Mrs G Yearwood v Department of Work and Pensions: 3307407/2018

EMPLOYMENT TRIBUNALS

Case No 3307407/2018

Between

Mrs G YearwoodClaimant

Department of Work and PensionsRespondent

Before

Employment Judge Gumbiti-Zimuto

Mrs M Hodgson (instructed by counsel) for claimant

Mr John-Paul Waite (instructed by counsel) for respondent

Date 26 March 2021

JUDGMENT

The claimant was a disabled person from November 2013.

REASONS

[1]The claimant has made a witness statement of 33 pages dated 20 January 2019. The claimant has made two further statements. The first is titled “disability impact statement dated 8 March 2019 running to 13 pages. The second is also titled “disability impact statement” is dated 19 March 2019 running to 17 pages. The claimant also gave evidence on the question whether she is disabled within the meaning of the Equality Act 2010 (“the 2010 Act”). In all these statements the claimant gives little explanation of the impact of the impairment on her ability to carry out day-to-day activities.

[2]The claimant makes reference to a period in 2010 when she was very unwell as a result of mental health issues and that she has had mental impairment from about 2013/2014 until her dismissal in 2018. The respondent challenges this and suggests that the claimant’s medical records show that she has had isolated periods of work-related stress.

[3]In discussing her circumstances with occupational health, the claimant is reported as saying that she “was not sleeping well” and “she has problems with memory and concentration”.1 1 OH Assist report dated 6 December 2017 (p99) (J) Page 1 of 9

[4]The claimant’s medical records from 2010 to 2018 have been produced. The medical records make many references over those years to the claimant suffering from stress at work.

[5]On 4 June 2013 the claimant’s medical record states: “Has noted short term memory loss at work”, there are also occasions when the claimant has told her doctor about suffering headaches when consulting about stress at work. The medical records do not otherwise clearly reference how the claimant is affected in carrying out normal day to day activities because of this.

[6]In a letter dated 8 July 2020, responding to a request to say “whether her stress at work is capable of affecting her daily life”, the claimant’s doctor states that the claimant has been “documented to suffer with memory loss, tension headaches, atypical chest pain and voice hoarseness as well as multiple somatic symptoms… In my opinion there is no doubt that her daily life is affected by the effects of on-going chronic work-related stress.” Beyond this there is no further explanation of the impact on the claimant’s ability to carry out normal day-to-day activities.

[7]The claimant’s doctor has not been asked to answer the question whether the claimant has a physical or mental impairment, that has a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities, i.e. to address wording taken from the definition of disability in the 2010 Act. Additionally, there is no detail to understand the doctor’s letter in the context of the 2010 Act.

[8]In her witness statement the claimant says that work related stress affects her daily life causing her to have memory loss, self-neglect, loss of appetite, struggle to get out of bed, loss of confidence, difficulty climbing stairs, tearfulness, shortness of breath, her starts to beat fast, she gets nervous and scared. The claimant gives some examples of how these symptoms manifest themselves in her life in paragraph 42 of her witness statement, she has to write things down at work, on one occasion she left home wearing odd shoes, has caught the wrong bus after her mind went blank, and she does not want to cook, eat or wash. The claimant says that she has panic attacks.

[9]When seen by Dr Shamim Ahmed on 18 October 2013 the claimant showed no signs of self-neglect (p132). Dr Ahmed records that the claimant’s sleep is disturbed and that her “forgetfulness is due to anxiety state and low concentration.” The claimant at the time was complaining that she “forgets what she was thinking or doing and at certain times forgets some familiar names” she stated that “this has been going on for the last year and it may happen two or three times a week”. (J) Page 2 of 9

[10]In her impact statement2 (p61) the claimant says that she was seen by OHS 6 December 2017 and mentioned then that she had “been often forgetful and muddled since being stressed from work” she also mentioned having difficulty sleeping.

[11]The claimant was not off sick in the period from 2014 until September 2017. In In September 2017 the claimant was again off work due to work related stress until her dismissal in January 2018.

[12]A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. Substantial means more than minor or trivial. Assistance with the determining disability can be found in “Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“the Guidance”). “A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.” 3

[13]In answering the question whether the claimant is a disabled person for the purposes of section 6 of the 2010 Act I have to consider what is it that the claimant cannot do as a result of her impairment and is it substantial.

[14]The impairment that the claimant relies on is a mental impairment. In particular the claimant relies on depression and work-related stress. The claimant considers that these matters align, and it was put by counsel for the claimant in the following way; “underlying clinical depression exacerbated by work related stress”.

[15]The respondent says that the claimant has not established that she suffers from a relevant impairment and/or that this has a substantial adverse effect on her ability to carry out normal day-to-day activities and/or that any such impairment is long term. 2 Dated 8 March 2019 3 Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”). (J) Page 3 of 9

[16]The claimant objected to the way that the respondent’s case is put in challenging the claimant’s assertion that she is a disabled person, saying that the respondent was going back on a concession previously made when it was stated in an email of 1 October 2019 that “it is accepted that the claimant was absent by reason of work related stress and that she has suffered from stress on previous occasion during her employment.” I considered the claimant’s objection in the context of an application for a postponement which I refused. The question I have to decide, however it is argued, is whether the claimant was a disabled person within the meaning of section 6 of the 2010 Act.

[17]The issues to be decided in this preliminary hearing were identified in paragraphs 5.1, 5.2 and 5.3 of the record of case management summary this document does not indicate that a concession was then being made in the matters to be determined in deciding whether the clamant was a disabled person. The claimant’s submissions

[18]On impairment, “4.1.1. The claimant relies upon a history of depression and work-related stress since 1999”; “4.1.2. …the claimant’s evidence … was that she suffered from an underlying medical condition, depression, which was constant, …”; “4.1.4 …the symptoms experienced by the claimant …I include … anxiety, low mood, memory loss, and inability to concentrate which affects not only her home activities , such as sleeping, eating, taking care of herself, but also include perceptions of her abilities and self-worth..”

[19]On substantial, the claimant firstly says that for the purposes of the Equality Act 2010 “substantial” means “more than minor or trivial” (section 212 (1)). The claimant’s evidence points out that she struggles to get out of bed, has periods of self-neglect, suffers loss of appetite, loss of selfconfidence, shortness of breath, voice hoarseness due to anxiety, her ability to socialise is affected, there is an effect on her professional life including loss of memory and inability to concentrate. These matters are all listed by the claimant as the effects of the impairment on the “claimant’s day to day life”. The claimant relies on the reports made to her GP and other medical professionals including the respondent’s occupational health advisers.

[20]On whether the impairment is long term, The claimant refers to having a depressive illness going back to 2004. She accepts that medical sickness certificates relate to specific times of work-related stress. The claimant submits that under the Equality Act 2010 conditions which recur can qualify as long term if they recur or are likely to recur. The respondent’s submissions

[21]The respondent contends that the Claimant failed to discharged the burden of demonstrating that she was at any material time a disabled (J) Page 4 of 9 person for the purposes of section 6 of the Equality Act 2010 because(a) she has failed to give a credible account of the nature of her symptoms, the duration of those symptoms or their effect on her normal day to activities and

(b) on a proper construction of her witness statements and the medical evidence the Claimant does not suffer from a relevant impairment and/or one that has a substantial adverse effect on her ability to carry out normal day-to-day activities and/or an impairment which is long term. The evidence describes short term episodes of stress which are attributable to work events.

