Ms S Smith v BerryWorld Ltd and others: 3311726/2021 and 3320876/2021
EMPLOYMENT TRIBUNALS
Case No 3311726/2021, 3320876/2021
Between
Ms S SmithClaimantBerryWorld Ltd and othersRespondent
Before
Employment Judge CowenIn person for claimantMr Price (instructed by counsel) for respondentDate 8 October 2024
JUDGMENT
[1]The following complaints of direct discrimination are well founded and succeed:a. Between 8 and 15 March 2021, arriving at a predetermined grievance decision,b. Between 8 and 15 March 2021, a discriminatory comment by email, the gist of which was – that she would use her disability to bring a court claim and [so] they had [to] get her to agree a settlement.[2]The following complaints of unfavourable treatment because of something arising in consequence of disability are well-founded and succeed:a. From 3 to 4 March 2021, putting pressure on the Claimant at meetings to leave her job, by telling her she had already lost her job, you can take redundancy and an additional package.b. Dismissal[3]The complaint of failure to make a reasonable adjustment by not providing a suitable chair for her working from home, succeeds.[4]The complaint of unfair dismissal succeeds.[5]The remaining complaints ofa. direct discrimination,b. unfavourable treatment because of something arising in consequence of disability,c. failure to make reasonable adjustments, andd. victimisation are not well-founded and are dismissed.[6]By agreement between the parties the Respondents must pay the Claimant the sum as set out in paragraph 1 of the Schedule annexed hereto.
REASONS
[1]The Claimant started to work for the Respondent as an App Support on 13 August 2018. On joining she notified the Respondent within a medical form that she had previously suffered from depression/anxiety but said that it was now well controlled. She did not specifically mention anorexia at this time.[2]The Claimant told Alicia Hamilton, Head of Department, in March 2019 when they held a meeting in the boardroom, that she had anorexia. The Claimant and Miss Hamilton formed a friendship and attended the gym together. They also had a WhatsApp group, giving each other friendly support out of work.[3]The Claimant was promoted to Junior Business Analyst on 1 June 2019. Her line manager was Jodi- Ann Davison. The Claimant complained to Miss Hamilton, that she did not receive enough support from Jodi- Ann to assist her. Miss Hamilton saw this as a difference in style as Jodi-Ann was laid back in her management and the Claimant wanted a closer supervision. Miss Hamilton allowed a period of time to see if they could adjust to each other, but this did not happen and Miss Hamilton arranged for Liz Robinson to become the Claimant’s line manager. This occurred on 1 April 2020.[4]In the meantime and in particular during January and February 2020 the Claimant required repeated support and assistance from Miss Hamilton, the Head of Department. This involved repeated meetings between them and led to Miss Hamilton working late to support the Claimant and the other people she managed, on an interim basis. The Claimant found it difficult to cope without the support of Miss Hamilton and this was why Miss Hamilton appointed Miss Robinson to manage the Claimant.[5]In early March 2020 the Covid pandemic hit the UK and on 23 March 2020 lockdown was imposed by the Government. No-one, except those in essential jobs were allowed to leave their homes to travel to work. This meant that the Respondent’s office staff were told to stay at home and the office was closed to all, except those who needed access in order to keep the company running, such as the IT people who dealt with hardware.[6]On 31 March 2020, the Claimant along with others in the company (and millions in the country) were placed on furlough- the Coronavirus Job Retention Scheme. Miss Robinson had indicated that the Claimant was working on projects which could be paused and therefore her work was not essential to the continued running of the company. The Claimant’s superior Miss Hamilton was also placed on furlough.[7]The effect of lockdown on the Claimant was profound – not being able to go out to work and having to work in less than ideal surroundings, led to a deterioration in the Claimant’s mental health and a relapse of her anorexia. The Claimant made it clear to Miss Robinson and Ms Rezk that she would rather be working in the office, or elsewhere than her house. It was clear to Ms Rezk that the Claimant needed to be kept busy in order to maintain her mental health. She therefore recommended online training courses to the Claimant, who was on furlough and therefore could not legally undertake work for the company. She also suggested to the Claimant that she work from a coffee shop or library, if she wanted to get out of the house. Whilst these might not have been useable solutions, Ms Rezk did try to support the Claimant with suggestions. The Claimant thought these to be derogatory comments. On 14 May 2020 the Claimant was removed from furlough and allowed to work from home. She was the first person to be returned to work.[8]Her work environment was not ideal as the Claimant lived at home with her parents in what she described as a small house, which meant that she had very limited space to work. She worked from her bedroom and did not have an appropriate desk or chair. Like many during lockdown, she had to make do with what she had and purchased a stool to use as a work chair. This was uncomfortable for the Claimant and in particular when she became underweight and found sitting to be uncomfortable. When the Claimant raised the issue of not having a suitable chair, the Respondent immediately offered that she could take her chair from the office to her home. Unfortunately this was not suitable for the Claimant due to the restricted space.[9]On 30 June 2020 during a friendly conversation between Miss Hamilton and the Claimant, Miss Hamilton reflected that she was worried she would put on weight as she had injured her leg and could not exercise. She said to the Claimant ‘ at least you can control your calories’. This was a thoughtless comment by Miss Hamilton. The Claimant was upset by it, but said nothing initially.[10]On 1 July – the Claimant contacted Ms Rezk to report this conversation to her, on the basis that she was upset by what Miss Hamilton had said. Ms Rezk told the Claimant not to worry about it as it was just a flippant remark by Miss Hamilton and that no formal action would be taken. Ms Rezk therefore was aware of the Claimant’s anorexia, in order to understand this upset.[11]On that basis, the same day the Claimant messaged Miss Hamilton and told her that although she appreciated that Miss Hamilton would not wish to distress her intentionally, she had been upset by the comment Miss Hamilton made. Miss Hamilton apologised immediately, saying that she realised she had said something inappropriate but decided that apologising would draw attention to it more, so she let it go.[12]At the beginning of October 2020 the Respondent sent out a risk assessment checklist to all staff asking them for details about their workstation at home. This was to assess whether any new equipment was required and also to ask whether staff wanted to return to working in the office, if this could be accommodated within the rules at the time.[13]The Claimant responded to say that she had a limited amount of space, that her chair was not suitable, that she was in pain and that it was having an impact on her mental health.