Ms J Gordon v The Commissioner of Police of the Metropolis: 3307755/2023 and 3313437/2023

EMPLOYMENT TRIBUNALS

Case No 3307755/2023, 3313437/2023

Between

Ms J GordonClaimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Bedeau

In person for claimant

Ms S Crawshay-Williams (instructed by Counsel) for respondent

Date 27 February 2026

JUDGMENT

[1]The complaint of unfair dismissal is not well-founded. The claimant was not unfairly dismissed.

[2]The complaint of direct disability discrimination is not well-founded and is dismissed.

[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[4]The complaint of failure to make reasonable adjustments for disability is not wellfounded and is dismissed.

[5]The complaint of harassment related to disability is not well-founded and is dismissed.

[6]The complaint of victimisation is not well founded and is dismissed.

[7]The complaint of direct race discrimination is not well founded and is dismissed.

[8]The complaint of harassment related to race is not well founded and is dismissed.

REASONS

[1]The claimant was a Communications Officer employed by the respondent from 15 July 2002 to 8 August 2023. She was dismissed following an investigation into how she handled an emergency 999 call from a 17 year old girl.

[2]The claimant asserts that the respondent discriminated, harassed, and victimised her because of her disability and race (Black African Caribbean). She also claims unfair dismissal. In the response, the respondent denies the all the complaints and asserts that the claimant was dismissed for gross misconduct because of the way she dealt with the emergency call. Procedural background

[3]The claimant brought 2 claims, one prior to her dismissal, while her conduct was being investigated, and one following her dismissal. She went to Acas in respect of the first claim on 19 May 2023, received a certificate on 8 June 2023 and the claim was received by the tribunal on 6 July 2023. She went to Acas in respect of the second claim on 22 August 2023, received a certificate on 11 September 2023 and the claim was received by the tribunal on 24 November 2023. The tribunal ordered that the claims be heard together on 9 February 2024.

[4]A Case Management hearing took place before Employment Judge Bedeau on 29 May 2024. At that hearing the claimant agreed to withdraw claims of indirect disability discrimination and indirect race discrimination and a Judgment was accordingly issued.

[5]The case was originally listed with a time estimate of 10 days before a full panel. The hearing started a day late owing to tribunal resources. The parties were notified the day before the hearing started that the tribunal was unable to provide a full panel on the dates listed and the case would now be listed before a Judge sitting alone. The tribunal received no objections. The timetable in the original case management order was adjusted because the respondent now had 12 witnesses instead of 8 and the time had been reduced to 9 days from 10. The claimant was not able to attend on 18 December 2025 because of a medical appointment.

[6]At the outset of the hearing, I considered adjustments for the claimant. I went through the claimant’s list attached to her email of 18 September 2025. I told the claimant she could request breaks whenever she required them and I agreed to consider allowing her to supplement her oral evidence with written evidence if her voice failed. In the event that did not occur. She was provided with a footstool from Day 3 onwards when giving evidence. Counsel for the respondent was asked to adjust his questions signposting to each topic in cross examination. The claimant’s daughter attended for days 2 and 5 of the hearing and is here for the judgment today.

[7]The sources of evidence were witness evidence and a bundle of documents of 2,447 pages. I also listened to the audio of the emergency call and compared it to an agreed transcript.

[8]The witnesses, which I heard evidence from, were; For the claimant:8.1 The claimant. For the respondent:

8.2 Inspector Mark Long, the Gross Misconduct Hearing Officer.

8.3 Samantha Salmon, the claimant’s Supervisor.

8.4 PC Monica Omonua, Specialist Investigation Officer for DPS (Dept of Professional Standards).

8.5 Sophie Sterling, Data Analyst in the Trauma Peer Support Team and Independent Member of Gross Misconduct Panel.

8.6 Paul Redfearn, Chief Inspector at Met Command and Control Dept (“Met CC”) Hendon.

8.7 Sofia Papadopoulou, Misconduct Hearings Manager.

8.8 Danielle Purchase, Data Rights Manager.

8.9 Julia Muir, Cover Duty Officer.

8.10 Marie Heracleous, Appeal Hearing Officer.

8.11 Alison Hollick, Communications Supervisor since 2017, Met CC Hendon, Team A member, monitored call systems and despatch on 4 Aug 2021.

8.12 Maggie Considine-Holding, Supervisor within Met CC.

8.13 Richard Hailstone, Chief Supervisor at Met CC.

[9]These individuals all provided written statements in advance and I took time to read them. Each witness was asked questions about the evidence contained in their statements. All witnesses attended the tribunal in person but a CVP link was provided for observers.

[10]References to pages in the bundle below are set out in brackets [x]. References to paragraphs in the witness statements consist of the witness’s initials and number of the paragraph (AB-YZ), save that I refer to the claimant as ‘C’ (C/YZ). Preliminary matters dealt with at the hearing itself Amendment application

[11]The claimant applied to amend her claim to include a complaint of wrongful dismissal which I refused. I gave oral reasons for my decision. The reasons were that this was a new claim and the application had been made at a very late stage in the proceedings, following two preliminary hearings. The claim was out of time. I decided the balance of prejudice was in favour of the respondent. The respondent had 12 witnesses and the time and costs the respondent would need to spend in supplementing their statements needed to be balanced against the prejudice to the claimant. If the claimant succeeded in her claim for unfair dismissal she would be awarded compensation for such part of her notice period deemed appropriate in any event. Strike out application

[12]The claimant applied for strike out of the response on the grounds that she had not been provided with the audio of the 999 call in the months leading up to the hearing. I refused the claimant’s application. My reasons for refusing the application were given orally at the hearing and are set out in writing below.

[13]The application related to the audio of the 999 call. The claimant listened to the audio under supervision on 19 April 2022 and at the investigation hearing on 15 July 2022. Subsequently, the parties could not agree on terms for sharing the audio with the claimant. It contains sensitive and personal information about the caller and her sister who were under 18 years old and were vulnerable persons. Although the names have been redacted (‘bleeped out’ in the audio version) the respondent must reasonably be alert to the risk of wider publication which could adversely impact the caller and her sister. Therefore, understandably, and I found reasonably, the respondent was not prepared to give unrestricted access. The claimant was asked to give an undertaking not to share the recording with any individual save her adviser and not to make a copy. She did not give the undertaking. The upshot was that by the morning of the hearing she had not listened to it since 15 July 2022.

[14]There is an independently prepared transcript of the audio in the bundle [899]. The parties were ordered to place an agreed transcript in the bundle by EJ Alliott on 15 October 2025. I proposed to the claimant that she listened to the audio in the tribunal in order to verify the transcript. She declined to listen to it on Day 1.

[15]I proceeded to hear submissions on the claimant’s application to strike out the response. Under rule 38 of the Tribunal Procedure Rules 2024 the tribunal has a discretion to strike out all or part of the response on grounds that the manner in which the proceedings have been conducted by the respondent has been scandalous, unreasonable or vexatious, for non-compliance with the procedure rules or order of the tribunal or where the tribunal considers that it is no longer possible to have a fair hearing.

[16]I found that the respondent had not refused to provide the audio but the claimant had refused to comply with conditions which , in view of the sensitivity of the material and the risk of it ending up in the hands of others or on the internet, I consider were reasonably required.

[17]The reason that the claimant has not confirmed that she agrees the transcript in the bundle is that she has not cooperated with the respondent in arrangements for listening to the audio and, indeed, she did not cooperate with the tribunal when a reasonable suggestion was put forward that she could listen to it this morning.

[18]I do not find that the proceedings have been conducted in a scandalous, unreasonable, or vexatious manner by the respondent. Accordingly, I do not find that the grounds for striking out the response, or part of the response, have been met.

[19]Following my decision not to strike out the response on Day 1 the claimant said she was withdrawing from the hearing. I informed her that my expectation was that the hearing would proceed the next day. She indicated she would take legal advice. She returned the next day and told the tribunal she was attending under protest, her concern being that she had been denied ‘timely and workable access’ to the audio.

[20]At the beginning of Day 2 arrangements were made for the claimant to listen to the audio in a tribunal room. It was not a convened hearing but the respondent’s representative was present, together with the tribunal clerk, and the claimant was provided with headphones and two copies of the transcript to mark as she listened. Four minor amendments were made to the transcript which were not significant and which were agreed.

[21]I heard submissions about whether I should listen to the audio in open court. Neither side objected. Section 1 of The Sexual Offences Amendment Act 1992 applies and I warned all attendees that they should not take any steps which would lead to the identification of the caller or others referred to in the audio. As I listened to the audio I checked it matched the agreed transcript.