Conclusions

[22]Does the claimant have a mental impairment, namely mental health issues described as work-related stress?

[23]The respondent’s contention is that the alleged mental health impairment relied on by the Claimant is described in the Tribunal’s case management summary on 30.11.18 as “stress at work”. The respondent goes on that it is not open to the Claimant to introduce a different alleged impairment at this stage, such as “clinical depression”. The respondent does not accept that the claimant’s medical records show that the claimant is suffering from an underlying medical condition which makes her more vulnerable to stresses at work or more likely to react to such events.

[24]On the evidence produced on behalf of the claimant the respondent says the following: “The starting point for most assessments of disability by a Tribunal is a credible description by the person concerned of the effect of any claimed impairment upon their normal, day to day activities. … the Claimant has not given a credible description of her symptoms, their duration or their effect on her normal day to day activities.”

[25]The claimant’s evidence, it is said by the respondent, is implausible in parts- reference is made to the way that the claimant answered questions in respect of paragraph 42 of her witness statement. The respondent’s closing submissions clearly set out how the claimant’s evidence in parts is hard to credit and appears in parts exaggerated, an example is set out at paragraph 9 of the respondent’s submissions.

[26]The failure to address matters which go to the definition in a simple and clear way describing the nature of the impairment and the effect it has on the claimant’s ability to carry out normal day-to-day activities has disadvantaged the claimant. Her statements address her grievances concerning her treatment by her employers and managers and also extensively explain the symptoms that the claimant has. What the witness statement is not so clear on is the effect that the impairment has on her ability to carry out day to day activities. Thus in the evidence she gave while being questioned the claimant expanded on this in some areas and gave evidence which was criticised by the respondent in its closing submissions, the effect of which is that it is said that the claimant’s evidence in significant parts is not credible. (J) Page 5 of 9

[27]While there is some validity in these criticisms of the way that the claimant expresses herself I am satisfied that it has been shown so that I can satisfied on balance of probability that the claimant has a mental impairment. In coming to this conclusion, I take into account that the term physical or mental impairment is to be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness.4 A disability can arise from a wide range of impairments which can be anxiety, low mood, depression, or work-related stress.

[28]The claimant has shown that she suffers from work-related stress, this is evidenced by the account she gives of her impairment and also by the references to work- related stress through her medical records. While the claimant goes further and says that she has a underlying medical condition, depression, which was constant, I am not satisfied that the evidence establishes that.

[29]The principle matters that I have to consider are whether the impairment that the claimant has was substantial and long-term in its adverse effect on the claimant’s ability to carry out normal day-to-day activities.

[30]In determining whether a person is disabled all factors which form part of the definition should be considered. The “Guidance” states that the various sections should not be read in isolation but must be considered together with all the other sections.

[31]Does the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? If so, is that effect long term?

[32]The disadvantage to the claimant arising from the way that the claimant’s statements are drafted makes it particularly difficult to assess whether the impairments that the claimant has were substantial or indeed whether they were long term. The respondent says that the claimant has failed to give a credible account of the nature of her symptoms, the duration of those symptoms or their effect on her normal day to activities.

[33]The claimant contends that it is relevant that the claimant was dismissed for her inability to attain suitable attendance levels at work in a reasonable time showing that she was not capable of participating in professional life. The claimant points to exceeding her allowance of sick leave in 2014 and concern that about the claimant’s absences expressed in a letter from 9 June 2010.

[34]The claimant relies on the impact statement of 8 March 2019 referring to paragraph 2 as detailing the effects of the impairment. In that paragraph the claimant refers to “constant headaches, constant chest pains, low 4 Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability a paragraph A3. (J) Page 6 of 9 mood, feeling unwell and struggling to get out of bed”. The claimant also refers to paragraph 2 of her impact statement of 19 March 2019 where the claimant additionally refers to “losing the ability to think straight and memory loss”, irregular sleep, dizziness, loss of confidence, low morale, and thinking that everything that goes wrong a work is her fault. The claimant again refers to loss of memory, adding inability to concentrate at work, erratic heartbeat, self-neglect, loss of appetite, shortness of breath, difficulty climbing the stairs, tearfulness, and not wanting to socialise.

[35]Most of the matters that the claimant refers to are a list of symptoms rather than a description of the effect it has on the claimant’s ability to carry out normal day to day activities. Except for having difficulty getting out of bed, not wanting to socialise, and difficulty going up stairs the claimant fails to address what she cannot do as result of the impairment. The claimant does not give examples of the impact of the various listed symptoms on her actions or how they prevent her actions in the context of day to day activities, making it difficult to assess the scale of the impact.

[36]As the claimant has not clearly set out the normal day to day activities affected by the symptoms that the claimant describes. To arrive at the conclusion that the cumulative effect of the disparate matters that the claimant is referring is substantial requires me to draw inferences from what she says.

[37]The way that the claimant’s witness statement has been drafted makes it clear that there were periods when the effect of the impairment was substantial, it prevents her from working for significant periods of time. The evidence does not suggest that the effects on the claimant are consistent or constant outside those periods of absence from work. The medical records show periods when the claimant is “not acutely ill”, “not unwell” and “generally well”. The medical records show that there were periods when the claimant was unfit to work as a result of the impairment. The claimant’s own evidence is that there were periods when the effect of the impairments was severe, and her evidence is that these were the times when she sought assistance from her GP. I am satisfied that during these periods at least the effect of the impairments was substantial, it was more than minor or trivial.

[38]From the evidence it is possible to infer that when the claimant is not well enough to work the effect of the impairment of work-related stress is substantial. If the claimant is not well enough to go to work, she cannot do the normal day-today activities involved in going to work. It was during these periods that I understood the claimant’s evidence to be that she had irregular sleep, unable to get up, did not eat properly, was self-neglecting and suffering all the listed symptoms to such an extent that she sought medical assistance and was unable to work. When the claimant is at work the picture is not so clear the claimant’s evidence does not credibly and clearly set out the impact of the impairment when the claimant is fit to work. (J) Page 7 of 9

[39]The claimant does not credibly set out the duration of the adverse impact, she says it was constant, but this in my view is unlikely to have been the case. The claimant herself gives evidence which showed that her condition got better and got worse. The medical evidence makes reference to periods when the claimant is “not acutely ill”, “not unwell” and “generally well”.

[40]The claimant states in her written submissions that “while it is accepted that medical sickness certificates relate to specific times of work related stress, it is submitted that, under the EQA conditions which recur can qualify as long term if they recur or are likely to recur… the claimant’s condition has clearly recurred as evidence by the various medical certificates.”

[41]The respondent contends that the “Evidence describes short term episodes of stress which are attributable to work events rather than any underlying impairment or medical condition which qualifies as a disability under the Act.”

[42]Schedule 1 Part 1 paragraph 2 provides that the effect of an impairment is long-term if(a) it has lasted 12 months,

(b) it is likely to last for 12 months, or

(c) it is likely to last the rest if the life of the person affected. None of these apply in the claimant’s case. Paragraph 2(1) says that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if it is likely to recur. Likely in this context means could well happen.5 The Guidance makes clear that a person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. The effect may disappear temporarily.

[43]Has the evidence shown that the claimant had periods when there was a substantial adverse effect on the claimant's ability to carry out normal dayto-day activities, lasting less than twelve months that was likely to recur and therefore is to be treated as continuing to have that effect?