[14]The Claimant’s answers gave rise to a conversation with Ms Rezk on 13 October in which Ms Rezk suggested that the Claimant could take some time off. They discussed different ways that might happen. She also said she would look into whether it was possible to return the Claimant to the office.[15]The Claimant went to see her GP after this and was signed off work from 20 October for 2 months in total.[16]She also took holiday in December meaning that she did little work before the new year.[17]Action in relation to a chair was taken when the Claimant returned to work in January 2021. At this point, the Respondent invited her to choose a chair which would fit in her room. This was purchased and sent to the Claimant.[18]Throughout January and February 2021 the Claimant continued to work and continued to rely upon the support of Miss Robinson and Miss Hamilton in particular. Miss Hamilton was sending the Claimant worklists of tasks to carry out, where possible. Although the nature of some of the work is reactive and therefore could not be planned in advance. Miss Hamilton was responding to Whatsapp messages and guiding the Claimant through work tasks when the Claimant asked. Miss Hamilton suggested that regular training was initiated for the Claimant and Miss Robinson would put this in place.[19]Both Miss Robinson and Ms Rezk were aware that the Claimant was struggling once again and that both the Claimant’s mental health and environment were a problem. Ms Rezk referred to the fact it was difficult to keep the Claimant’s motivation and mood up.[20]On 3 March 2021 Ms Rezk and Miss Robinson held a meeting with the Claimant online by Teams. The meeting was described as a Role Review to “ discuss your role in Berry World, the current status of the IT department and Berry World Group,”. The Claimant was told that someone from HR would also be attending.[21]At the meeting Ms Rezk told the Claimant that she was being offered a settlement agreement to bring her employment to an end. She was offered £5,000. She was also told that there was going to be a redundancy process and that Miss Robinson and Miss Hamilton had scored her lowest in her department and therefore in order to avoid a process which could be stressful, she was being offered a settlement above the statutory pay level. The Claimant felt this was huge pressure as the issue of redundancy had not been discussed with her at all.[22]When the Claimant asked for the content of the meeting to be put in writing, Ms Rezk refused to do so, but offered a further meeting the following day, on 4 March. The Claimant asked for her father to accompany her. This was allowed, although Ms Rezk told Miss Robinson that having him present “does make it a bit trickier”.[23]This meeting also consisted of further pressure by Ms Rezk for the Claimant to accept the offer of settlement. When the Claimant asked if the other junior Business Analyst had been spoken to for a Role Review, the Claimant was told that she had already been selected. The Claimant made it clear in the meeting that she did not want to give up her job and that she would rather go through the redundancy process.[24]A copy of the proposed settlement agreement was nevertheless sent to the Claimant by email on 5 March 2021. It refers to the termination of the Claimant’s employment on 12 March 2021. It was therefore clear to the Claimant that she had to decide before that date.[25]The Claimant attended a work meeting on 8 March. She discovered that she had been locked out of the IT system. Miss Hamilton and Ms Rezk were surprised that the Claimant attended the staff meeting that day and the Claimant was immediately reinstated on the IT system.[26]On 8 March the Claimant lodged a grievance about the meeting on 3 March and various other points including what the Claimant saw as a lack of support for her in her work, being placed on furlough, and the handling of her working from home.[27]The next day, Jules Wade, Head of HR at Fairfax Meadow, part of a group of companies with Respondent, was appointed along with Mark Longden to hear the grievance. Ms Wade sent Mr Longdon an email on 9 March which clearly indicated that Ms Wade had spoken to Ms Rezk (who was one of the subjects of the grievance) before she had spoken to the Claimant. Ms Wade told Mr Langdon in the email, of the settlement offer. It also told him of the scoring of a matrix which had not in fact been created or scored. Ms Wage made a comment about the Claimant’s father being involved and having asked for a higher settlement. She said “Hence the Grievance”. She then indicated to Mr Langdon that “I would imagine that unless we can convince her that a settlement is the better option she will exhaust the Grievance procedure to then claim unfair dismissal and discrimination due to her mental health (she has anorexia) and found working at home extremely difficult”.[28]Ms Wade then went on to interview a number of people, including the Claimant and to hold a grievance meeting with the Claimant on 15 March 2021. The outcome of the grievance was given on 23 March 2021, it provided 4 recommendations; - that an escalation process should be put in place. - That the Claimant is given a work pattern for 4 weeks - that the Claimant meets her line manager once a week to discuss any problems with work content - that the Respondent instigate a redundancy process as soon as possible.[29]The Claimant appealed against the outcome by a letter dated 30 March 2021. By this time an escalation process had been put in place by Miss Robinson. She had also put in place a weekly meeting on a Wednesday. In any event the Claimant maintained her WhatsApp communication with Miss Hamilton and her almost daily conversations with Miss Robinson.[30]Miss Hamilton also provided a fortnightly meeting with the Claimant to discuss the next Sprint (work pattern).[31]The Claimant’s grievance appeal was handled by Kathryn Allen, Head of HR at Poupart Ltd another company in the Group. They held a meeting and an outcome letter was sent to the Claimant on 19 April.[32]Following on from this, the redundancy process was reinvigorated. This was explained to the Claimant on 9 June after she complained that she had been “left in limbo”.[33]On 10 June 2021 Ms Rezk offered the Claimant the use of a sleep coach as the Claimant had mentioned that her sleep was affected by her stress and anxiety. This was arranged on 16 June, although the Claimant did not accept all the sessions which were on offer.[34]The Respondent started a formal redundancy process in late June 2021. The Claimant was invited to a meeting as part of the redundancy process. There was a first consultation meeting held on 29 June. The Claimant said that she had asked Miss Robinson to be her work colleague in this meeting but that Miss Robinson had declined to do so. There was no discussion of the Claimant being accompanied by anyone else from outside the organisation.[35]On 29 June the Claimant was told that there would be a 30 day consultation period. She was also told that the Respondent’s intention now was to have a pool of 2 people and that one would be chosen for redundancy. The Claimant objected to this, saying that all the Business Analysts should be placed in the pool, but the Respondent did not do so.[36]Two further consultation meetings were held with the Claimant, at which she was given the opportunity to outline the points she contested about the selection. Although no actual scoring was shown to her.