award, it makes it difficult for us to assess the appropriate level of a personal injury award. We have decided to take account of Mrs Ware’s evidence about the impact on her mental health as part of the injury to feelings award, rather than making a separate award for personal injury.

[41]In addition, we decided this was not a case where a separate award of aggravated damages was merited. The respondent’s conduct could not be described as high-handed, malicious, insulting or oppressive manner, and we have not concluded that it fell into the other categories explained in Commissioner of Police of the Metropolis v Shaw. Injury to feelings Page 8 of 10

[42]We accept the evidence provided by Mrs Ware in her statement that she found the dismissal from her job with the respondent, which she loved, one of the worst and most distressing times of her life and that she suffered subsequent anxiety and stress as a result. We accept that she found the dismissal devastating and that her mental health took a battering. We accept that she was also, as she explained in her witness statement, upset by the discriminatory assessment of her honesty and integrity in the reference. Mrs Ware’s statement was supported by the unchallenged statements of her family members.

[43]We have decided that the injury to feelings award should be in the middle of the middle band, and we award £22,500. Interest on injury to feelings award

[44]We award interest on the injury to feelings award, at the rate of 8% per year over the full period from the date of the discriminatory dismissal (12 May 2023) to the date of the hearing (15 November 2024). At the hearing we wrongly calculated this period as 491 days. In fact it is 554 days. We have corrected this slip in these written reasons, under rule 69. The table below shows how we have calculated the interest on the injury to feelings award, which is £2,732.05. Table 2: interest on injury to feelings Date of discrimination 12 May 2023 Date of calculation 15 November 2024 Number of days 554 Daily rate of interest 0.08 x £22,500/365 Total interest calculation 554 days x daily rate of interest Total interest £2,732.05 University fees

[45]The claimant asked us to compensate for the fees she paid for her university degree which she could not complete because of her dismissal.

[46]We do not make any award in respect of those fees. They are not losses which flow from the discrimination. Reimbursing the fees would not put the claimant back in the position that she would have been in if the discrimination had not happened. We have instead, as we have explained, taken into account the loss of chance to complete the degree in our award for future losses. Discriminatory reference

[47]We make no separate award in respect of the discriminatory reference. There was no evidence before us that claimant had additional financial losses from the withdrawal of the job offer from Nuffield Health over and above the losses arising from dismissal from the respondent. In terms of injured feelings, we have taken the injury arising from the discriminatory element of the reference into account in the injury to feelings award. Page 9 of 10 Summary

[48]In summary, the total of these elements of the award is £62,754.27. Table 3: summary Past losses £23,956.94 Interest on past losses £1,454.48 Future losses £6,750 Pension loss £5,360.80 Injury to feelings £22,500 Interest on injury to feelings £2,732.05 Total £62,754.27 Grossing up for tax

[49]Finally, we conducted a grossing up exercise to ensure that, after tax is paid on the award, Mrs Ware receives the amount that we have awarded. This is a broadbrush exercise, it is not intended to be precise.

[50]We have assumed that the first £30,000 of the award will be tax free as it is a payment relating to termination of employment. This means that £32,754.27 of the award will be taxable. We have assumed that Mrs Ware’s salary from her new role will exhaust her personal allowance in the current tax year. Therefore, we have assumed that the £32,754.27 will be taxable at the 20% tax rate. To ensure that, after paying tax at 20% on this part of the award, Mrs Ware receives £32,754.27, an additional £8,188.57 is added to the award to represent the tax payable. The total award is therefore £70,942.84. Employment Judge Hawksworth Date: 13 December 2024 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ Page 10 of 10