[22]The hearing terminated at 1pm on Day 2 and I allowed the claimant the afternoon to take legal advice and prepare a supplementary statement.

[23]At the beginning of Day 3 the claimant produced a supplementary statement. She also read out a further statement which was a submission that she had not had time to prepare the supplementary statement. I do not accept that was the case. She had a transcript of the audio in the bundle and the amendments to it were very minor and would not require any amendment to her statement.

The issues

[24]A list of issues for the tribunal to decide was initially drawn up in a case management hearing before Employment Jude Bedeau on 29 May 2024.

[25]Part way through the claimant’s evidence, after cross examination relating to dismissal and whether the claimant had a disability within the definition of the Equality Act 2010, I reviewed the issues with the parties, because it was clear they were misaligned when it came to the complaints of discrimination arising from disability and reasonable adjustments. In addition, the list referred to the respondent’s legitimate aims but the aims had not been specified. There was no provision, criterion or practice (PCP) relating to the alleged reasonable adjustment that people should not be able to walk behind the claimant or relating to the allegation that a call operator was questioned if they took too long on a call. I decided that it was in the interests of justice to amend the list to reflect the case as both parties clearly intended it to be put.

[26]In addition, at that point, the respondent conceded that they would not pursue the limitation issues because they accepted that the alleged events formed part of a continuing act and the claimant confirmed that she would not rely on the following disabilities; repetitive strain injury and asthma.

[27]Further, during cross examination of Maggie Considine-Holding, the claimant accepted that an email had been sent in respect of Samantha Salmon’s absence and she withdrew an allegation of harassment related to race which related to that incident.

[28]Following the amendments to the issues I informed the claimant that some of the issues remained difficult to understand and were possibly misconceived. For example, not all the medical conditions relied on in the list of issues were referred to in relation to the conduct the claimant complains about. I refer to those parts of the issues where the claimant was unable to explain how they reflected her case in the course of this judgment.

[29]The finalised issues were (original numbering retained): l. Was the reason for the Claimant's dismissal a potentially fair reason? R contends it was conduct. 2. If so, was the dismissal fair in all the circumstances? Namely,a. Did R genuinely believe C to be guilty of the conduct in question?

b. Were there reasonable grounds for that belief?

c. Was a reasonable investigation conducted? 3. Was dismissal within the range of reasonable sanctions? 4. Was a fair process followed. 5. If dismissal was unfair, did C contribute to that dismissal? 6. Would C have been dismissed in any event? Discrimination Claims Jurisdiction 7. It is recorded that allegations of discrimination brought outside the primary time limit form part of a continuing act with any allegations that were brought in time ....... Disability 10. At the material time, was C disabled by reason of ADHD, hypertension, early on set Parkinsons and Diabetes 2, a thyroid growth and vocal cord condition. The respondent acknowledge that the claimant's Diabetes Type 2 is a disability and accepts knowledge at the relevant times. 11. Did the Respondent have actual or constructive knowledge of the other alleged disabilities at the material time? Direct Disability Discrimination 12. Did R treat C less favourably as follows: a. Being subject to the disciplinary process. b. Being subject to allegations of gross misconduct and the c. Respondent not considering alternative action sanctions.

d. Her dismissal and the Respondent's decision to uphold this on appeal.

e. On a quality assurance form dated 4 August 2021 but given to the Claimant in a bundle before her interview in or around the end of January 2022, Allison Hollick (supervisor) said the Claimant did not spell the caller's name correctly and was inattentive.

f. On or around 23 November 2021, Chief Inspector Redfearn made the decision to put the

g. On 2I February 2023, an Informal Management Action was issued to the Claimant by 13. If so, was this on the basis of the Claimant's disabilities? If not, what is the respondent's explanation? 14. C relies on a hypothetical comparator who is non-disabled or without the claimant's disabilities. Discrimination arising from disability 15. Did the Claimant's disabilities cause her to lose focus and suffer attention and memory lapses? This is the 'something arising' the Claimant alleges arose in consequence of her disabilities. 16. If so, was the Claimant treated unfavourably because of this? If so what is the respondent's justification defence? The unfavourable treatment alleged is as follows: a. Her dismissal. b. Superintendent Mark Long failed to consider the Claimant's mitigation evidence in deciding to dismiss her. The Claimant was not given the opportunity to state her mitigation in the disciplinary hearing. c. Sophie (from the authorising authority) in the disciplinary hearing said it would be possible to refer to previous gross misconduct warnings from 2016 as the Claimant had raised the subject in her investigation interview. d. On 21 February 2023, an Informal Management Action was issued to the Claimant by Samantha Salmon. The Claimant docs not know who Ms Salmon spoke to before the e. On a quality assurance form dated 4 August 2021 but given to the Claimant in a bundle before her interview in or around the end of January 2022, Allison Hollick (supervisor) said the Claimant did not spell the caller's name correctly and was inattentive. 16A If there was unfavourable treatment because of the alleged something arising in consequence of the alleged disabilities, can the Respondent show that such treatment was a proportionate means of achieving the following legitimate aims: Maintaining public safety. Maintaining public confidence in Respondent’s Services. Ensuring a uniform approach to QAs. Maintaining adequate standards of service. Maintaining appropriate standards of trust and confidence in staff. 16B. Did the Respondent know or reasonably be expected to know of the disability at the relevant times? Failure to make reasonable adjustments 17. Did the Respondent apply the following provisions, criteria and/or practices ('the provisions') generally, namely: a. A practice of relying on the Violence against women and girls policy and the Thrive+ policy as part a misconduct investigation before those policies had been officially launched. b. A practice of relying on the Violence against women and girls policy and the Thrive+ policy as part a misconduct investigation before training had been offered on those policies. c. Providing witness statement evidence the day before a gross misconduct hearing. d. A practice of requiring call handlers to sit in an office where people would walk behind them. e. A practice of questioning call handlers if they took longer than 12-15 minutes on a call. 18. The claimant claims the following substantial disadvantages compared to the non disabled comparator: a. The Claimant was subjected to the disciplinary process. b. The Claimant was dismissed. c. The Claimant was unable to fairly defend herself in the gross misconduct and appeal process. d. The Claimant's ADHD caused her inattention and procrastination and to be forgetful, and the diabetes caused her to be forgetful, which meant she needed more time to read documents and take in information and to respond. 18A Did the Respondent have knowledge of the alleged substantial disadvantage such as to have to make adjustments? 19. The claimant asserts the following as reasonable adjustments to avoid those disadvantages: a. Take into account her mitigating circumstances arising from her medical conditions, namely the Claimant's ADHD caused her inattention and procrastination and to be forgetful, and the diabetes caused her to be forgetful, which meant she needed more time to read documents and take in information and to respond. b. Providing adjustments to her role leading up to the incident, namely not having people walking behind the Claimant and not have someone question the Claimant as to why she was on calls for so long (if it was longer than the recommended time of 12-15 minutes). c. Considered an alternative to dismissal. d. Offered alternative sanctions such as redeployment or downgrading the type of calls taken e.g. 999 to 101. e. Providing an adjustment in relation to the gross misconduct hearing and the appeal hearing, namely providing the witness statement of Samantha Salmon in the hearing bundle and not the day before the hearing. Harassment related to disability 20. Did the Respondent engage in unwanted conduct as follows: a. On 21 February 2023, an Informal Management Action was issued to the Claimant by b. Sofia Papadopoulou (Professional Standards) did not send the Claimant the disciplinary hearing audio recording in a disc format, and instead sent it in an online format, which the Claimant could not access. c. Sofia Papadopoulou (Professional Standards) sent the transcript from the disciplinary hearing on or around 23 September 2023, which had sections missing from it, after the Claimant submitted her appeal on or around 22 August 2023. d. On or around 23 November 2021, Chief Inspector Redfearn made the decision to put the 21. If so, did the conduct have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 22. If not, did it have that effect? The Tribunal will take into account the claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 23. The Claimant relies on the following as protected acts: a. Her Tribunal claim under claim reference 331236716200 issued in 2018. b. Her complaint about Richard Hailstone dated 6 July 2021. c. Her Tribunal claim issued on 6 July 2023 under case number 332027251600. 24. Was the Claimant subject to the following detriments for doing a protected act: a. Her dismissal and the Respondent's decision to uphold this on appeal. b. The length of the suspension. c. The inability to apply for another role or go for promotion which caused a loss of potential earnings. d. In or around October 2022, the Information Rights Unit refused to give the Claimant rights of access to information. e. Sophia Papadopoulou (Professional Standards) did not send the Claimant the disciplinary hearing audio recording in a disc format, and instead sent it in an on line format, which the Claimant could not access. f. The dismissal letter barred the Claimant from accepting a position with another police force. This affecting potential pay and the ability to do a similar role despite having 21 years experience. g. On or around 23 November 2021, Chief Inspector Redfearn made the decision to put the Claimant in the same seat she was in before her suspension, instead of permitting her to stay at home.