[37]On 29 July there was a final meeting at which Ms Rezk told the Claimant that no scoring had been carried out and that the Claimant was being made redundant. Ms Rezk also said she would be explaining this to Tom Leigh also. This was a reference to the fact that Tom Leigh was another Business Analyst who was also being made redundant. Something which the Respondent did not make clear and had not been in the proposal during the process.[38]The Claimant was told that her employment would end on 31 July 2021 and she was not expected to work her notice. She was also informed that she would be removed from the IT system immediately, as all leavers were. She was asked if there was anything she needed to retrieve from the system but was not able at that time to specify. When she later did, she was allowed supervised access to the system to retrieve her personal data.[39]The Claimant’s father accompanied her on the call and when it ended abruptly due to the Claimant’s emotional state, Ms Rezk ensured that a second call was made to complete the call. During that initial call the Claimant ended it when she said “I’ll see you in court”.[40]The Claimant appealed her redundancy. This was dealt with by Clare Warby and Andy Machell. A hearing was held on 17 August where Ms Warby listened to all that the Claimant had to say. The Claimant was satisfied that Ms Warby was polite and listened. Although the outcome letter on 23 August upheld the dismissal. The Law Direct Discrimination
The Law
[41]Section 13 of the Equality Act provides that: “(1) 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.“[42]Section 23 of the Equality Act goes on to provide that: “(1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”[43]In the House of Lords decision of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, ICR 337, it was held by Lord Scott that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class”.[44]The test as to whether there has been less favourable treatment is an objective one: the claimant’s belief that there has been less favourable treatment is insufficient. Likewise, the treatment must be less favourable, not merely different. Unreasonable treatment is not sufficient, although it may be evidence which supports an inference if there is no adequate explanation for the behaviour (Anya v University of Oxford and anor 2001 ICR 847, CA).[45]Where there is less favourable treatment, the key question to be answered is why the claimant received less favourable treatment: was it on grounds of race or for some other reason (London Borough of Islington v Ladele [2009] ICR 387). As Mr Justice Linden said in Gould v St John’s Downshire Hill 2021 ICR 1, EAT “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective…For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision…[and] the influence of the protected characteristic may be conscious or subconscious.” Discrimination Arising from a Disability[46]Section.15(1) of the Equality Act 2010 provides that; “ (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) B cannot show that the treatment is a proportionate means of achieving a legitimate aim”.[47]The burden is on the Claimant to show that she has been treated ‘unfavourably’ by being put at some disadvantage.(Williams v Trustees of Swansea University 2019 ICR 230). The Claimant does not need to compare herself to anyone else.[48]To find the ‘something arising’ the Claimant must show that the discriminatory treatment is a result of some consequence of the disability and not the disability itself.[49]The Tribunal will consider the conscious and unconscious thought processes of the discriminator. The something arising need not be the main or sole reason for the treatment, but must be significant in its influence.[50]A legitimate aim by an employer will be a real, objective consideration. A business need, or economic efficiency may be sufficient. When considering the proportionality, the Tribunal will consider whether there were less discriminatory measures which could have been taken to achieve the same objective. Failure to make a reasonable adjustment[51]Section 20(3) of the Equality Act 2010 provides that: “(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.”[52]Section 21 of the Equality Act 2010 provides that: “(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”[53]The burden is on the claimant to show the application of a provision, criterion or practice, and the substantial disadvantage suffered by him because of it. Substantial means “more than minor or trivial”. If that is done the burden shifts to the respondent to show that the adjustment in question was not reasonable. A one-off act can amount to a PCP where there is an indication that it would be repeated if a similar situation arose in future (Ishola v Transport for London [2020] EWCA Civ 112, CA).[54]The duty to make reasonable adjustments does potentially require an employer to treat a disabled person more favourably than others (Archibald v Fife Council [2004] ICR 954[55]Paragraph 6.28 of the EHRC Code sets out some of the factors that might be taken into account when deciding what is a reasonable step: it is wise for the Tribunal to consider the factors although there is no duty to consider each and every one (Secretary of State for Work & Pensions (Job Centre Plus) v Higgins [2014] ICR 341, EAT [58]). What is reasonable is considered objectively having regard to all the circumstances. The steps are: a) Whether taking any particular steps would be effective in preventing the substantial disadvantage; b) The practicability of the step; c) The financial and other costs of making the adjustment and the extent of any disruption caused; d) The extent of the employer’s financial or other resources; e) The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and f) The type and size of the employer.[56]The test of reasonableness is objective and will depend on the circumstances of the case.[57]The duty to make reasonable adjustments will only arise if the disabled person is put at a substantial disadvantage. The purpose of the identification of a provision, criterion or practice is to identify the matter that causes the disadvantage (General Dynamics Information Technology Ltd v Carranza 2015 ICR 169, EAT) and this disadvantage must not equally arise in the case of someone without the claimant’s disability (Newcastle upon Tyne Hospitals NHS Trust v Bagley UKEAT/0417/11). It is for the claimant to show substantial disadvantage (Bethnal Green & Shoreditch Educational Trust v Dippenaar UKEAT/0064/15, and Hilaire v Luton BC [2023] IRLR 122). However, it is not necessary for the claimant to show that the disadvantage arises because of his disability, provided they have shown substantial disadvantage in comparison with persons without the disability (Sheikholeslami v University of Edinburgh UKEATS/0014/17).[58]The test of reasonableness is an objective one (Smith v Churchills Stairlifts plc 2006 ICR 524). The Tribunal should look at the proposed adjustment from the point of view of both claimant and employer to make an objective determination of whether or not it would be a reasonable adjustment (Birmingham City Council v Lawrence EAT 0182/16). The Tribunal should also consider the business needs of the employer (Griffiths v Secretary of State for Work & Pensions [2017] ICR 160, per Elias LJ, and O’Hanlon v Commissioners for Inland Revenue [2007] ICR 1359).