[44]The claimant had periods of absence from work in 2010 which appear from medical records to have been around March to July. This absence is due to stress at work, or work-related stress. This arises in circumstances where events at work occur which the claimant considers amount to unfair treatment of her. Then there was a further period in 2013 from about November 2013 to February 2017 when the claimant was off work due to stress at work. These events again arise in circumstances when the claimant is in conflict with colleagues who she considers were colluding to remove her from her employment and again treating her unfairly. Then in 2017 the claimant was again off work due to stress at a work from around September 2017 until around January 2018 in similar circumstances. 5 See section C3 of the Guidance. (J) Page 8 of 9

[45]All these periods of stress at work appear to have been at times when the claim was enduring difficulties in the workplace. There is no underlying clinical cause for the absences. The respondent says that these were isolated reactions to specific life events culminating in sporadic absences of a limited duration. However, there does not need to be clinical cause for the absences. The question is whether the impairment has a substantial adverse effect on the claimant’s ability to carry out normal dayto-day activities, ceases to have a substantial adverse effect on a the claimant’s ability to carry out normal day to day activities but is likely to recur.

[46]Taking account of all the evidence including the claimant’s evidence that she was able to employ strategies to enable her to keep working and she was able to do so successfully for extensive periods of time. There were periods when the claimant suffered from work-related stress that meant that she was unable to continue to work and was signed off sick. This happened on three occasions in the period from 2010 to 2018. The evidence shows that the impairment ceased to have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities, but it did recur twice. I am satisfied that from about 2013 the claimant was therefore a disabled person.

The facts

[47]That document is a compensation certificate for employees dismissed for unsatisfactory attendance/poor performance. No doubt, having decided to dismiss the claimant, Ms Heffernan was seeking to justify 100% compensation. However, that document, in our judgment, does provide insight into the real reason why the claimant was dismissed.

[48]The document states:- “Although there have been attempts to support Grace with her learning and development by her line manager, there has been no improvement in her performance.” And “Grace’s general attitude to work is below the level expected and relationship with previous line managers and colleagues is strained.”

[49]The clear impression we gained from the evidence of all the respondent’s witnesses was that they were all seeking to justify their decision effectively on the basis that, as Ms Maifredi put it, they thought that even if the claimant returned she would be unable to sustain an acceptable level of attendance. Ms Maifredi referred to the changing nature of the claimant’s job in that new benefits and new ways of working were being introduced and referred to the claimant having difficulty retaining information which caused her to find the role very stressful. Ms Maifredi told us that she did not get the sense that the stress would be resolved.

[50]We have been shown examples of the claimant receiving extensive training during the course of 2017. Further, the claimant raised allegations of bullying and harassment against her line manager, Ms Long. However, in our judgment, these issues do not form part of the case before us. The claimant was not being managed for performance issues but was being dealt with under the attendance policy. The claimant has been found to be a disabled person at all material times and that the respondent was or could reasonably be expected to have known this.

[51]We find that the real reason that Ms Long and her senior managers decided to recommend the claimant for dismissal was because she was perceived to be a difficult employee who, from their perspective, was struggling to adapt to new working practices and who had gone off sick with stress at work as a result. We find that her sickness absence was used as a pretext to dismiss her.

[52]Thus, it is the respondent’s case and we find that Ms Long made the decision to refer the claimant to a decision maker and to recommend that the claimant should be dismissed on 7 December 2017. The 7 December 2017 is only 10 weeks and 1 day after 27 September.

[53]On 7 December Ms Long requested Ms Fealy write a letter to the claimant and the referral letter to Ms Nicola Mahoney. We have seen a letter dated 7 December 2017 to the claimant from Ms Fealy. This summarises what had been discussed at the meeting on 30 November 2017. The letter records that in the telephone call on 4 December the claimant had asked about whether she could have annual leave, special leave or flexi leave between then and when she was aiming to return to work on or about 15 January 2018.

[54]The claimant’s evidence was to the effect that the suggestion she request annual leave came from Ms Fealy. The claimant’s request was that she take one-week annual leave, one-week flexi leave and one-week unpaid leave. Ms Long explains that she refused these leave requests as they were made late, covered the Christmas period and to have agreed them might have disadvantaged other employees.

[55]The issue concerning requests for annual leave is somewhat confusing given the claimant had a doctor’s fit note covering her sickness absence until 10 January 2018. We cannot really understand why the claimant would have made an application for leave when she was in receipt of full sick pay until 10 January 2018. We find that the probability is that the claimant was prompted by Ms Fealy to apply for leave as a way of placating her employer as she would then not be recorded as being in receipt of sick pay. Thus, it is, and we find as a matter of fact, that the respondent did refuse the claimant’s request for leave.

[56]The letter to the claimant dated 7 December 2017 concludes as follows: - “As per previous conversation I stated that the department would review your absence and if it becomes unlikely that you will return to work in a reasonable period of time, I may review the position again. I have considered all the facts and have decided to refer your case to Nicola Mahoney who will decide whether you should be dismissed or demoted, or whether your sickness absence level can continue to be supported at this time. “

[57]Also on 7 December Ms Long instructed Ms Fealy to write a referral letter to Ms Mahoney. We have two versions of the letter to Ms Mahoney, one dated 7 December 2017 and one dated 13 December 2017. In all probability the letter dated 7 December 2017 was a draft and the letter dated 13 December 2017 was the one actually sent.

[58]The letter of referral to Ms Mahoney was accompanied by a three-page report. Although this presents as being prepared by Ms Fealy, Ms Fealy indicated that it was a document made jointly with Ms Long. Apart from reviewing the content of interviews Ms Fealy had had with the claimant, the substance of that report is Ms Long’s. The report begins: - “Long-term absence cannot continue to be supported for the following reasons.”

[59]The report cites extracts from the OHS report, so clearly that had been considered. The report concludes as follows: - “We now have a return to work date for 10 January 18 (stated on the Med Cert although Grace doesn’t work Fridays and has agreed a return to work on the following Monday would be better for her.) Up until now, although Grace has said that work is the contributory factor to her stress, and a number of actions have been put in place to address this, she continues to state that she has not been able to return to work because of stress of work. Having failed to follow through with a return to work following agreed actions that would support this, I am referring to the decision maker because Grace has not taken the opportunity to attempt a return. At her last meeting she stated that she is trying to “disconnect” from work as thinking about work makes her feel stressed. Based on this I feel there is no reasonable expectation of recovery in the near future.”

[60]The delay between the two versions of the letters may be explained by the fact that Ms Long wanted to take advice from HR. She states that on 12 December she spoke with an HR consultant at the Civil Service HR. HR sent a confirmation of the key points of discussion on 12 December 2017 to Ms Long. This document concludes: - “As I advised it is risky to refer the matter to the DM [decision maker] at this stage as the three-month OHS case conference has not yet been booked but also due to the fact that the last OHS report has given an indication that the MOS [member of staff] may possibly return to work in 4 to 6 weeks. It would be safer to wait until at least then and after the current sick note expires before making a decision to refer to the decision maker. If an OHS conference has been held, the MOS does not return in 4 to 6 weeks and if the MOS still does not take up any of the recommendations offered and there is not another specific return to work date given then a decision to refer to the decision maker may be made on a much firmer footing.”