h. The HR member of the disciplinary hearing panel told the Claimant it was the Respondent's policy to withhold information due to the case being live. Direct Race Discrimination 25. Was C treated less favourably as follows: a. Blaming the Claimant for the victim's assault despite the Claimant's actions to safeguard the 'victim' and the victim ignoring the Claimant's advice. b. On or around 23 November 2021, Chief Inspector Redfearn made the decision to put the c. On 2I February 2023, an Informal Management Action was issued to the Claimant by d. In July 2021, Richard Hailstone spoke to the Claimant in an unacceptable way in front of other colleagues, instead of taking the Claimant to one side, when he said words to the effect of "You know better than that, you've got experience, why didn't you add more to this incident, you should have added more" in respect of the level of detail the Claimant added to a CAD incident. 26. If so, was this treatment because of C's race? C says her race is Black Afro-Caribbean. If so, what is the respondent's explanation? 27. C relies on a hypothetical comparator white or non-Black African-Caribbean Communications Officer. Harassment on grounds of Race 28. Was the Claimant subjected to unwanted conduct related to her race? The Claimant relies on the following acts: a. In or around February 2023, while the Claimant was listening to something on her tablet, Julia Muir (supervisor) said the governor would not like the Claimant doing that and to put away her tablet, which was said in front of others. c. In July 2021, Richard Hailstone spoke to the Claimant in an unacceptable way in front of other colleagues, instead of taking the Claimant to one side, when he said words to the effect of "You know better than that, you've got experience, why didn't you add more to this incident, you should have added more" in respect of the level of detail the Claimant added to a CAD incident. 29. If so, did the conduct have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

[30]If not, did it have that effect? The Tribunal will take into account the claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Factual findings 30. This part of the judgment does not seek to address every point about which the parties have disagreed. It only deals with points which are relevant to the issues that the tribunal must consider in order to decide if the claim succeeds or fails. If I have not mentioned a particular point it does not mean that I have overlooked it, it is simply because it is not relevant to the issues.

[31]The claimant was employed by the respondent from 15 July 2002 to 8 August 2023 as a Communications Officer. The role involved handling 999 and 101 calls. She had 21 years’ service and was very experienced. She would handle 60 to 80 calls on average a day.

[32]Her dismissal related to an emergency 999 call on 4 August 2021 which I will henceforth refer to as “the 999 Call”.

[33]Prior to the 999 call the claimant was dismissed for gross misconduct in 2016 but subsequently that penalty was reduced to a written warning. She underwent retraining when she returned which she found helpful [712].

[34]The claimant also brought a previous employment tribunal claim in 2018 which she relies on as one of her protected acts in respect of her victimisation complaint.

[35]Further prior to the 999 call the claimant raised a complaint against Richard Hailstone on 15 July 2021. He was not her line manager, but he was supervising her shift on the day in question. She relies on this as a protected act and I will refer to it again at the end of my factual findings. The claimant’s medical conditions

[36]The claimant suffers from several medical conditions including:• diabetes

• ADHD

• hypertension

• repetitive strain injury

• asthma

• early onset Parkinson’s, as yet undiagnosed

• a thyroid growth, and

• a vocal cord condition

[37]As indicated above, the issues were amended at the hearing to confirm that the claimant is relying on diabetes, ADHD, hypertension, early onset Parkinson’s, a thyroid growth, and a vocal cord condition in these proceedings.

[38]The tribunal is required to address whether those conditions amounted to disabilities as defined by the Equality Act 2010 for the relevant period, which was 4 August 2021 (the date of the 999 call) to 19 November 2023 (the date of the outcome of the appeal against dismissal).

[39]Only diabetes 2 is admitted by the respondent as a disability within the definition of the Equality Act 2010. The respondent accepts that they were aware of that disability at the relevant time. The claimant asserts that it caused confusion (brain fog) and the inability to stay awake [113]. Adjustments were in place for that during the relevant period.

[40]As at the date of this hearing early onset Parkinson’s had not been diagnosed but the claimant had been undergoing tests. She wrote in her impact statement that it causes forgetfulness which she asserts could have affected her, for example, in the appeal hearing [114]. The respondent was not aware of the condition until these proceedings (SS/16).

[41]In respect of hypertension, which the claimant says causes headaches, the claimant’s line manager, Samantha Salmon, was aware that the claimant had occipital headaches when she took over her management in 2018 because she had been informed of that by the previous supervisor (SS/12).

[42]The thyroid growth was diagnosed in April/May 2022 and affects the claimant’s breathing and voice. One of her vocal cords has stopped working. The claimant accepted in submissions that it did not affect her during the 999 call itself because the condition developed after the date of the call. It did not deteriorate until April 2022 but she says that the problems with her voice affected her ability to defend herself in the disciplinary proceedings. Samantha Salmon was aware from 22 May 2022 that the claimant had issues regarding her voice (SS/44) and that she had a thyroid growth from 7 June 2022 (SS/17).

[43]The claimant received a diagnosis of adult ADHD from Dr Parkin, Consultant Psychiatrist, on 10 September 2020 [2114 to 2121]. He records the claimant referring to inattention and memory problems, and reporting that she struggles with management of household chores and paperwork. He concludes that there is evidence of childhood onset and that the ‘symptoms have resulted in considerable functional impairment’ [2118]. In her impact statement the claimant states that she is unable to focus for long periods, unable to study, and can be excessively verbal [113].

[44]When Samantha Salmon first referred the claimant to Occupational Health (OH) on another matter in 2019, the claimant raised the possibility that she had ADHD because a relative had been diagnosed with it. Samantha Salmon accordingly mentioned the possibility of the condition in the OH referral but the OH report noted that ADHD had not been diagnosed at that time and advised the claimant to return if it was diagnosed and if she needed adjustments (SS/13). The claimant accepted in evidence that she did not ask for any further adjustments after receiving the diagnosis.

[45]The claimant was not clear in evidence about whether she told Samantha Salmon that she had received a diagnosis of ADHD. In her witness statement she said that she told her in 2020 and asked for adjustments (C/9) but when challenged on this in cross examination she said she “thought” she had told Samantha Salmon, “but they say I haven’t.” I find that she did not. Samantha Salmon says that she found out when completing a further non-related Occupational Health referral on 18 March 2022 (SS/13).

[46]The claimant told the respondent about the diagnosis on 23 November 2021 because in acknowledging the notice of investigation about the 999 call she stated that she had “recently” been diagnosed with ADHD [1136]. She did not disclose the 2020 report until uploading it in June/July 2022 [2090]. The diagnosis was discussed and considered at the disciplinary hearing on 9 August 2023; the panel asked to see the 2020 report and they adjourned for over 30 minutes in order to consider it [ML/ 56].

[47]The claimant sat in an open plan office but she had a desk with her back to the window. The desks were arranged in a horseshoe shape with sound barriers around them and the claimant was at the far end of the horseshoe.

[48]A Stress Risk Assessment plan on 2 November 2019 provided for the claimant to have a designated desk and recorded that the claimant needed to take regular breaks [833-835]: ‘Jennifer has requested that she sit near a window in Despatch -- coach aware and will endeavour to use the desk closest to the window. Jennifer has personal issue equipment - has been reassured that no one else will be using her equipment and how others will work when relieving her. Coach aware that Jennifer needs to take regular breaks - Jennifer reassured that the medical conditions not disclosed to coach. Jennifer's desk in FC needs to be allocated specifically to her. I have sent an email to the GMT asking if they can pop a laminated sign on’ [834]

[49]Samantha Salmon can remember the claimant requesting to sit next to the window because she did not want too much foot traffic behind her (SS/29). Samantha Salmon cannot remember why or when she requested it, but the request was accommodated, and the only foot traffic behind her would be employees opening or closing the window or getting a spare chair. The emergency call on 4 August 2021

[50]An emergency 999 call was answered by the claimant on 4 August 2021. The call was from a 17 year old female who reported a recent sexual assault on her 16 year old sister by a 20 year old adult male who had got her sister very drunk with alcohol. This same person was making threats that he would share explicit sexual images of the caller unless she met up with him.