[59]A key question when assessing reasonableness is whether or not the proposed adjustment would be effective in preventing the substantial disadvantage. There does not have to be a good or real prospect of the disadvantage being removed, it is sufficient if there would have been a prospect of the disadvantage being alleviated (Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10).[60]The duty to make reasonable adjustments will only arise if the respondent not only knows, or ought reasonably to have known, of the disability but also that the individual is likely to be placed at the substantial disadvantage. Victimisation[61]Section 27 of the Equality Act 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, or b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act: a) Bringing proceedings under this Act; b) Giving evidence or information in connection with proceedings under this Act; c) Doing any other thing for the purposes of or in connection with this Act; and d) Making an allegation (whether or not express) that A or another person has contravened this Act.”[62]The detriment will not be due to a protected act if the person who put the individual to the detriment did not know about the protected act (Essex County Council v Jarrett EAT 0045/15, and Deer v Walford and anor EAT 0283/10 where awareness of “some sort of legal case” was insufficient to establish knowledge).[63]For victimisation to occur, the detriment must be because of the protected act. It does not need to be solely because of the protected act to amount to victimisation, but it does need to have a significant influence (Nagarajan v London Regional Transport 1999 ICR 877, HL). This means an influence which is “more than trivial” (Igen Ltd v Wong,).[64]We note that the Respondent did not produce some of their witnesses to give evidence. Particularly Ms Rezk who conducted the 3 March meeting and Miss Hamilton who decided the redundancy. This places the Tribunal in a difficult position of having to consider their witness statements without the benefit of any further explanation or indeed any challenge by the Claimant. We have therefore considered whether there is any corroborating documentary evidence which would help to support their evidence. Disability[65]The Claimant was disabled by way of her anorexia and depression and anxiety throughout her employment. Placing the Claimant on Furlough[66]The Claimant was informed at a meeting on 30 March 2020 that she would be furloughed within the Coronavirus Job Retention Scheme for 6 weeks initially. This was confirmed in a letter dated 31 March 2020. The Claimant was not at all happy about this situation and would have preferred to have worked, but she signed the letter on 31 March and returned it to her employer.[67]The reason the Claimant was placed on furlough was because the UK was in lockdown. It was not known what impact this would have on the business and the Respondent wished to protect the wellbeing of employees (from Covid virus) as well as protecting the company. By placing the Claimant on furlough the company were able to access Government funds to pay the Claimant 80% of her salary.[68]The evidence suggested that the reason the Claimant was chosen for furlough where others were not, was due to the nature of the project work she was carrying out, which was not deemed to be essential work. The Claimant sought to compare herself to Jordan Shepherd and Tom Leigh, however the Tribunal considered there was a material difference between the Claimant and them, as they were not doing the same job and not working on the same workload as the Claimant. The Claimant’s role as a Business Analyst did not require her to answer the helpdesk phoneline and therefore she was not required to undertake ongoing work at that time.[69]There was no evidence to suggest, or from which the Tribunal could infer, that the reason for the decision to furlough the Claimant was her disability. The Tribunal were satisfied that the Claimant was not treated less favourably than anyone else was, or would have been. She would have been furloughed in any event, even if she had not been disabled. The Tribunal reminded itself of the Covid timeline and that this was an unprecedented time when people were dying and there was little known about how to prevent the spread of the disease. Lockdown was in force by the Government not only by the Respondent.[70]The Tribunal concluded that disability was not the reason for the furlough and this allegation was dismissed[71]The Claimant admitted in questions that she could not say that her furlough was due to something arising from her disability. This allegation was therefore dismissed. 30 June Miss Hamilton made a comment of – “at least you can control your calories”[72]Miss Hamilton and the Claimant had been friends and went to the gym together. They had therefore engaged in conversations of a more personal nature. During the pandemic when gyms were closed Miss Hamilton had started running, when she became injured and couldn’t run, she had a conversation with the Claimant about the fact that she was unable to exercise. The Claimant had told her it was ok to take a break, to which Miss Hamilton replied that, she was concerned she ate too much whilst not exercising and said “at least you can control your calories”. This was a flippant comment made by Miss Hamilton to reflect her own frustration and concern about her weight. The Tribunal noted that the Claimant said that she was upset by this comment and that it triggered a negative feeling for her, but also noted that the Claimant said that she knew that by regularly discussing food and exercise with Miss Hamilton she was opening herself up to something being said which she found upsetting.[73]The Tribunal accepted that this was a comment made between 2 colleagues who were friends and was not targeted at the Claimant due to her anorexia. The Tribunal believed that Miss Hamilton would have made the same comment to a health conscious friend who watched her weight, but who was not anorexic. This was not therefore a direct discrimination. This allegation was dismissed. Discrimination Arising from Disability (S.15)[74]The Tribunal accepted that the Claimant struggled to gain weight as a result of her anorexia and that this was something arising from her disability. The comment that Miss Hamilton made, was with the knowledge of the Claimant’s anorexia, which they had discussed previously and was a reference to it. It was therefore because of the Claimant’s disability. Miss Hamilton said she knew immediately that it was the wrong thing to say, but decided not to apologise in the hope that it may have passed the Claimant by. The Tribunal noted that the comment was made during a Teams call (i.e work time) and that Miss Hamilton was Head of Business Analysts at the time and therefore superior to the Claimant in the Respondent’s business.[75]The Tribunal also noted that the Claimant was so upset that she informed Ms Rezk of the comment, but received a response which indicated that no action would be taken. To be clear, Ms Rezk on behalf of the Respondent therefore knew at this time that the Claimant had anorexia, otherwise she would not have understood the complaint the Claimant was making. The Claimant subsequently challenged Miss Hamilton herself, about the comment. Sending her a message indicating her upset. The Tribunal concluded that this evidence showed that there was unfavourable treatment of the Claimant by Miss Hamilton and that it was done in a work capacity due to the circumstances. There being no justification for this comment, the Tribunal found it was discriminatory.