[61]Notwithstanding the clear and, in our judgment, obviously correct advice from HR, Ms Long nevertheless referred the claimant’s case to the decision maker stating: - “I recommend that Grace is dismissed. She has been given adequate guidance, support and time to improve her attendance, but she has not shown that there is any reasonable prospect of achieving the required level of attendance within a reasonable timescale.”

[62]Although signed by Ms Fealy, that letter is manifestly reflecting the decision and views of Ms Long.

[63]Ms Long’s evidence as to why she came to this decision is as follows: - “The reason for my recommendation that the claimant should be dismissed was that she had been given adequate guidance, support and time to improve her attendance but had not shown that there was any reasonable prospect of achieving the required level of attendance within a reasonable timescale. I based this decision on the claimant’s sickness record, the OH report, the adjustments that Phyllis Fealy had offered to enable the claimant to return to work, the back to work plan that Phyllis Fealy had discussed with the claimant to enable her to return to work and the fact that the claimant had indicated that she would return to work on 10 January 2018 or shortly afterwards. As the claimant had failed to follow through with her return to work on the expiration of her medical certificate following agreed actions that would support her to do so, I did not consider that the claimant had taken every opportunity to attempt to return to work and I did not think there was any reasonable expectation of recovery in the near future.”

[64]We have considered each of the factors cited by Ms Long in support of her decision.

[65]We agree that the claimant had been given some guidance and support to improve her attendance. We find that the claimant had not been given adequate time to demonstrate her return to work. Her sick note covered the period to 10 January 2018 and the claimant was consistently stating that she would return on 11/15 January 2018. We find it inconceivable that any reasonable manager could have concluded that there was no reasonable prospect of the claimant achieving the required level of attendance within the reasonable timescale of one month.

[66]Ms Long states that she based this decision on the claimant’s sickness record, which, as we have already observed, was, for the three years leading up to these events, excellent. Ms long expressly says that she did not take into account the half day absences that had been recorded against the claimant in early 2017. By extension she should not have taken into account any other unrecorded absences that she has eluded to.

[67]The OH report does not in any way support Ms Long’s decision. She deliberately ignored it. She seeks to justify this by suggesting that the advice was only guidance and it was her decision whether or not to recommend the claimant should be dismissed. The adjustments that Phyllis Fealy had offered to enable the claimant to return to work could only have become operational once the claimant had actually managed to return to work. That was going to take place on 11 January 2018. Similarly, the back to work plan that had been discussed and the fact that the claimant had indicated she would return to work on 11 January or shortly thereafter all indicate that the claimant would be able to return to work within a reasonable timescale. Further, her decision flew in the face of the clear advice from HR.

[68]The respondent seeks to support the decision making reliant upon the attendance management procedures at Stage 2 and Stage 3 which reserve the right for the respondent to dismiss an employee if she is unlikely to return to work within a reasonable time and/or if the manager believes that her absence can no longer be supported by the department.

[69]In our judgment, the right of the respondent to dismiss at Stage 2 and/or Stage 3 of the process or indeed at any stage of the process, has to be considered within the overall framework of the procedure. The procedure clearly contemplates a 14-day review, a 28-day review, thereafter monthly meetings, a referral at 3 months to OH and a case conference. Senior civil service member engagement would happen at the 6 month point and dismissal would only arise at Stage 6 which could be after 12 months absence on sick leave. Further, the respondent paid full sick pay for 6 months and half pay for the second 6 months. In our judgment, given that framework, it must only be in wholly exceptional circumstances that the respondent could conclude that an employee was unlikely to return to work within a reasonable time and that the respondent could no longer support that individual after only 15 weeks sickness absence. That is especially so when the sickness absence is disability related. In our judgment such an exceptional circumstance would be when it was unarguable that the absentee was very unlikely to return to work within a reasonable time. Reference is made at Stage 3 to “being in hospital or a hospice”. It is stated that the Department does not envisage anyone being supported for longer than 1 year. In this case the claimant was scheduled to return after just over 3 months’ absence which we find in the circumstances to be a reasonable time.

[70]We have examined the decision to recommend dismissal against the respondent’s criteria for making such a decision to dismiss.

[71]We find that everything reasonable had not been done to support the employee back to work. She was indicating she was going to return to work on 11 January 2018 and the decision was made prior to her being able to do so.

[72]We find that there was a reasonable expectation of improved and sustained attendance to a satisfactory level. The claimant had agreed to the adjustments being proposed and a change of manager and temporary front of house work would obviously have removed much of her stresses.

[73]The mitigating circumstances are self-evident. In 2017 the claimant was 59 years old and had worked all her working life within the civil service. Obtaining an alternative job having been dismissed would have posed significant problems to her.

[74]The nature of the claimant’s disability was that she suffered from the mental impairment of stress at work. Reasonable adjustments had been considered and offered but the claimant had not had the opportunity of demonstrating satisfactory attendance once they were operational. Put another way, the reasonable adjustments proposed had not actually been put in place as they could only be put in place once the claimant returned to work.

[75]Whilst it is said that what is a reasonable level of absence to support for a disability is not an exact science, in our judgment to withdraw support after 15 weeks absence related to the disability is unreasonable. In coming to that judgment, we are not substituting our view for the view of management. In our judgment such a conclusion is wholly outside any reasonable band of managerial responses.

[76]Reasonable steps had been taken to understand the effects of the illness by referral to OHS and HR. Unfortunately, those steps had been wholly ignored.

[77]The claimant’s length of service is 30 years plus and her recent previous attendance records was excellent.

[78]In our judgment the reference to the decision maker with a recommendation for dismissal should not have been made under the respondent’s own procedures as dismissal was not an option because there was an outstanding OH report with reasonable adjustments which should have been put in place as an alternative to dismissal. Further, that when taking into account the respondent’s own criteria for dismissal, every indicator pointed against dismissal.

[79]Ms Nicola Mahoney’s involvement in this case began with the referral to her as a decision maker. As recorded, the letter of referral came with the report. This begins:- “Because of the relationship breakdown between Grace and her manager, it was decided that Phyllis Fealy would conduct all informal and formal interviews and complete all subsequent write ups only. Sweta was available to address any enquiries and support Grace with actions if required.”

[80]It is apparent from Ms Mahoney’s witness statement that she took Ms Fealy’s documents at face value and was unaware that Ms Long was actually making the decisions.

[81]On 18 December 2017 the claimant was invited by Ms Mahoney to attend a meeting on 3 January “to discuss your sickness absence and the circumstances of your case”.

[82]The meeting was held on 3 January 2018. We have the notes of the meeting. The meeting apparently began by the claimant being asked if she would accept demotion or ill-health retirement which might suggest that the decision to dismiss her had already been taken. The reasons for the claimant’s stress at work were discussed and the meeting concluded with the following exchanges:- “NM: What is stopping you from coming back to work? G: I have a GP’s certificate until the 10/01/18 I am happy to come back to work on 11/01/18 I was told I will be line managed by Anif and will be doing floor walking. NM: You’re happy to return to Wood Green as a floor walker under Anif. G: Yes I am better but not out of the woods, but I should not have been treated like this. NM: Are you trying to self manage your mental health. G: Yes, I am going gym and church and have improved. NM: What coping mechanism will you do when you go back to work? G: Go to church. NM: What reasonable adjustment do you need? G: If I can come in for half a day and start later in the morning, my sleeping is messed up due to the medication I am using. NM: That can happen but only for a period of time. Based on the reasonable adjustment are you looking to resume work on 11/01/18? G: Yes, by the grace of God.”