[51]The caller said she did not want the police to come to her house. The claimant assumed that was because she did not want her parents to know that she had shared explicit images.

[52]The claimant told the caller, incorrectly, that she could not report to a police station unless she was accompanied by an adult. That was incorrect. The police station would not have turned the caller away if she had attended without an adult. They would have designated an adult to support her. The claimant accepted in evidence that she was aware of this.

[53]At no point did the claimant advise the caller not to meet the perpetrator. She advised, if meeting him to see if he would agree to delete the sexual images, she should meet him in a public place to minimise the risk. On any commonsense view, that advice was inappropriate and put the caller at risk.

[54]As a consequence of the claimant’s handling of the call, no reported offences were recorded on the system. It was not passed on to despatch to action and it was not brought to the attention of a supervisor.

[55]Subsequently, and unfortunately, the 17 year old caller met with the perpetrator and an alleged sexual assault occurred. That came to the police’s attention due to the victim attending hospital and mentioning to the police after the assault that she had already called the police to report the perpetrator and had been given advice to meet him.

[56]I listened to the audio and as well as confirming that it accorded with the agreed transcript [899], I observed that the caller sounded young, upset and scared. When she talked about the explicit images being shared, she was crying. She was very polite right up to the end of the call, when she thanked the claimant for her time and help. The claimant did not appear to lose focus or sound distracted. The claimant did not demonstrate empathy to the caller.

[57]Relevant extracts from the call are as follows (the claimant is referred to as “OP”) [899-909]: Caller: “So I can't come by myself? [to the police station] Op: “No, cos you’re considered under age. If you’re under 18 you wouldn’t be able to go by yourself but if you’ve got someone like an aunt or a cousin or someone like that , that is over 18 , they could go with you to report it if you don’t want us coming to your home...” Caller: “Do you think I should come now to report it because he's literally saying that I have to meet him in an hour and I don't want to do anything with him”. Caller: “But he's talking about knowing where we live because on that night where he made my sister come out with him, he was gonna send an Uber to our exact address and that's what he's using to manipulate us further”. ...... Op: “So what, he wants to meet up and he’s saying if you don’t meet up with me then I'll show these pictures?” Caller: “he’s talking about how if I meet up with him he’ll delete it..” Op: “ok so if you do meet up with him and then don’t go alone and don’t go to q a quiet place. Go like a public place like a....” Caller: “So you think I should go and then just delete it?” Op: “Watch him delete it, if he doesn’t delete it then you know, you know, that he can’t be trusted but he probably can’t be trusted anyway ..because he’s using that to get you where, get you to the location, but if you do end up going, don’t go alone. Maybe go with a group, a group of friends and also don't go to his home or any place, go to a place where there's CCTV cameras like some sort of restaurant or something like that, you know, some sort of food courts or something like that but don't go along and don't to a quiet place where he can get you off by himself and then watch and see if he deletes it. If he doesn't delete it after you meet him then you know that you can't trust him anyway but I'm not saying you should, it depends on what threats he's made.” ...... Op: “do you want me to put which police station you want to report it at or are you waiting to see what he does once you… Caller: “yeah I’m gonna wait I’m just gonna go and I’m gonna see what happens, if it gets out of hand then I will actually report it” Op: “And don't go by yourself, don't let him talk you into going any quiet and lonely spots.”

[58]It would be clear to a reasonable person listening to the call, even without any training or experience, that a potential crime could well occur and that the report needed to be followed up urgently. The claimant should have advised the caller not to meet the perpetrator under any circumstances [PR/20].

[59]There were clear safeguarding triggers because both victims were under 18. In those circumstances an operator is required to apply the respondent’s policy, THRIVE+, which is an assessment of vulnerability. THRIVE+ stands for Threat, Harm, Risk, Investigation, Vulnerability, Engagement and Prevention, plus intervention [254 to 255] (MH/30).The claimant accepted in cross examination that THRIVE+ had been rolled out to her department by the time of the incident and that she was well aware of it.

[60]The respondent has also implemented a Violence Against Women and Girls policy. It was unclear from the evidence I heard whether that had been implemented at the relevant time. However I find that was not material. I do not accept that it was necessary for the Violence Against Women and Girls policy to be in place for the claimant to know that the way she handled the call was grossly inadequate. There is also no reference to the respondent relying on the policy in the bundle.

[61]In a quality assurance (QA) procedure Alison Hollick (acting supervisor) listened to the call [910] and observed failures in active listening, reassurance, and safeguarding. She selected “inattentive” from the drop down menu and noted the caller’s name was misspelt (which could be a problem if Intel were used to try and trace her).

[62]Alison Hollick’s stated (AH/28): “From listening to the call, I considered you could immediately tell the caller was distressed and had a young sounding voice. I felt that Ms Gordon came across very matter of fact and in a way that could be perceived as uncaring. I considered there was not the reassurance for the caller displayed by Ms Gordon that I would expect to hear from a call handler with as much experience as she had.’

[63]Alison Hollick emailed Samantha Salmon, the claimant’s supervisor [912]: ‘The incorrect type codes are used and there is no control of the call, the op is more concerned about the caller being under 18 and reporting than making sure that they remain safe. She does not warn against meeting the suspect despite the various offences mentioned. The demand was not passed to despatch and was not dealt with in the correct manner’

[64]Despite describing herself as very protective of her staff, on hearing a summary of the call, Samantha Salmon said she was “appalled, astounded, deeply disappointed” (SS/41).

[65]Moreover, the claimant compounded the mishandling of the call by a failure to record a crime code and wrongly grading it. An appropriate code would be sexual offence/child at risk. Using that code would have resulted in the claimant seeing a prompt on the system to a standard operating procedure (SOP) advising a course of action and, importantly, highlighting the need to pass the details to despatch. She graded the call “R” for referred which meant that advice had been given and no follow up was required. The appropriate grade would be “S” for soonest which would have meant that officers should be sent out. In this case, where there is no address, they could look on Intel to attempt to identify the caller or perpetrator.

[66]The claimant has given varying and sometimes inconsistent explanations both during the disciplinary proceedings and during these proceedings for the way she handled the call.

[67]She acknowledges that she graded the call “R” but suggests that she may have intended to pass it on the supervisor and forgotten to do so. She cannot remember whether that was the case. In the gross misconduct hearing she suggested ADHD was the reason.

[68]In common with the findings at the disciplinary hearing itself I do not accept either of those explanations. Listening to the content of the call, the claimant clearly intended to shut it down and did not intend to refer it to a supervisor.

[69]The claimant accepted under cross examination that the caller had made two criminal allegations and she should have put in a criminal offence code. She said that she was not sure what to do because it was not the caller alleging an offence, it was an offence against her sister; alternatively she was unsure how many codes she could put in (it is actually three, and she accepted that in cross examination).

[70]It was clear that she knew about the codes and the SOPs and I did not find it credible that she did not know the correct course of action to take.

[71]The claimant also sought to blame a lack of training for the errors. The respondent maintains that their records of training [811, 1216, 1269, 1351, 1604] confirm that the claimant’s training was up to date. The claimant did not raise with a supervisor that she needed any more training. Moreover, I find, as did the disciplinary panel, that it was not a training issue that caused her to make errors. She accepted in cross examination that she had given incorrect advice regarding the police station and was aware of safeguarding duties. In terms of the advice given about meeting the perpetrator, the claimant has not conceded it was the wrong advice, but it is clear to any reasonable person that it was not sensible advice. Further training would not have altered the way she handled the call.

[72]A further reason proffered by the claimant for mishandling the call was time pressure. Call operators are checked on by their supervisor after 10 to 15 minutes on a call as a supportive measure. I find, as did the disciplinary panel, that time was not a factor in how she handled the call. The claimant had never been disciplined or criticised for taking too long on calls.

[73]The claimant says she cannot remember how she felt on the day and she had taken suicide calls. She refers to the fact that Alison Hollick recorded in the QA that she was inattentive and relies on that as an indication that she was unwell or affected by ADHD. Alison Hollick explained in evidence that the word “inattentive” was a drop-down option and not her personal choice of wording. I am satisfied from hearing Alison Hollick’s evidence that what she meant was that the claimant was not personally attentive to the caller rather than meaning that the claimant was distracted and unfocussed. In addition, having listened to the call I did not consider that the claimant appeared to lose concentration. Investigation

[74]On 7 August 2021 an MM1 Assessment Conduct and Performance form was completed by Matt Cowley, a supervisor [927].