[76]The Tribunal concluded that it was carried out in a work capacity – that Miss Hamilton was supporting the Claimant as a senior. The Tribunal found that the First Respondent has liability for this allegation. Time Limit[77]However, in relation to the time limit to be applied to this point; The Tribunal concluded that this act was a one off event by Miss Hamilton, which the Tribunal considered to be inadvertent on her part, rather than malicious. Miss Hamilton was involved in the later redundancy conversations and decisions, but this was not because there was any continuing malice on the part of Miss Hamilton. This comment did not contribute to the dismissal decision.[78]The claim ought to have been brought by 29 September 2020 (ACAS started 28 April 21 and ET1 was issued 20 June 21), so the claim was almost 9 months out of time. The Tribunal considered whether it would be just and equitable to extend time to allow the claim to proceed. The Tribunal noted that around mid- October 2020, was when the Claimant went off sick and her mental health had been worsening over a long period. She was however, recovered and well enough to put in a grievance on 8 March 2021, upon her return to work. The Tribunal considered that the Claimant ought to have brought the claim by 8 March 2021 and that she did not do so. The Tribunal concluded that it was not just and equitable to extend time beyond 8 March 2021 and therefore the claim was out of time and the Tribunal had no jurisdiction to hear this allegation. 3 & 4 March 21 – putting pressure on Claimant to leave job[79]The meeting on 3 March took place online, via Teams. The Claimant was told it was a Role Review and therefore was not expecting to discuss her exit from the business. Pressure was placed on the Claimant by Ms Rezk who offered her £5,000 to leave, or her statutory redundancy pay. This came as a shock to the Claimant, who became very emotional. She did not have anyone in the meeting to support her. Ms Rezk told the Claimant that there was going to be a redundancy process and she was at risk of losing her job as she would be the lowest scoring person in the pool.[80]Miss Robinson had not been asked to carry out any redundancy scoring or consideration at this point and therefore it was untruthful to tell the Claimant that her line manager had the view that she would be chosen for redundancy.[81]On 4 March, there was a further meeting which the Claimant’s father also attended. He indicated his belief that the Respondent was discriminating against the Claimant due to her disability. Ms Rezk was also insistent in this meeting that the Claimant had to decide whether to take the additional money or go through a redundancy process which she would lose. Ms Rezk also referred to the fact that it was likely that the Claimant would score the lowest by one point.[82]The Tribunal found that the meeting was detrimental to the Claimant who was very upset by it and felt pressure from Ms Rezk to accept a settlement and end her employment. There was no evidence of scoring having taken place at that time.[83]There was also no evidence of such a meeting with other staff at this time, in particular Tom Leigh. Therefore, the Tribunal did not accept the evidence of Ms Rezk that she spoke to everyone in the pool. The Respondent’s plan at that time was to retain Tom Leigh and train him to carry out a wider role, which explains why he was treated differently. The difference in treatment was therefore not due to the Claimant’s disability.[84]All parties and the Tribunal accepted that there was knowledge of disability at that time.[85]The evidence showed the Claimant needed a higher level of support than others in the run up to this meeting. The Claimant was struggling to carry out her work duties at this time due to her worsening mental health position. Miss Hamilton and Miss Robinson perceived that the Claimant had become increasingly reliant on them and others to help her to do her work. This was as a result of her anorexia/depression/anxiety. The Tribunal were satisfied that the Claimant’s struggle to carry out her work was due to her disability and that this led to her unfavourable treatment – in that the meetings upset her.[86]The Tribunal took into account that Miss Hamilton and Ms Rezk perceived that the Claimant was problematic and believed that the Claimant would therefore be low scoring in a redundancy. The Respondent wanted to end the relationship as the Claimant was not working independently and was taking up management time. They had tried to support the Claimant through the pandemic but did not feel they could continue to do so. This was an attempt by Ms Rezk and the First Respondent to avoid a redundancy process.[87]The Tribunal also considered that if the Respondent was genuinely considering a business reorganisation at this time, they would have carried out a scoring exercise and shown it to her and also shown her the recruitment process for the more senior role. The Respondent knew the Clamant to be very vulnerable and to fail to follow a redundancy process at this time placed her under a greater strain. To lie to the Claimant and say that her line manager said she would come out lowest was not true and placed the Claimant under pressure as a result of her struggling to carry out her work duties. The Claimant therefore succeeded in this allegation and the Tribunal found there was discrimination. Removing access to the IT system[88]The Claimant was an IT professional with knowledge of the system. As a result of the meeting on 3 March the Respondent intended to give the Claimant time off to consider her position. It was reasonable that the Respondent thought it possible that the Claimant would accept the settlement and bring her employment to an end. The Claimant had been very upset at meeting and the Respondent was concerned that she would do something inappropriate on the IT system. Access was therefore restricted due to the Respondent’s concern that the Claimant could cause damage to IT data.[89]The Claimant’s access was reinstated on 8 March as soon as she returned to work. Showing that as soon as the Claimant returned to work, the Respondent considered the risk was gone.[90]There was no evidence to suggest that the decision to remove the Claimant’s IT access was connected to her disability. The Tribunal had no basis on which to infer that there was any connection. This was due to her position within the IT department. The Tribunal concluded that this did not amount to less favourable treatment due to disability.[91]The Tribunal did not consider that the allegation of ‘being seen as a risk to the system because of mental illness’ is something arising from disability ( as set out at para 5.2.4 of List of Issues). The Claimant was not habitually seen as a risk to the system. She only became so in the eyes of the Respondent when a dispute arose between her and the Respondent. Therefore, the reason she was seen as a risk to the system was due to the dispute and not due to her disability.[92]The Tribunal noted that something arising from a disability cannot be someone else’s perception of the Claimant. It must be a consequence of the disability itself, e.g having time off, unable to climb stairs.