[83]On 5 January 2018 Ms Mahoney had a discussion with HR. On that date HR sent an email to her as follows:- “Summary of query: You are the DM for a continuous absence case. The member of staff is off with depression and work related stress and has been since September 2017. They are currently on no live warnings but do have a history of absences due to the condition. OHS advice has been sought and acted upon. You have held the DM meeting and the member of staff has advised that they intend to work on 11 Jan 2018. You wished to discuss the case before making your decision. Summary of discussion: We had a lengthy discussion about the case, and although the final decision is yours, from the information you provided I advise that there would appear to be a significant risk of dismissing the member of staff when there is an imminent intended date of return. To defer your decision until 11th so that you can confirm if the member of staff has returned to work, would be a more reasonable and proportionate response, and would be acting within the intent of the managing attendance policy:”

[84]Once again, in our judgment, that is manifestly correct advice.

[85]On 10 January 2018 the claimant put in a grievance against Ms Long. As a result, Ms Mahoney had a further discussion with HR. A further email was sent to her as follows:- “Summary of query: You are the decision maker in an attendance management case, considering dismissal. Summary of discussion: You intend to make your decision to dismiss today. There has been mention of the employee returning 11.1.18 and you previously discussed this with another consultant, who advised there are significant risks associated with the dismissal. This remains the case therefore you should fully document to your rationale. We also discussed the employee appears to have lodged/intends to lodge a grievance alleging harassment and bullying from their line manager. You do not have receipt of the grievance but believe the employee has been into the office to compose the grievance. If the employee is alleging harassment and bullying as the reason for their absence, you should consider this using normal grievance procedures. Consideration of a dismissal again, poses significant risk. You will also be advising the employee their date of dismissal will be the date they intend to return to work.”

[86]Once again, sound advice from HR.

[87]Ms Mahoney decided to dismiss the claimant and the dismissal letter is dated 10 January 2018. This recites that Ms Mahoney has carefully considered the following: “• Your most recent occupational health services advice report

• Your representations at our meeting

• Your attendance management file

• Your stress risk assessment conducted 12.10.17

• Your keeping in touch meetings with Phyllis Fealy and the reasonable adjustments offered to support your return back to work.”

[88]If Ms Mahoney did carefully consider them then she clearly just ignored them.

[89]The decision making letter states:- “I have found that you have not made every effort to return to work. On your 28 day review (31.10.2017), and the two month review (30.11.2017) you were offered on occasions, different roles and a different manager with a view to help support you with a return to work. You declined both these offers.”

[90]This conclusion is completely wrong. The claimant agreed with all suggestions put to her. It is correct to say that the claimant did not return to work with these adjustments as prompted by the respondent but we find that, given that the claimant was signed off work by her GP until 10 January 2018, that failure to return to work was fully medically justified.

[91]The decision letter goes on to state: “I am also confident that you have been offered various adjustments that could have supported an earlier return to work.”

[92]In our judgment, that is an assertion that the claimant should have returned to work at a time when she was signed off work by her doctor. That is, in our judgment, unreasonable.

[93]The decision letter goes on to state:- “After considering all the relevant factors, I have decided that your employment with DWP must be terminated because you have been unable to return to work within a timescale that I consider reasonable.”

[94]In our judgment this decision was unfair.94.1 Ms Mahoney did not consider the respondent’s criteria for making such a decision. We have already considered those in the context of the referral to her by Ms Long. By a parity of reasoning we find that had she addressed those issues then she could not have decided to dismiss.

94.2 The decision was based on a wrong conclusion that the claimant had declined offers of help to support her to return to work.

94.3 The decision flew in the face of clear advice from HR and the OH report.

94.4 The decision to dismiss was totally outside the band of reasonable responses of a reasonable employer.

[95]We find in fact that the decision to dismiss had been made by senior management on 7 December 2017 and that Ms Mahoney was merely going through the motions to carry out their recommendation.

[96]Our conclusion in this respect is bolstered by the reference in the claimant’s appeal letter to the fact that when she went in to work on 9 January 2018 her colleagues were surprised to see her attend the office and commented by saying “Oh we were told you had been sacked”.

[97]Following the decision to dismiss, Ms Mahoney filled in an Attendance Management Decision Maker’s Record of Decision. This answers the question “Have all reasonable adjustments been made?” with a Yes. This is obviously wrong. Yet again the assertion is made that the claimant made no reasonable attempts to return to work in circumstances where, in our judgment, such a conclusion was not warranted as she was signed off work at the time.

[98]On 18 January 2018 the claimant appealed against her dismissal.

[99]The claimant attended an appeal meeting on 21 February 2018. Ms Maifredi was the senior manager conducting the appeal hearing. The claimant was accompanied by a Trade Union representative. Again the claimant went into her various complaints about Sweta Long in the context of what was causing her stress at work. It is noticeable that the claimant was stating that she got good support from Phyllis (Fealy) – at that stage she was still unaware that Ms Fealy was de facto executing the requirements of Ms Long. During the appeal the claimant complained that she was being required to return to work before the end of her sick note, that she was asking for the OHS issues to be addressed, that she was feeling much better now and would be able to take on the floor walker role and that she had been treated unfairly. She reiterated that other staff were aware of her being dismissed prior to the claimant being notified. In our judgment the claimant was articulating in her own way the very real procedural and substantive defects that we have found in her dismissal.

[100]Ms Maifredi decided not to uphold the claimant’s appeal and the claimant was notified of this on 5 March 2018. The appeal decision letter looks as if parts of it have been cut and pasted from the dismissal letter, including the decision itself which recites:- “After considering all the evidence I have decided not to uphold your appeal as you have been unable to return to work within a timescale that I consider reasonable. I am satisfied that DWP has supported your absence for a period significantly longer than recommended by Occupational Health specialists. Furthermore I have seen insufficient evidence that you have made efforts to support your return back to work.”

[101]That conclusion flies in the fact of the facts as we find them, namely that:-101.1 The claimant was going to return to work the day after or on her next shift after she was dismissed.

101.2 The DWP had not supported the claimant’s absence for a period significantly longer than recommended by Occupational Health specialists.

101.3 The claimant had not returned to work as she was signed off by her doctor at all relevant times. Further the conclusion that she had made insufficient efforts to return to work flies in the face of the conclusion of Paula Heffernan that she had attempted to do all that was in her own control to attempt to return to work.

[102]As already recited, it became apparent to us that the real reason the claimant was dismissed and her appeal was turned down was because of perceived difficulties she was having in undertaking her job. Ms Maifredi told us “she was struggling to do the role”. Further, Ms Maifredi told us “at no time did it feel like she was going to be in the right frame of mind. Even if she did return, then her health would mean that she would not maintain a reasonable level of attendance.”

Conclusions

[103]We find that the principal reason for the claimant’s dismissal was that she was perceived to be a difficult employee, struggling with her role, not adapting with the benefit of training and had raised a grievance with her line manager. These are all issues that we would expect to be dealt with by way of performance management and not by way of sickness attendance. We find that the sickness attendance procedure was used as a pretext to get rid of the claimant.