[75]The claimant was not informed then that she was under investigation, and the QA was not fed back to the claimant until January 2022. The reason for that was unexplained.

[76]In the meantime, however, further QAs were carried out that also raised concerns but where, fortunately, the outcome was not so serious. 28 calls were listened to, of which 6 did not reach the required standard [PR/24]. On 25 August Paul Redfearn decided to take the claimant off 999 calls and restrict her to 101 calls [1000].

[77]On 27 September 2021, the Independent Office for Police Conduct confirmed that they had decided that this matter was suitable for local investigation [1036].

[78]On 15 November 2021, the claimant was served with Notice of Investigation [1134] by Samantha Salmon. Monica Omonua (Specialist Investigation Officer for Department of Professional Standards) was to be the investigating officer. The Notice of Investigation alleged that the claimant gave incorrect advice on a call which later led to X being a victim of a sexual assault.

[79]On 16 November 2021 Paul Redfearn decided a Restriction Notice was required and the claimant was removed from all public calls including 101 on the grounds of public safety [1106].

[80]Under the Restriction Notice the claimant was allocated Domestic Abuse (DA) duties. That involved calling up DA records when required by a request, perhaps at a time when a person is in custody, meaning they are needed immediately. That task is normally undertaken by a supervisor and is not a full-time job in itself.

[81]The claimant complains that Paul Redfearn required her to come into the office. In the issues it is expressed as her being placed in the same seat she was in before her suspension. She clarified in cross examination that what she meant was not literally the same seat but that she was asked to come into the office. She thought she should have been permitted to stay at home because that was what had happened in the previous misconduct proceedings she was involved in. In oral evidence she said that coming into the office enabled other staff to take potshots at her. When questioned what she meant by this she referred to the allegations of harassment at paragraph 28 of the list of issues (harassment related to race).

[82]The claimant’s evidence demonstrated she had misunderstood the situation. She had not been suspended. Paul Redfearn’s evidence was that he thought it was preferable to keep her in the workplace and he did not see it as a detriment for her to stay at work. He was attempting to be handle the situation discreetly and sensitively (PR/20).

[83]On 12 January 2022 Monica Omonua sent the claimant a Fact Find List consisting of 36 questions [1163]. Sending a list of questions rather than having a face to face meeting was normal practice during the covid pandemic [1182].

[84]The claimant preferred a face to face meeting and accordingly arrangements were made for her to attend a face to face interview [1529]. The claimant was off sick from early January to 31 March 2022 which delayed the investigation interview [MO/83].

[85]In addition the claimant raised concerns about accessing the record of the 999 call. On 23 February 2022 Monica Omonua sent the claimant a reformatted CHS log of the call [1383] and the recording was reviewed internally and shared under supervision in April 2022. The log was viewed on 20 April 2022 with the claimant’s trade union representative [1476].

[86]The face to face interview took place on 15 July 2022. The claimant attended with her union representative [1606 to 1659]. On 1 August 2022 a conduct investigation report was produced [1754].

[87]Following that, in or around October 2022, the claimant alleges that the Information Rights Unit refused to give her rights of access to information. Danielle Purchase was the relevant manager at the time. Her first contact with the claimant was in October 2022. She knew nothing about the claimant or her previous tribunal claim (DP6-8). She could not provide the emails requested immediately because the claimant did not give the required consent (DP/13) but following receipt of the required consent the information was provided (DP/21).

[88]On 19 April 2023 the respondent’s Directorate of Professional Standards confirmed there was a gross misconduct case to answer [1808-1823]. The claimant was sent an invitation to a gross misconduct hearing on 29 June 2023 [1934]. Disciplinary Hearing

[89]The gross misconduct hearing took place on 9 August 2023 before Superintendent Mark Long (chairperson) and two independent panel members, Sophie Sterling and Alexine Benson [1967]. The panel had a bundle of documents, index [1965] and minutes [1967].

[90]The claimant was accompanied by her union representative, Mr John HolmesYard. The claimant prepared a statement [1943], raising 12 points including that it was standard to grade a call as “R” and pass it to a supervisor when an operator is unable to obtain the address, the caller was “clearly reluctant to give information”, her ADHD was not taken into consideration and there was pressure to end the call if it was too long, She maintained that she did give safeguarding advice, which was to meet in a public place. She alleged she had not received adequate training on THRIVE and it was not compulsory until January 2022.

[91]In their findings [2087], the panel confirmed incorrect advice, failure to escalate, misclassification and no safeguarding. They decided the transcript demonstrated no loss of focus and the claimant had not provided any evidence to corroborate the impact of ADHD (ML/67). It was noted the claimant showed no remorse and appeared satisfied that the advice she had given was appropriate (ML/95).

[92]Dismissal without notice was deemed proportionate and a dismissal letter was sent on 9 August 2023 [2093].

[93]The claimant alleges she was not allowed to put forward mitigation. She was offered the chance to put character references or mitigation and she did put forward two character references. At the appeal hearing the claimant and her representative were given a chance to identify any mitigation points they would have wanted to raise but they were not able to identify any (MH/5). When challenged in evidence she said she was not allowed to “stand up" and that Mark Long had said he would give them a chance but he came back and he did not.

[94]The claimant was also critical that Sophie Stirling, in the disciplinary hearing, said it was permissible to refer to previous gross misconduct warnings from 2016 because it was the claimant herself that had raised that in her investigation interview [1981]. The respondent denies that the previous warning played a significant part in their decision (ML/41) (SS/31). This was revisited at the appeal stage and the appeal panel were satisfied that it did not play a significant part or alter the decision.

[95]The claimant criticised the failure to make reasonable adjustments in the hearing, specifically alleging the panel should have provided the witness statement of Samantha Salmon in the hearing bundle and not the day before the hearing. She does not complain about calling Samantha Salmon as a witness at short notice but I accept she may be raising that as well and I have considered it when assessing the fairness of the procedure adopted.

[96]Samantha Salmon attending the hearing at short notice came about because, one of the panel members, Ms Benson, on looking at the papers, noted it would be helpful to have the line manager there to talk about the reasonable adjustments which were already in place for the claimant (ML/31) [1977]. Samantha Salmon was not able to confirm that she could attend the hearing until the day before.

[97]The claimant was unable to say in the appeal or in evidence to the tribunal what she would have done differently if she had had more notice. The appeal hearing was 12 weeks after the gross misconduct hearing. She said she wanted more time to prepare questions but not what questions she would ask. She and her representative were allowed to ask question and her representative asked Samantha Salmon a lot of questions. I find the claimant was not disadvantaged by Samantha Salmon attending at short notice and, if anything, Samantha Salmon attending helped the claimant because it enabled the panel to ensure they fully understood her conditions, the adjustments she needed and how that could impact on her role.

[98]The claimant complains that Sophie Sterling told her that it was the respondent’s policy to withhold information because of the case being live [1990]. That relates to the claimant requesting emails dating back to 2020 which may have shown that Samantha Salmon knew about her ADHD. She says that was a detriment because she did a protected act (issue 23h). She has not explained how it was a detriment or how it was related to an alleged protected act. I found it had no impact on the outcome of the hearing because the respondent was aware of her ADHD by then and proving that they were aware earlier (which I have found they were not) would not have made any difference to their decision.

[99]The dismissal letter barred the claimant from accepting a position with any other police force. This policy is applied in all gross misconduct dismissal cases (SP/36). Appeal

[100]The claimant appealed on seven grounds. The appeal hearing took place on 7 November 2023 [2147]. Marie Heracleous was the appeal chair and she was assisted by Dave Stuart. The appeal outcome letter is dated 19 November 2023 [2196]. The appeal was dismissed and the finding of gross misconduct upheld.

[101]The appeal panel considered mitigation. The potential impact of ADHD and diabetes was considered again but the panel decided that the seriousness of what had occurred outweighed that consideration. Marie Heracleous was particularly concerned that the claimant still did not accept the caller was vulnerable (MH/29). The claimant did not think she had done anything wrong even at that stage and appeared to blame the victim contrary to the respondent’s values (MH/66 and 67). The claimant conceded that she could have advised the caller not to go and meet the perpetrator but in her view that would only be to “cover the MET” (MH/64) [2171].

[102]The claimant says that she was coughing a lot in the appeal meeting and found it difficult to communicate but the notes show that her vocal cord condition was taken into account and she was asked if she wanted more time. If she had asked for a break she would have been given one. She was also accompanied by her union representative.