[93]The Tribunal therefore concluded that there was no unfavourable treatment due to something arising. This allegation was dismissed. (4.1.5 & 4.1.6) Pre-determined grievance decision (between 8th-15th March)[94]Ms Wade and Mr Langdon worked for Fairfax Meadow – the Respondent therefore considered them to be independent of the Claimant and others with whom the grievance was concerned. Unfortunately, Ms Wade spoke to Ms Rezk, who was the subject of the grievance, in detail, prior to speaking to the Claimant. This was unusual and not best practice and Ms Wade did not explain why she had done this. More importantly, Ms Wade then sent Mr Langdon an email which set out the fact that the Claimant had been offered a settlement which she had not accepted and then suggested to Mr Langdon that unless they could persuade her to take the settlement, the Claimant would exhaust the grievance process and then bring a tribunal claim for unfair dismissal and discrimination. This email betrays a line of thinking that was not part of Mrs Wades’ role. It also indicated a preconceived idea of the process and tainted Mr Langdon with her thoughts. The Tribunal found Ms Wade to be a witness who failed to show professional acumen.[95]The Tribunal were satisfied that this email and the discussion with Ms Rezk indicated a predetermination of the Claimant and Respondent’s position and therefore undermined Ms Wade’s independence or that of the process which she then followed.[96]Ms Wade in her email correspondence showed that she made the link between the Claimant’s actions and her disability. She indicated no plan to run a fair process or to remain independent.[97]The Tribunal concluded that both these allegations were due to disability and would not have occurred had the Claimant not been disabled. This allegation succeeded.[98]This was pleaded in the alternative as a s.15 discrimination. On the basis that the Tribunal concluded that this amounted to direct discrimination (s.13), the Tribunal cannot consider it also to be s.15 discrimination. 4.1.5 Training[99]The allegation of a failure to provide training in January 2020 - in her evidence to the Tribunal, the Claimant said she didn’t know that the training was being requested by Jodi-Ann, her line manager at the time. The Tribunal saw evidence that Jodi-Ann requested it from Melissa Yanetski (HR). The request was for any confidence or Stake holder and project management training. The Tribunal was satisfied that the Claimant never received and was not offered any such training, although Jodi- Ann did attempt to find some useful training for the Claimant. The Tribunal were satisfied that this did amount to a detriment to the Claimant. However, it considered whether this treatment was less favourable treatment to the treatment anyone else received. The Tribunal concluded that the Claimant was not treated differently to anyone else in the same situation. In particular the Tribunal noted that Jordan was trained because he moved to a different job. He was therefore in a materially different position to the Claimant, as he was being trained to take on a different role. The training the Claimant was looking for, was to allow her to do her current role. The Tribunal found that there was no evidence of direct discrimination as there was no less favourable treatment.[100]The second instance of a lack of training was alleged to have occurred in January/February 2021. The Tribunal found that the Claimant did ask for training. There was no evidence that the Respondent took any steps about this request. In particular, no offer was made. The Tribunal considered whether this amounted to treatment which was less favourable than the manner in which others were treated. The Tribunal could find no evidence to suggest the Clamant was treated differently (and less favourably) to anyone else[101]The Tribunal also considered whether the failure was linked to her disability, but were unable to find any evidence to suggest that the Claimant was treated differently from any other staff. This allegation is dismissed.[102]The Tribunal concluded that the lack of offer of other training was not due to any of the things arising from disability. The Claimant did not specify which of her list of matters arising was related to this allegation and she did not outline it in her closing submission.[103]The Tribunal were satisfied that as some training was at least discussed by managers, the Claimant’s allegation could not be upheld. There are two allegations which are brought as s.15 but not as direct discrimination; 5.1.8 – Switch off IT at time of redundancy 28 July 2021[104]The evidence showed that it was common practice for the Respondent to switch off the IT access of any leaver, particularly where they are being asked to remain at home until such time as their employment terminates. The Claimant had threatened to ‘see you in court’ after she was terminated, and therefore the Respondent had reason to think that the Claimant might try to enter the system to obtain, or possibly even sabotage information. The Tribunal did not see any evidence to suggest that this was connected to anything arising from disability. In any event the Tribunal noted that the Respondent let her return to have limited access to retrieve personal matters. 5.1.9 Dismissal[105]The parties agree that the Claimant was struggling to do her work duties and required extra support. The Respondent had made it clear from 3 March that the Claimant was considered to be the weakest member of the department. The evidence showed the Claimant contacting Miss Robinson and Miss Hamilton repeatedly to ask about work tasks. There was also discussion between them about the fact that the Claimant kept requiring input from them about things she ought to have known. Both Miss Hamilton and Miss Robinson saw the Claimant as needing a lot of support and using their working time. It was this which led Miss Hamilton to conclude, in conversation with Ms Rezk that the Claimant was to be exited. The Claimant was aware from 3 March that the Respondent no longer wanted to employ her.[106]The Tribunal found that the reason the Claimant was dismissed was because she was struggling to carry out her work duties by working from home and that whilst those at the Respondent had tried to support the Claimant in many ways, the Respondent no longer wanted to support her going forward.[107]The Tribunal concluded that the Claimant’s dismissal was directly related to the fact that she was struggling to do her work as a result of her disability. This was therefore a discriminatory dismissal. Reasonable Adjustments[108]The Tribunal considered whether the Respondent applied a Provision, Criterion, Practice (‘PCP’) which placed the Claimant at a disadvantage and which could have been alleviated by a reasonable adjustment. PCP[109]The PCP which parties agreed at the preliminary hearing, was the ‘requirement to do the work’. The Tribunal therefore applied this PCP to each of the following reasonable adjustment claims:-[110]The Claimant did not identify the disadvantage in relation to each adjustment she claimed. It was therefore left to the Respondent to make submissions on this point – Mr Price suggested a reverse engineering. The Tribunal did not accept that this can be done in relation to the PCP, that has been articulated by the Claimant and it remains as it was set out in the preliminary hearing. It is not for either the Respondent, nor the Tribunal at the final hearing to attempt to change the Claimant’s case, nor to try to interpret it for her, either to her benefit, or her detriment. The list of issues was considered at the start of the hearing and both parties agreed that it covered all aspects of the claim.