[104]Whilst capability in terms of performance is a potentially fair reason, we have found that this was not the basis of the dismissal. Accordingly we find that the dismissal was both procedurally and substantively unfair.

[105]We find that the claimant should not have been referred to a decision maker for dismissal at the point where she was as the threshold for dismissal had not been crossed at that stage. We find that the decision to dismiss was contrary to the respondent’s own attendance management criteria and ignored the clear recommendations of OH and HR.

[106]We find that the respondent could have been expected to wait longer for the employee to return to work, as she was intending to return to work. Other staff were available to carry out the claimant’s work in her absence and had been tasked to do so. The nature of the claimant’s illness was disability related. The likely length of her absence was short in that she was due to return to work. There will have been a cost of continuing to employ the employee but we take into account that the DWP is a sizeable organisation. It will always be unsatisfactory to have an employee on sick leave, but in our judgment the point had not been reached where managing her out of the organization was justified.

[107]The respondent did consider other options but failed to allow sufficient time for them to be put into place.

[108]The length of the absence of the claimant was, within the context of the respondent’s Management for Attendance Policy, short. The nature of the illness was mental impairment described as work related stress. Whilst we accept that that is an illness that is difficult to manage, the fact is that the claimant was intending to return to work. Secondly, it was an illness that arose in the context of the workplace. The claimant was a very longstanding employee. The issue of temporary cover/effect on other employees/effect on output we do not consider arises in this case at this stage due to the size of the respondent. Clearly sick pay was available.

[109]We have found that there was an agreed date for the claimant to return and she was dismissed the day before she was scheduled to return. We have found that the claimant was dismissed because of her disability. We do not find that the claimant was dismissed because she had worked a long time and was employed on an old contract. Further we do not find that the claimant’s dismissal was specifically related to her complaints about work she considered to be not legal. In a general sense we do find that the perception of the claimant’s ability to do her role was a factor in her dismissal.

[110]The respondent did consult but we have found totally ignored correct advice.

[111]Accordingly, we find that the decision to dismiss the claimant was unfair.

[112]We now turn to consider disability.

[113]In closing submissions Mr Margo stressed that the case he had to face was one of direct discrimination and that he resisted any attempt to formulate the case as a s.15 Equality Act 2010 Disability Discrimination. In her written closing submissions Ms Hodgson on behalf of the claimant had raised this as a potential way of putting her case. We agree with Mr Margo that it is too late to reformulate the claimant’s case and we have dealt with this case on the basis of the issues as long identified and plainly put as direct discrimination.

[114]Mr Margo stressed to us that for a claim for direct discrimination to be made out it is necessary for us to find that the claimant has been treated less favourably than a comparator and that care should be taken in identifying the relevant comparator. He drew our attention to the case of Mervyn v BW Controls Ltd [2020] ICR and drew a distinction between the condition itself (in this case stress at work) and the effect of the condition (in this case the claimant having difficulty undertaking her role and being absent for ill health).

[115]We have considered the issue of a comparator. We do not consider any of the actual comparators advanced by the claimant to be appropriate as there are material differences in their circumstances.

[116]Accordingly, we have relied upon a hypothetical comparator. We note that the hypothetical comparator does not have to be an exact clone of the claimant. To an extent, constructing a hypothetical comparator in a disability case poses potential problems. The closer the hypothetical comparator is to the claimant in terms of abilities the closer one gets to describing a comparator who is disabled.

[117]That said, we have taken the hypothetical comparator as suggested by Mr Margo. This is as follows:- “Someone who:(a) suffered from ill health caused by issues in the workplace;

(b) was off work due to ill health caused by those issues for the same period of time as the claimant at the point of dismissal (or longer);

(d) to whom adjustments had been offered in order to remove those workplace issues.”

[118]To that hypothetical comparator we might add:- “(e) who had agreed to the adjustments: and (f) who had said that they would return to work on 11 January 2018.”

[119]The claimant has been found to have a mental impairment, namely stress at work, and that she is disabled. In this case we consider that the effects of the disability cannot be divorced from the disability itself. It has been the respondent’s case that the decision to dismiss was on the grounds that the respondent had a perception that even if the claimant did return to work then she would not be able to achieve an acceptable level of attendance due to her stress at work. We have found that the real reason for dismissal was that the claimant was perceived to be unable to do her role due to her stress at work. In our judgment both reasons are directly because of the claimant’s disability.

[120]We have considered the hypothetical comparator. In our judgment it is inconceivable that a non-disabled comparator in the circumstances described would have been dismissed. A non-disabled comparator would have been allowed to return to work in order to see if the adjustments allowed for the long-term resumption of his/her employment were effective.

[121]Accordingly, we find that the dismissal was less favourable treatment because of the claimant’s disability.

[122]Against that background we deal with the individual items of alleged less favourable treatment identified in the issues.

[123]As a matter of fact an occupational health referral was not made within 14 days of the claimant’s absence on 27 September 2017. We have seen nothing that requires such a referral, but in any event we find that a referral was made within a reasonable time. We do not find that this was less favourable treatment.

[124]We find that the respondent did fail to take into account the recommendations of OH dated 6 December 2017. We find that this was less favourable treatment in that it tracked into the unfair and discriminatory decision to dismiss the claimant.

[125]On the wording of the issue, there was no refusal to permit the claimant to make an application for annual leave as she did so. However, assuming that the wording is a bit loose, we find that she was refused but that this was not less favourable treatment on the grounds of her disability.

[126]Whilst references have been made in the documents and in the claimant’s witness statement to her claim that she had an unreasonably onerous caseload, we have also seen reference to an analysis of her caseload which shows that she was by no means the busiest individual. We do not find that this alleged treatment has been proved by the claimant.

[127]As a matter of fact there was no three month case conference in December 2017. The respondent’s assertion that it did convene such a conference is wrong as it accepts that it didn’t, citing the reason being that by then it had already referred the claimant to the decision maker. As such as a matter of fact there was no failure even though we have found that the reference to the decision maker should not have happened and that, accordingly, the three month case conference should have taken place.

[128]There is no formal requirement that the claimant was given a ten day period to return to work after the case conference. Accordingly we do not find that this alleged treatment has been established.

[129]We have found that the respondent did not take into account properly the fact that the claimant had had no period of sickness absence since 2014. As such this failure is made out and we find that it is less favourable treatment on the grounds of the claimant’s disability in that it tracks into the unfair and discriminatory dismissal.

[130]In our judgment issues of contribution in relation to ill-health dismissal do not arise. Lastly, we do not find that there has been any failure to comply with the ACAS Code of Conduct on Disciplinary and Grievance Procedures.

Remedy

[131]Having announced our decision on unfair dismissal and disability discrimination, the respondent offered reinstatement. Accordingly an order for reinstatement will be made. Injury to feelings

[132]As per Prison Service & ors v Johnson

[1997] ICR 275

EAT we have taken into account the following general principles that underly awards for injury to feelings:• Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party

• An award should not be inflated by feelings of indignation at the guilty party’s conduct

• Awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches

• Awards should be broadly similar to the range of awards in personal injury cases

• Tribunals should bear in mind the value in everyday life of the sum they are contemplating, and

• Tribunals should bear in mind the need for public respect for the level of the awards made.

[133]Obviously enough we have the Vento guidelines as adjusted.

[134]We find that the claimant has suffered very considerable injury to her feelings. Mr Margo ventured that an appropriate award would be in Band 2, towards the lower end. Ms Hodgson submitted that Band 3 was appropriate.