[103]The claimant alleges Sofia Papadopoulou did not send her the disciplinary hearing audio recording in a disc format but sent it online and she could not access it. The transcript was sent by post (SP/24) on or around 23 August 2023 (SP/24). The actual audio was uploaded to a document sharing platform called BOX on 12 September 2023 (SP/28) because it was too large to send as an attachment. There were some minor omissions on the transcript where parts of it were inaudible, but they were not significant and would not have affected the claimant’s ability to prepare for the appeal. Other complaints

[104]Following advice from HR Samantha Salmon issued a 12 month informal management action in accordance with the Attendance Management Policy for the period 21 February 2023 to 20 February 2024. As of February 2023, the claimant had five periods of 81 days sickness in 12 months. Samantha Salmon discounted one period of 21 days for mental health absence and a further 25 % which amounted to 3 days for disability related absences. This still resulted in 4 periods of absence covering 57 days which triggered the informal management action (SS/91 to 96).

[105]In or around February 2023 Julia Muir, the Supervisor for the claimant’s shift that day, noted that the claimant was listening to something on her tablet. After checking that she was not on her break, she told the claimant that the governor would not like her being on her tablet. It was in breach of policy to use personal devices at work [2221].

[106]The claimant said that this was said in front of others. The layout of the office has been described above. In summary there were sound barriers around the claimant’s desk. Others were unlikely to hear the comment (JM /24).

[107]The claimant could not put forward any evidence to explain how the comment was related to her race including when it was put to her in cross examination.

[108]On 15 July 2021, the claimant raised a complaint against Richard Hailstone. Richard Hailstone said to her: "You know better than that, you've got experience, why didn't you add more to this incident, you should have added more.”

[109]Richard Hailstone required urgent information from the claimant following a 999 call because despatch had asked for it. It was urgent because officers were on site at the time. He went over to the claimant’s desk and she paused the call she was on and told him she had dealt with it. He returned to his desk but found no update on the system. When he returned to her desk again he noted that she was on the call to the original caller. She had apparently called them back to obtain the information (RH/13 onwards). He explained in evidence how he went up to her and crouched down to speak to her. He did not think he was heard by others.

[110]The claimant raised as grievance about this but did not pursue it. She has not put forward any evidence explaining how she says the incident was related to race.

Law

[111]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Section 98 of the 1996 Act deals with the fairness of dismissals.

[112]There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). The potentially fair reason in this case is conduct.

[113]Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.

[114]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[115]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in British Home Stores v Burchell

1980 ICR 303

. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones

1982 IRLR 439

, Sainsbury’s Supermarkets Limited v Hitt

2003 IRLR 23

, and London Ambulance Service NHS Trust v Small

2009 IRLR 563

[116]The Tribunal should also refer to the ACAS code of practice on Discipline and Grievance Procedures 2015 and take account of the whole process including any appeal (Taylor v OCS Group Ltd

2006 ICR 1602

, CA).

[117]The EAT in Philander v Leonard Cheshire Disability EAT 0275/17 confirmed that misconduct can be deliberate or inadvertent. Gross negligence, as well as deliberate wrongdoing, can amount to misconduct and can constitute repudiatory conduct. Disability

[118]The burden of proving disability is on the Claimant. She must show that at the material time she had a physical or mental impairment which had a long term and substantial adverse effect on her ability to carry out normal day to-day activities.

[119]Section 6 (1) of the Equality Act 2010 states: (1) A person (P) has a disability if- a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

[120]The activities affected must be "normal". The Equality Act 2010 “Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011” (the Guidance) states (D3): ‘In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.’

[121]Schedule 1 (paragraph 2) to the Act provides that an impairment will have a long-term effect only if it has lasted at least 12 months, is likely to last for 12 months or is likely to last for the rest of the life of the person affected. Section 212 of the Equality Act 2010 defines ‘substantial’ as’ more than minor or trivial.’

[122]In relation to whether an impairment had a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, the focus is upon what the person either cannot do, or can only do with difficulty, rather than on the things that the person can do (Goodwin v The Patent Office

[1999] ICR 302

[123]The issue of knowledge of disability is relevant to direct discrimination and to both reasonable adjustment claims and section 15 discrimination arising from disability claims. Knowledge is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known).

[124]For a claim relating to the duty to make reasonable adjustments the employer needs to have knowledge of both the disability and the substantial disadvantage that the employee is subject to. That is an additional requirement to that required for discrimination arising from disability where the employer only needs to have knowledge of the disability. Discrimination: Burden of Proof

[125]The Equality Act (EqA) 2010 provides a shifting burden of proof. Section 136 provides as follows: “(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. “

[126]Consequently, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. Those facts include whether the claimant had a disability at the relevant time, that he or she was subject to unfavourable treatment, a link between the disability and the ‘something’ that is said to cause the unfavourable treatment, evidence from which the Tribunal can infer that the ‘something’ was an effective reason or the cause of the unfavourable treatment. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[127]In Shamoon v Chief Constable of the Royal Ulster Constabulary

(2003) ICR 337

, Lord Nicholls in the House of Lords (NI) said that the Tribunal should focus on the primary question which was why the complainant was treated as he or she was. The issue essentially boiled down to a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others?

[128]In a complaint of failure to make reasonable adjustments, for the burden to shift, the claimant must demonstrate that there is a PCP causing a substantial disadvantage and evidence of some apparently reasonable adjustment that could have been made (Project Management Institute v Latif

2007 IRLR 579

, EAT). Where the burden shifts to the respondent, the respondent must then prove on the balance of probabilities that the respondent did not fail to make reasonable adjustments.

[129]In a complaint of discrimination arising from disability, the claimant must show that they have a disability and have been treated unfavorably by the employer. It is also for the claimant to show that ‘something’ arose as a consequence of their disability and that there are facts from which it could be inferred that this ‘something’ was the reason for the unfavourable treatment. Where the burden shifts to the respondent the respondent can defend the claim by showing that the treatment was a proportionate means of achieving a legitimate aim.

[130]The respondent is 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 the Tribunal must make a finding of discrimination.

[131]In a complaint of direct discrimination, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment. Direct discrimination

[132]Direct discrimination is defined in section 13(1) as follows: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[133]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies.

[134]The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical comparator. Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed

[2009] IRLR 884

, in most cases the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator. Discrimination arising from disability (s.15 EqA 2010)

[135]Section 15(1) EqA 2010 provides: (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Duty to make reasonable adjustments

[136]Section 20 EA 2010, so far as is relevant to the facts of this case, states: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

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

[137]The phrase “provision criterion or practice” should be construed widely and the EHRC Code indicates that it can include “one-off” decisions and actions. In Ishola v Transport for London

[2020] EWCA Civ 112

Simler LJ stated, ‘In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. ...In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” Harassment

[138]Section 26 Equality Act 2010 provides: “(1)A person(a) (A) harasses another

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

[139]The EAT in Richmond Pharmacology v Dhaliwal

2009 ICR 724

, EAT, gave some guidance as to how the ‘effect’ test should be applied. It noted that the claimant must actually have felt, or perceived, his or her dignity to have been violated or an adverse environment to have been created. If the claimant has experienced those feelings or perceptions, the tribunal should then consider whether it was reasonable for the claimant to feel that way. If the tribunal finds that there was no such effect, then that will be an end to the matter.

[140]Section 27 EqA 2010 provides: ‘(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because: a) B does a protected act […]’

[141]A ‘protected act’ includes ‘making an allegation (whether or not express) that A or another person has contravened the EqA 2020. In order to constitute a protected act under s.27(2)(d) EqA 2010, it is necessary that ‘facts should be asserted which are capable in law of amounting to an act of discrimination’ (Kokomane v Boots Management Service Ltd

[2025] EAT 38

) Submissions

[142]Both parties made written and oral submissions which I have taken into account in reaching my conclusions. Conclusions Medical conditions

Conclusions

[143]The respondent acknowledges the claimant’s Diabetes Type 2 was a disability as defined by Equality Act (EqA) 2010 at the relevant time and that they had knowledge of that disability.

[144]In respect of the other conditions, ADHD, hypertension, early onset Parkinson’s, a thyroid growth and vocal cord condition, the burden of proving disability is on the claimant. She must show that at the material time the alleged impairment had a long term and substantial adverse effect on her ability to carry out normal day to-day activities.

[145]The claimant’s case is that the conditions relied on caused her to lose focus and suffer attention and memory lapses (list of issues 15); specifically that ADHD caused inattention, procrastination and caused her to be forgetful and diabetes caused brain fog and inability to stay awake [113] and caused her to be forgetful which meant she needed more time to read documents, take in information and respond ((list of issues 18d). She also believes that she has early onset Parkinsons disease which she says causes forgetfulness.