[111]The Tribunal did accept that to some extent the disadvantage could be inferred from the adjustment the Claimant asserted needed to be made in order to allow her to carry out her work. 1 Providing a suitable chair to work from home[112]The Tribunal identified the disadvantage as being that the Claimant did not have a suitable chair at home and that she found it uncomfortable to work from home. Not having a suitable chair would put the Claimant at a disadvantage in comparison to those without a disability, as they would not suffer from pain in the same way as the Claimant. The Claimant told Miss Robinson that she was uncomfortable working from home, on a number of occasions. The Claimant was severely underweight and it caused her pain to sit for long periods. This was not picked up by Miss Robinson.[113]The Claimant was off sick in October/November, and used holiday in December 2020. In January 2021, when she returned to work, she received a chair, when she raised the issue again.[114]The Claimant had first raised this issue around May 2020, when she returned from furlough. By the time she went on sick leave in October, she had been complaining regularly to Miss Robinson about being in pain due to not having a suitable office chair and had filled an assessment requesting one.[115]The Tribunal concluded that the Respondent could have provided a suitable chair (as they did in January 2021) at an earlier date, as they were aware via Miss Robinson that the Claimant required this. The Tribunal found that this was a failure to make a reasonable adjust between June 2020 and January 2021. 2 Put in place escalation process, to tell her who to speak to.[116]The Claimant was given support by a number of people within her department by way of an informal process. When the Claimant asked for it to be formalised in March 2021, the Respondent had already taken the decision to exit her from the business, either by redundancy or by settlement. It was only when the Claimant’s grievance was upheld on 23 March and it was recommended that a practice be put in place that action was taken promptly, by 30 March 2021. The Claimant said that she needed an escalation process due to her depression/anxiety. This was essentially another form of reassurance and support for the Claimant and would help her to perform more effectively.[117]The Tribunal concluded that this would have helped the Claimant, but that the Respondent did provide this, albeit more slowly than the Claimant would have liked. But it was within 1 week of the outcome of the grievance. It was put In place within 4 weeks of her request. The Tribunal therefore concluded that there was no failure to alleviate the disadvantage. The allegation was dismissed. 3 Training[118]The evidence showed that the January 2020 confidence training was requested, albeit the Claimant did not know about it. The Respondent asserted that it was cancelled due to Covid. The Tribunal therefore found there was no failure to provide the training, as training was delayed due to Covid 19 lockdown.[119]In January/February 2021 the evidence showed that the Claimant did request training. The Tribunal were not shown any evidence to suggest that the Respondent did anything about it. There was no evidence that any offer of training was made.[120]The Tribunal considered whether this training would have alleviated the disadvantage, but found there was no evidence to suggest that it would. Conversely, there was no evidence to suggest that the Claimant was not performing satisfactorily without it. The purposes of the training was due to the Claimant’s lack of confidence, not due to her lack of capability. The Tribunal concluded that this would not have been a reasonable adjustment. This allegation therefore failed and was dismissed. 4 Allowing C to bring someone of her choice to grievance meeting105. The Tribunal considered that the Claimant being allowed to bring a person of her choice to a meeting would not alleviate the disadvantage of not being able to do her job. This is not a reasonable adjustment. This allegation failed and was dismissed. 5 Providing an office space106. The Tribunal considered whether providing an office space for the Claimant would have helped her to be able to do her job. It noted what the Respondent said in their closing submissions.107. The Respondent provided the Claimant with an office space to work in until the Covid-19 pandemic caused Government Regulations to be enacted. Those Regulations created new statutory offences relating to business closures, with a national lockdown occurring on 23 March 2020. Once those Regulations were relaxed in June 2020, there remained guidance for businesses to follow relating to its employees working from home where possible. Local and national lockdowns then occurred in the second-half of 2020. A third national lockdown started on 6 January 2021 and nonessential businesses did not re-open until 12 April 2021. These circumstances caused businesses to have to adapt rapidly and with limited notice and those that could operate other than in a physical office/workplace, did so.108. The Tribunal noted that these allegations occurred during an unprecedented pandemic, in which Government regulations said that people were to work from home ‘where possible’, i.e. unless essential. The Respondent did look into opening the office – they took a survey of their staff, but found not many wanted to return. The Tribunal also note that returning to the office involved compliance with regulations, H&S issues and social distancing etc rules and so was not merely a case of allowing the Claimant to go in to the office. The Tribunal concluded that the Respondent looked at it and took the decision that it was not reasonable. The Tribunal accepted that it was not reasonable to do so at the time. This was a very difficult time and there were strict guidelines which the Respondent had to follow and they did. Essentially the Tribunal considered that the Respondent’s hands were tied. The Tribunal therefore found that it was not reasonable to make this adjustment and the allegation was dismissed. 6 allowing the Claimant to work 1-2 days in office109. For the same reasons as outlined in the previous allegation, this allegation is also dismissed 7 providing the Claimant with a list of work in advance110. The evidence showed that Miss Hamilton did this as much as possible from May 2020 onwards. The work was sent out and a back up of extra work was also provided where possible. The Tribunal accepted what Miss Hamilton said about some tasks not being known in advance due to the nature of the work. The Tribunal also noted that preparing a list for the Claimant was time consuming for Miss Hamilton who was having to work late to complete this task and her own work. The Tribunal therefore concluded that this adjustment was made to a reasonable extent. This allegation therefore failed and was dismissed. 8 Claimant meeting line manager and HR once per week111. The evidence showed that the Respondent knew that the Claimant required greater support than other non- disabled employees. However, Miss Robinson met with the Claimant regularly and had daily contact with her. Miss Hamilton had a close working relationship with the Claimant, having a WhatsApp group with her for direct contact.112. The Tribunal noted that it was the Claimant’s evidence that there was no occasion where she was ignored by HR when she approached them.113. The Tribunal also considered whether a regular meeting would have helped the Claimant to complete her work and concluded that it would not necessarily have alleviated the disadvantage. Access to her managers as and when required would do so and that was available. What was done was therefore sufficient to alleviate the disadvantage.114. There was no failure to make a reasonable adjustment as it would not have alleviated the disadvantage and what was done was reasonable. 