[135]In her remedies statement the claimant has sought to include complaints concerning events going back years. We have disregarded this as it does not form part of the case before us. The discriminatory conduct began with Ms Feeley acting as a puppet for Ms Long and ran effectively from December to dismissal in January and the rejection of the claimant’s appeal in March 2018. The ramifications of her treatment have continued to date, in excess of three years.

[136]We do not consider that this case falls into the top Band 3 of the Vento guidelines. This is not a case where there has been a lengthy campaign of discriminatory harassment.

[137]We consider that this is a serious case that falls within the middle Band 2. The aggravating factors that we have taken into account are as follows:-137.1 This has happened to the claimant before. The respondent dismissed the claimant and was ordered to re-engage her in 2008.

137.2 There was management collusion in presenting Ms Feeley as impartial when she was not.

137.3 The attendance management procedure was used as a pretext to get rid of her.

137.4 Management decision making ignored the claimant’s own procedures, the OH recommendations and advice from HR.

137.5 The treatment resulted in the claimant’s dismissal after 30 years’ service.

137.6 The loss of her job has had a profound effect on the claimant. She tells us that she was unable to claim state benefits and has not obtained an alternative job. She has had to borrow from friends and family, is in debt, has lost her accommodation, is on a credit blacklist and has had her bank account closed. She told us that she has had to rely on food banks. This has gone on for three years since dismissal and we find will have caused her significant injury to her feelings.

[138]In arriving at the sum to be awarded we have referenced the claimant’s annual salary which at the material time was £23,400. We consider that a fair, reasonable and just figure for compensation is the sum of £25,000.

[139]Such a figure is towards the top end of the mid band of the Vento guidelines.

[140]We have measured our award broadly against personal injury cases and accept that the sum we have arrived at is, for example, in excess of that which would be awarded for the total or partial loss of an index finger. Nevertheless, within the Vento guidelines, we consider that this is an appropriate award. Further, we accept that £25,000 is a very large amount of money but nevertheless consider that it is a fair reflection of the injury to feelings sustained by the claimant. EMPLOYMENT TRIBUNALS Claimant Respondent Ms Grace Yearwood v The Department for Work and Pensions Heard at: Watford On: 18-19 August 2021 Before: Employment Judge Alliott Members: Mrs J Smith Mr M Bhatti, MBE Appearances For the Claimant: In person (assisted by Ms Judith Ibe (Solicitor)) For the Respondent: Ms Emma McIlveen (Counsel)

Remedy

[1]The tribunal has considered the claimant’s application dated 9 April 2021 to reconsider the judgment sent to the parties on 29 March 2021. The tribunal has decided to grant the reconsideration in certain respects and reject the reconsideration in other respects. The tribunal’s determination is as follows:- Grossing up of claimant’s arrears of pay, salary increments and bonus and annual leave payments for the period 10 January 2018 to 31 January 2021.

[2]The tribunal has not made a monetary award for compensation. As such, the tribunal considers that grossing up is not appropriate in this case. The application for reconsideration is rejected.

[3]The tribunal made an order for the claimant to be reinstated and to be treated in all respects as if she had not been dismissed.

[4]The claimant was paid monthly. The tribunal would expect the respondent to make a calculation as of each pay day between dismissal and reinstatement of how much the claimant would have earned and what deductions for tax, National Insurance, pension contribution etc would have been made. The net figure payable to the claimant would then be arrived at month by month. The tribunal would expect that sum to be paid to the claimant and that it would not be treated as taxable in her hands as the relevant deductions had already been made.

[5]What actually appears to have happened is that in February 2021 following her reinstatement, a calculation was made as to the total amount of pay she would have earned prior to reinstatement, deductions were made as agreed for pay in lieu of notice and in lieu of annual leave and tax and National Insurance and pension contributions deducted from the balance. It seems to the tribunal highly probable that the payment of that back pay in one lump sum in February would result in the claimant paying tax/NI at a higher rate than she would otherwise have done.

[6]The claimant also asserts that the correct rate of pay has not been used and that she was also entitled to bonuses and payments for annual leave. The claimant also has concerns that she has not been returned to the position she would have been as regards her ‘classic’ pension. The claimant informed us that she had been given a new employee number on reinstatement and that she could not access her historic P60 forms with this new employee number in order to ascertain whether all of her pension contributions had been taken into account.

[7]We observe that, in our judgment, it is unsatisfactory that months after her reinstatement there is still uncertainty as to how much backpay the claimant is entitled to, how much tax and other deductions she should pay on it and whether she has been reinstated to the same position as regards her pension. These issues should be a matter of record and we would expect and organisation such as the DWP to be able to sort it out definitively.

[8]In order to move the matter on, we make the following orders:-8.1 By 4pm, 31 August 2021, the respondent is to send to the claimant a document setting out in relation to each payday between the claimant’s dismissal and her reinstatement the gross pay due, the deductions in relation to tax, National Insurance and pension contribution etc and the net pay due.

8.2 In the event that the net pay due exceeds the amount already paid to the claimant, then the difference is to be paid to the claimant by 4pm, 15 September 2021. For the avoidance of doubt, the payment and acceptance of any such amount will not constitute settlement of the issue and the claimant will remain able to challenge the figures, whether earnings or deductions.

8.3 By 4pm, 31 August 2021, the respondent is to use its best endeavours to supply the claimant with her P60 forms from 1987 onwards.

8.4 By 4pm, 15 September 2021, the respondent is to use its best endeavours to provide the claimant with the following details:-8.4.1 Details of the pension the claimant would have had but for her dismissal as of 1 February 2021.

8.4.2 Details of the pension the claimant has, as of 1 February 2021.

8.4.3 If there is a difference between the two, the reason for this. Interest on the total amount due to the claimant as salary backpay.

[9]The order for reinstatement was made under the Employment Rights Act 1996. We have not been taken to any provision that provides for the award of interest on backpay following reinstatement. Accordingly, we do not make an award of interest.

[10]Even if we had a discretion to award interest, we record that due to the very low rate of base rate interest during this period, any such award would have been at a very low interest rate. Interest on award for injury to feelings

[11]The application for reconsideration of this aspect of the judgment is granted. It is accepted that we were under a duty to consider interest on any amounts awarded even if no application was made and no such consideration was made.

[12]The figure for injury to feelings of £25,000 was, in error, made based on an assessment of the value of the claim as of the date of the hearing rather than the date of the act of discrimination. Accordingly, we have decided to reconsider that figure.

[13]In our judgment, as of the date of discrimination which was from December 2017 through to dismissal on 10 February 2018, an appropriate and fair figure for injury to feelings would be £20,000.

[14]From shortly before dismissal until the date of the hearing is a little over three years. At a rate of 8% per annual, we consider it appropriate to award an interest rate of 25%, or £5,000.

[15]Accordingly, the award for injury to feelings will be £20,000 plus £5,000 interest.

[16]This is the same figure as appeared in the original judgment and we understand that figure has already been paid to the claimant. Aggravated damages

[17]Best practice suggests that aggravated damages should be treated as a subset of the injury to feelings figure. In our original judgment we set out all the matters that we considered were aggravating features. We reconsider our judgment to make clear that the injury to feelings figure includes an award for aggravated damages.