[146]There is therefore an overlap between the symptoms she claims to suffer from relating to diabetes, ADHD and early onset Parkinsons.

[147]In addition, she has argued that that her vocal cord condition affected her ability to communicate during disciplinary hearings and that the condition, hypertension, caused headaches. Those arguments are not directly reflected in the list of issues. Only diabetes and ADHD is specifically linked to the respondent’s conduct or her claim for reasonable adjustments in the list of issues. ADHD

[148]Although the claimant relied on a psychiatrist report, which concluded that the symptoms the claimant reported resulted in considerable functional impairment, the claimant provided very limited evidence to the tribunal of the effect of symptoms on her day to day life. She did not provide examples of what the condition stopped her doing, other than studying. I struggled to disentangle the alleged effects from diabetes, which she claimed causes forgetfulness and brain fog. In considering the effect of the alleged symptoms on her day to day life I noted that the claimant did not make Occupational Health aware or request further adjustments at work in addition to the adjustments in place for diabetes despite the fact that Occupational Health had invited her to contact them if she obtained a diagnosis. While accepting that the statute requires me to consider the effect on her day to day life and not her work life the lack of evidence of effect on day to day life together with the failure to report her diagnosis leads me to infer that the symptoms did not have a substantial and long-term adverse effect on her ability to carry out normal day to day activities.

[149]I also decided that the respondent could not reasonably be expected to have had knowledge of ADHD for part of the relevant time. In 2019 the claimant told Samantha Salmon that a relative of hers had ADHD and that she thought she might have it. I find that is not sufficient to find that the respondent ought to have known that the claimant had the condition.

[150]The claimant first referred to her diagnosis of ADHD in the Notice of Investigation Response in November 2021 when she said she was “recently diagnosed". I find that the respondent was aware that the claimant had the condition ADHD from November 2021.

[151]I note here that the respondent took the condition into account from the date of knowledge and it informed how they dealt with the disciplinary proceedings. They considered it in the gross misconduct hearing, requesting a copy of the report, and in the appeal. Early onset Parkinsons

[152]The claimant has not received a diagnosis of Parkinsons disease. She suspects that she has the disease. She says that it causes forgetfulness but that is also the case with diabetes. On the basis that she has not established she has the impairment, the limited evidence she has put forward about the impact and the overlap with the accepted condition of diabetes, I am unable to find that Parkinson’s disease was a disability at the relevant time for the purpose of the EqA 2010.

[153]In addition, I find the respondent was not told that the claimant considers she may have the condition until these proceedings. Hypertension

[154]Although Samantha Salmon was aware that the claimant suffered from headaches, which the claimant says were caused by hypertension, the claimant has not shown or sought to argue that headaches had a substantial effect on her day to day life and I therefore find that hypertension was not a disability at the relevant time.

[155]Moreover she has not linked headaches to her conduct or the need for reasonable adjustments in the list of issues. Vocal cord condition and thyroid growth

[156]The clamant accepts that she did not have the conditions affecting her voice at the time of the call. She was diagnosed in April/ May 2022 and the respondent was aware of the conditions from May 2022 and June 2022 respectively. The claimant has not submitted cogent evidence of the effect on her day to day life and I find that she has not established that the conditions amounted to a disability at the relevant time. Effect of medical conditions.

[157]As set out below, I find that the symptoms the claimant attributes to her medical conditions (forgetfulness, procrastination or inattention, time to read documents, take in information and respond) did not affect how she dealt with the 999 call. I find that the symptoms (including those affecting her voice) did not disadvantage her during the disciplinary and appeal process.

[158]Accordingly, even if I had found any of the conditions other than diabetes constituted a disability, that would not alter my decision to dismiss the claimant’s disability complaints.

[159]It is for the respondent to show a fair reason for dismissal. The respondent says it was conduct. I find that the respondent genuinely believed that the claimant was guilty of misconduct because of the way she handled the 999 call. The belief was formed on the grounds of a very reasonable and extensive investigation, about what the claimant said and did and what she should have done.

[160]The respondent’s disciplinary process considered and reasonably rejected all the hypothetical reasons that the claimant put forward for mishandling the call, including her medical conditions and alleged lack of training.

[161]It was within the range of reasonable responses for the respondent to decide that the mishandling of the call was gross misconduct because the way the call was handled could and did lead to grave consequences (paragraph 58 above). Conduct can include gross negligence; it need not be deliberate or malicious.

[162]Dismissal was within the range of reasonable sanctions because the mishandling of the call was grossly inadequate. The claimant showed no remorse and the respondent reasonably thought that a similar event could happen again.

[163]Alternative sanctions were reasonably rejected by the respondent because of the risk of a similar event. The claimant suggested redeployment but the respondent had reasonably lost confidence in the claimant dealing with the public. All alternative roles available were public facing except the DA tasks which were temporarily allocated to her. The DA tasks were usually dealt with by a supervisor as part of their role and did not comprise a separate role. It was not practicable to put the claimant on 101 only duties because 101 callers can also report emergencies. Constant monitoring would be needed. A formal warning would not remove the risk that the conduct would occur again because the claimant did not accept that the advice she gave was negligent (paragraphs 91,101).

[164]The process the respondent followed was fair. There was an investigation in which the claimant was offered written questions (which could have helped regarding the symptoms she suffers from due to her voice condition). At her request a face to face meeting took place. She was given the opportunity to put her case, which included speculation from her about why she acted as she did. She was accompanied by her union representative at all stages and allowed a right of appeal. The appeal hearing considered all the points she had previously made and additional points.

[165]The panel being referring to a previous misconduct hearing in 2016 did not make the process unfair. I am satisfied that the panel reasonably thought the conduct was so egregious that they would have dismissed anyway (paragraph 94 above).

[166]In submissions the claimant highlighted that there was a delay of three months from the 999 call before she was told about the investigation. That complaint has not been referred to in the list of issues. I have nevertheless considered it. I have decided that it did not make the procedure unfair. Although the claimant was understandably aggrieved when she found out that an investigation had been started without her knowledge, I find that she was not disadvantaged. When she was told about the investigation she was able to listen to the call again. An accurate transcript was provided. If the claimant had been notified immediately after the 999 call she may have remembered more clearly how she was feeling on the day or why she handled the 999 call in the way she did. But the disciplinary process gave consideration to all the possible reasons the claimant put forward that could have applied on the day (for example forgetfulness, headache, lack of training). The respondent reasonably decided that none of the speculated reasons were an excuse for the mishandling of the call or mitigation.

[167]The claimant has made much of the fact that she did not have unrestricted access to the recording. I find that there was no unfairness in that. The transcript was largely accurate. Only 4 minor amendments were agreed when the claimant compared it to the transcript in the bundle. It did not disadvantage the claimant in any way not to have unrestricted access to the recording itself.

[168]Accordingly the complaint of unfair dismissal does not succeed. Discrimination

[169]I deal below with the allegations of discrimination. In accordance with the case of Shamoon I have focused on the reason why the respondent acted as they did in respect of each issue. Direct disability discrimination

[170]The claimant needs to show that the respondent discriminated against her “because of” her disability. It is for the claimant to establish facts from which the tribunal can reasonably conclude that the respondent has contravened the EqA 2010.

[171]The claimant alleges direct disability discrimination because she was subjected to the disciplinary process and to allegations of gross misconduct. Further that the respondent did not consider alternative sanctions, dismissed her and decided not to uphold her appeal. I found that the respondent applied their policies and procedures to the claimant as they would to a person who was nondisabled. The claimant did not put forward any evidence that the respondent would have treated a non-disabled comparator any differently. No facts have been put forward by the claimant to shift the burden of proof. But even if the claimant had established facts shifting the burden of proof there was a clear non-discriminatory reason for the respondent’s actions (gross misconduct) which I refer to in my findings on unfair dismissal above.

[172]The list of issues alleges direct discrimination on the grounds that the Quality Assurance form which Alison Hollick completed recorded that the claimant did not spell the caller’s name correctly and was inattentive. The claimant has not explained why she asserts those actions were ‘because of’ her disability, and I find the allegation better characterised as discrimination arising from disability where it also appears. I deal with this below.

[173]The claimant asserts that she was directly discriminated against because of her disability because she was required to carry on working during what she understood was a suspension, I found that was a misunderstanding on the claimant’s part. She was not suspended; she was under a Notice of Restriction. Paul Redfearn credibly considered that would be a more sensitive way to handle the situation, rather than suspending the claimant. There is no evidence or reason to believe that a non-disabled comparator would be treated any differently.

[174]The informal management action issued by Samantha Salmon was in accordance with the respondent’s usual policy and practice and there is no evidence that because had a disability or a non-disabled person would be treated any differently.

[175]Accordingly, the complaints of direct disability discrimination do not succeed. Discrimination arising from disability

[176]The claimant’s “something arising” is that her conditions caused her to lose focus and suffer attention and memory lapses. The claimant has only established that the condition of diabetes was a disability, to which she attributes her forgetfulness. I will nevertheless consider all three symptoms in this part of the judgment.

[177]In respect of how the claimant handled the call, I found that the claimant did not lose focus or suffer attention lapses. I reached this conclusion when listening to the recording of the call (paragraph 56 above). It was the same conclusion as that reached by the respondent during the disciplinary process.

[178]In submissions the claimant argued that the QA recording the caller’s name being misspelt and the selection of the box “inattentive” by Alison Hollick was evidence that her conditions affected the way she dealt with the call. I accepted Alison Hollick’s evidence that she did not mean that the claimant was inattentive in the sense of being distracted, but that she was inattentive to the caller’s requirements (paragraph 73 above).

[179]I found that the incorrect advice, the failure to record the correct codes and grade the 999 call so that it was followed up was not because she lost focus, her attention lapsed or because of forgetfulness. She was an experienced operative. She knew the crime codes that should have been entered and if she had entered them correctly the Standard Operating Procedure would have ensured the call was followed up (paragraphs 66 to 70 above).

[180]Although the claimant said that she graded the call “R” and meant to pass it on, but forgot, I did not accept the claimant’s evidence on that. The R grading and the content of the call showed she clearly intended to close it down.

[181]I do not follow why not being able to state her mitigation at the disciplinary hearing amounts to discrimination arising from disability. But, in any case, I found that the claimant was given the opportunity at the hearing and again at the appeal.

[182]The claimant has not explained how a reference to a previous gross misconduct hearing amounted to discrimination arising from disability, but in any event, I found that the respondent would have made the decision to dismiss even if it were not for the previous disciplinary action.

[183]I find that the informal management action issued by Samantha Salmon on 21 February 2023 discounted the claimant’s time off sick for disability and therefore did not arise from her disability (paragraph 104 above).

[184]I have considered whether there was another sanction that could have been applied, and I am satisfied that there was not. As discussed under unfair dismissal the respondent could not reasonably identify anything that would not risk the same conduct occurring again.

[185]Accordingly, the complaints of discrimination arising from disability do not succeed. Failure to make reasonable adjustments

[186]The claimant alleges there was a practice of relying on the Violence Against Women and Girls policy and the THRIVE+ policy as part of a misconduct investigation before training had been offered and before they were officially launched.

[187]I found that THRIVE+ had been launched and training had been given by the time of the 999 call.

[188]The Violence Against Women and Girls policy may not have been launched by then, but the launching of the policy and training on it should not have been required for the claimant to realise that she should have handled the call differently. In any event there is no reference in the bundle to the respondent relying on it (paragraph 60 above).

[189]The claimant does not link any reasonable adjustments to the policies or set out in the list of issues how she was put at a substantial disadvantage. These allegations do not succeed because the claimant has not established grounds for a reasonable adjustment to be made.

[190]I find claimant has not established that providing witness evidence the day before a gross misconduct hearing was a PCP. It was a one-off act in response to a suggestion by a panel member that it would be useful for Samantha Salmon to attend (paragraph 96 above). But, in any event, I find that the claimant was not disadvantaged. It would not be reasonable to agree not to call a witness or produce a statement the day before. Any disadvantage could be alleviated by the claimant having the opportunity to put questions, being represented and given a right of appeal.

[191]The adjustment of not having people walking behind the claimant had been addressed previously when the claimant was allocated a designated desk which meant that people were unlikely to walk behind her (paragraphs 47-49 above). I do not find it would be reasonable to completely prevent people from walking behind her.

[192]I accepted the respondent’s evidence that monitoring calls was a supportive measure. The claimant was never disciplined or criticised for taking too long on calls. I find it would not be reasonable to cease monitoring calls, because that would remove a potential source of support for call handlers.

[193]Accordingly the complaints of failure to make reasonable adjustments do not succeed. Harassment related to disability

[194]To establish harassment under the Equality Act 2010 the claimant is required to establish that the conduct has the purpose or effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. In addition that the conduct is related to her disability.

[195]The claimant has not explained how any of the conduct alleged had that purpose or effect or how it was related to her disability.

[196]The claimant has not explained how not being sent the audio recording of the disciplinary hearing in a disc format constitutes harassment related to disability. The claim appears to be misconceived. It also appears under victimisation and I will deal with it there.

[197]The claimant has not explained how being sent the transcript on 23 September 2023 with sections missing from it constitutes harassment related to disability. It may be that she intends it as a criticism of the fairness of the dismissal and appeal, rather than harassment. However the omissions in the transcript were not significant and I find that she had it before the appeal hearing and was not disadvantaged in any way (paragraph 103 above).

[198]The informal management action may have been unwanted by the claimant but I do not find it was intended or reasonably had the effect proscribed by the statute. In addition it was not related to her disability because it discounted absence related to disability.

[199]The claimant argued that being required to work during what she thought was a suspension gave the respondent a chance “to take potshots at her.” She clarified that she meant the factual allegations connected to harassment related to race (paragraph 81 above). That can only relate to the allegation against Julia Muir in February 2023 because she withdrew the one against Maggie Considine-Holding and the one with Richard Hailstone took place before that date. The allegation against Julia Muir was harassment related to race, not disability, and in any event I found that it was not made out (see below).

[200]Accordingly the complaints of harassment related to disability do not succeed.

[201]The claimant relies on the following as protected acts; her previous tribunal claim in 2018, her complaint against Richard Hailstone and the first of the claims in these proceedings.

[202]The claimant was unable to establish in evidence that any of the relevant witnesses knew about the alleged protected acts. They all denied they were aware in their witness statements and they were not challenged on that. The claimant did not put forward any evidence that the alleged detriments were linked in any way to the protected acts. I nevertheless considered all the alleged detriments.

[203]I have dealt with the alleged detriments (dismissal, the appeal, the alleged suspension) above. There were clear non-discriminatory reasons for the actions the respondent took. In respect of the claimant’s inability to go for another role or promotion, the respondent had a non-discriminatory reason which was the application of a policy that applied because the claimant was dismissed for gross misconduct. In respect of the alleged detriment by the Information Rights department, she was given the information requested once she gave the requisite consent.

[204]Being provided with the audio recording of the disciplinary hearing in an online format rather than a disc format was because it was too large to send in an online format (paragraph 103 above).

[205]The HR member telling the claimant it was the respondent’s policy to withhold information due to the case being live did not affect the outcome of the disciplinary and the claimant has not explained how being told that was the policy was a detriment (paragraph 98 above).

[206]Accordingly the complaints of victimisation do not succeed. Direct race discrimination

[207]The claimant identifies as Black Afro-Caribbean and her hypothetical comparator would be a white or non-black African-Caribbean person.

[208]Blaming the claimant for the victim's assault was not put to the respondent’s witnesses and the claimant did not expand her case on this issue. Although the letter of investigation refers to incorrect advice being given which later led to a sexual assault (paragraph 78 above) I find that making a link between the advice given and the assault was reasonable and not because of the claimant’s race.

[209]I have found that the claimant was not suspended. Accordingly, the allegation that putting her in the same seat from 23 November 2023 was direct race discrimination is not made out.

[210]The claimant said in evidence and subsequently accepted in submissions that Samantha Salmon was “not racist” but then asserted the policy of issuing informal management actions was racist. That appears to refer to a complaint of indirect discrimination which was not pursued in these proceedings.

[211]The claimant also accepted in evidence that Richard Hailstone was “not racist”. No evidence was put forward to support a complaint that his actions were because of race.

[212]Accordingly the complaints of direct race discrimination do not succeed. Harassment related to race

[213]There is no explanation from the claimant as to why the conduct she described concerning Julia Muir or Richard Hailstone was related race.

[214]The claimant was reasonably criticised by them for her conduct. In both cases I found they spoke to the claimant in a measured and discreet way which was unlikely to be overheard by the rest of the office. Their actions did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile environment and nor did not reasonably have the effect of it (paragraphs 105 to 110).

[215]Accordingly the complaints of harassment related to race do not succeed. Summary

[216]All of the claimant’s claims are dismissed. Approved by: Approved By