[1]The respondent is ordered to pay the sum of £12,500 as a penalty to the Secretary of State.

[2]The respondent is ordered to pay the claimant’s costs incurred after 2 September 2020, to be subject to detailed assessment if not agreed.

[3]Paragraph 12A of the Employment Tribunals Act 1996 provides as follows:- “12A Financial penalties (1) Where an employment tribunal determining a claim involving an employer and a worker – (a) concludes that the employer has breached any of the worker’s rights to which the claim relates, and (b) Is of the opinion that the breach has one or more aggravating features, The tribunal may order the employer to pay a penalty to the Secretary of State (whether or not it also makes a financial award against the employer on the claim”.

[4]We have determined that the respondent has breached the claimant’s worker’s rights.

[5]We have made a financial award of £25,000 to the claimant. Pursuant to s.12A (5) the penalty shall be 50% of that amount, namely £12,500. The respondent is clearly able to pay.

[7]As per the IDS Employment Law Handbook Practice and Procedure at 20.17: “Aggravating features “aggravating features” is not defined and is left to the discretion of the tribunal. According to the governments explanatory notes to s.16 ERRA, however, “an employment tribunal may be more likely to find that the employer’s behaviour in breaching the law had aggravating factors where the action was deliberate or committed with malice, the employer was an organisation with a dedicated Human Resources Team or where the employer had repeatedly breached the employment right concerned”. Conversely “the employment tribunal may be less likely to find that the employer’s behaviour in breaching the law had aggravating factors where an employer has been in operation for only a short period of time, is a micro business, has only a limited Human Resources function, or the breach was a genuine mistake”.

[8]Ms McIlveen, on behalf of the respondent, cited to us two cases, namely First Greater Western Limited v Waiyego, UK

EAT/0056/18/RN

and GiwaAmu v Department for Work and Pensions case number 1600465/2017.

[9]As per paragraph 105 of First Greater Western Limited:- “Section 12A appears to have been little used and, as far as I am aware, has not generated any appellate jurisprudence. It was added by s.16(1) of the Enterprise and Regulatory Reform Act 2013, with effect from 6 April 2013. The explanatory notes accompanying s.16 stated that its purpose is “to encourage employers to take appropriate steps to ensure that they meet their obligations in respect of their employees, and to reduce deliberate and repeated breaches of employment law”.

[10]In the Giwa-Amu case the tribunal declined to make a financial penalty as it considered that its recommendations would be more effective in ensuring the respondent avoids repeated breaches of employment law. It is ironic that the respondent in that case was the DWP.

[11]We find that there were numerous aggravating features of this case. We find that the respondent’s conduct was deliberate and that the respondent was an organisation with a dedicated Human Resources Team. We rely on but do not repeat the aggravating factors identified in paragraph 137 of our reasons. Of particular concern was the management collusion in pretending to be impartial and the disregard paid to the claimant’s own procedures and the recommendations and advice from OH and HR.

[12]In our judgment, it is appropriate to impose a financial penalty of £12,500 on the respondent to encourage it to take appropriate steps to ensure that it meets its obligations in respect of its employees and to reduce deliberate and repeated breaches of employment law. Costs

[1]On 18 February 2021 the claimant made an application for her costs.

The law

[2]Rule 76 of the Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013 provides as follows:- “76 when a costs order… shall be made (1) A tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers – (a) A party… has acted…unreasonably in…the way the proceedings (or part) have been conducted: or (b) any claim or response had no reasonable prospect of success:”

[3]Our discretion involves a three-stage process. Firstly, we need to determine whether the jurisdiction is engaged; secondly, if the jurisdiction is engaged, we need to consider whether to exercise our discretion and make an order; and, thirdly, we need to determine how much to award.

[4]We take as our starting point that costs are not normally awarded to the successful party against the unsuccessful party.

[5]From the IDS Employment Law Handbook at 20.59 dealing with “unreasonable conduct”: “Unreasonable has its ordinary English meaning and is to to be interpreted as if it meant something similar to vexatious – Dyer v Secretary of State for Employment EAT 183/83. … In determining whether to make an order under this ground, an employment tribunal should take into account the “nature, gravity and effect” of a parties unreasonable conduct – McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

CA … The Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council

[2012] ICR 420

, CA commented that it was important not to lose sight of the totality of the circumstances. The vital point in exercising the discretion to order costs is to look at the whole picture. The tribunal has to ask whether there has been unreasonable conduct by the paying party in bringing, defending or conducting he case and, in doing so, identify the conduct, what was unreasonable about it, and what effect it had. Reasonableness is a matter of fact for the employment tribunal, and it will be difficult to argue that the tribunal has made an error or law unless it can be shown that it has neglected relevant considerations or taken into account irrelevant ones.” Grounds of the application

[6]Accompanying the application for costs is a statement that the claimant’s costs at that stage were £115,993.40. We observe that that appears to be an extraordinarily high figure and we find it hard to conceive how the claimant can have run up such a bill. In any event, in our judgment, the fact that the claimant has run up a large bill of costs is not a ground for us to make a costs order.

[7]We find that the respondent did reasonably engage in settlement negotiations.

[8]The original directions required the respondent to indicate whether or not it conceded the disability issue by March 2019. In actual fact it only confirmed that disability remained in issue on 1 October 2019. The respondent contended that the impact statement had been served late by the claimant and that the disclosure was incomplete. In our judgment, the respondent’s actions may have been justified and, in any event, did not cause any unnecessary increase in costs. We do not find that that conduct was unreasonable.

[9]The claim was originally scheduled to be heard at a 5-day hearing beginning on 14 October 2019. Shortly before that a joint application was made to adjourn the hearing. This was on the grounds that there had been significant delays on both sides in disclosure and in agreeing the contents of a bundle which had a knock on effect on the preparation of witness statements which had only been finalised shortly before and the parties had insufficient time to prepare for the final hearing. We do not find that the respondent’s conduct was unreasonable in adjourning that hearing.

[10]A further preliminary hearing to determine the issue of disability was directed. That was scheduled for April 2020 but due to the covid lockdown only took place in August 2020.

[11]The decision that the claimant was disabled within the meaning of the Equality Act 2010 was sent to the parties on 2 September 2020.

[12]The decision of Employment Judge Gumbiti-Zimuto makes plain that the claimant’s impact statement left a lot to be desired. In our judgment, it was not unreasonable of the respondent to dispute the issue of disability.

[13]In or judgment, at all times up to 2 September 2020 the respondent did not act unreasonably in the conduct of the proceedings and it could not be said that the response had no reasonable prospects of success.

[14]However, following the determination on the issue of disability, in our judgment, at that stage, the response had no reasonable prospects of success and to have continued to contest the claimant’s claim was unreasonable conduct of the proceedings. At that stage, the respondent had a determination on the claimant’s status as disabled and would have had all the witness statements and documentation to hand. We do not reiterate our findings which are set out in the reasons to the judgment. However, it must have been quite clear that the respondent’s actions in not allowing the claimant to return to work, disregarding its own procedures and ignoring clear recommendations and advice from OH and HR that the respondent’s defence was doomed to failure.

[15]Consequently, a costs order in favour of the claimant will be made.

[16]We do not have a breakdown of the claimant’s costs after 2 September 2020. ORDERS 1. The claimant is to send a schedule of costs incurred after 2 September 2020 to the respondent by 4pm, 2 September 2021.