9 Providing Sleep therapy by 21 April 21115. The Tribunal did not see any evidence of when this was requested or when the Respondent engaged a sleep coach, therefore the Tribunal found that there is no evidence which pointed to it being available at an earlier date. However, the Tribunal also considered whether there was any evidence to suggest that sleep therapy would alleviate the disadvantage of the Claimant not being able to do her job. The Tribunal were not shown any such evidence and therefore cannot say that this was an adjustment which would have assisted the Claimant in that respect. In any event, the Tribunal noted that the Respondent did in fact ultimately offer this, which the Tribunal considered to be generous of an employer. This allegation therefore failed and was dismissed. 10 allowing the Claimant to bring someone of her choice to redundancy meeting116. The Tribunal did not consider that this would have alleviated any disadvantage in the Claimant not being able to do her job. The Respondent is only required, under the ACAS rules, to offer a colleague or TU representative to accompany an employee. The Tribunal saw no evidence that the Claimant asked for father specifically to accompany her in order to be able to do her job. This allegation therefore failed and was dismissed. Victimisation Grievance raised on 8 March 21 Protected Acts117. The Tribunal found that this was an act which asserted an allegation that the Equality Act 2010 had been contravened. See s.27 (2)((d). The Tribunal found that this did amount to a protected act. Commencing ACAS on 20 April 2021 –118. The Tribunal had no evidence of what the Claimant told ACAS and therefore had no evidence or knowledge of whether the Claimant referred to the Equality Act. The Tribunal therefore could not say that this was protected act. Detriments (in relation to the 8 March grievance only) Training119. The pleaded detriment happened before protected acts so this cannot be victimisation. 120. Dismissal The Tribunal were satisfied that the dismissal occurred after both the protected acts. However, it was clear from 3 March 2021 that the Respondent’s intention to dismiss the Claimant had been formed, so the Tribunal concluded that it cannot be said that the dismissal was because of the protected acts, as the intention was formed before the protected acts. This allegation was dismissed. UNFAIR DISMISSAL 119. This claim is in time. s.111A 120. The Tribunal first considered s.111A; the Claimant asserted that the Respondent had conducted itself improperly under s.111A(4) and therefore the content of the meeting should be allowed to be taken into account. The conduct she said was improper, was putting her under pressure. The Respondent said that the act complained of was that she should have been given longer to decide. The Tribunal did not consider that that was an issue the Claimant relied upon. The Tribunal had very little evidence on this point at all. The Respondent’s evidence was that they were not expecting the Claimant to return to work on 8 March, so thought she was taking longer to consider. The Tribunal concluded this was not improper behaviour.[121]As to placing the Claimant under pressure; it was the way in which this was done which the Tribunal focused upon. The Tribunal noted that during the conversation on 3 March 2021 the Claimant was told that Miss Robinson had scored her as lowest. This had not in fact occurred. Miss Robinson’s evidence was clear and straightforward, she knew nothing of the idea of redundancy until just before the meeting, when she was asked to attend. At no point had she been asked to score the Claimant before the meeting. What was said to the Claimant at that meeting was therefore untrue and was said with the purpose of putting pressure on her to agree to the settlement. The Tribunal considered this behaviour by Ms Rezk to be improper. For that reason the Tribunal concluded that S.111A does not apply and it was are able to take into account what was said when considering the unfair dismissal claim. UNFAIR DISMISSAL[122]The Tribunal found that the reason for the dismissal was redundancy. The Respondent’s evidence was that the Group requested restructure. This was not contradicted by any other evidence.[123]The Tribunal found that the evidence showed that in March 2021 there was no scoring undertaken. The Respondent failed to show any documentary evidence to support the contention that discussions had occurred with regard to a redundancy process, nor that any criteria had been agreed or scoring occurred before then. However, it was clear from the conversation at the meeting on 3 and 4 March 21 that the Respondent had chosen the Claimant to be made redundant. Their discussion of the point with the Claimant was wholly misleading and was an attempt to avoid having to undergo a process at all.[124]The Tribunal noted that a consultation process was carried out in July 2021, but by then the Claimant was aware that the Respondent had already taken the view that she was identified as the person to leave. The Tribunal considered that the Respondent effectively had to make good the proposition that had been put to the Claimant on 3 March and tried to do so by creating a consultation process. Whether there was a genuine redundancy situation[125]The Tribunal noted that the Respondent had not shown any documentary evidence which suggested that reductions in manpower were required. The only evidence of the performance of the Respondent, came from the Claimant, was unsupported and suggested that the Respondent was doing well and not in financial difficulty. The witness evidence was from Miss Hamilton, who did not attend the Tribunal to give evidence and therefore the weight placed on her evidence could not be considered as significant. Miss Hamilton said that she was asked for a ‘steer’ prior to the pandemic on the people within the team, their experience level and their tasks and who was not performing well. She said that nothing was formally actioned at this time. She asserted that as a result of the pandemic she was told that the company needed to make savings and a reduction in staff was needed as a result of a reduction in work. The Tribunal noted that it saw no emails which backed up these assertions.[126]Miss Hamilton also said that the Claimant, as a junior Business Analyst could only be given limited work, which was not as plentiful, where as others had more all – round skills and required less support. There was no documentary evidence to support this and no cross examination took place of Miss Hamilton. The Tribunal saw no minutes of meetings, no emails and no scoring matrix which supported that any of these things happened.[127]Ms Rezk, who also did not attend to give live evidence to the Tribunal also referred to undertaking a review of each department as a result of the pandemic. She said that she was informed that the Respondent would likely need to reduce the number of employees to ensure sustainability of the business. Ms Rezk was not cross examined and therefore her evidence also could not hold significant weight. There was no documentary evidence to support her evidence, or to suggest where this order came from.[128]The Tribunal concluded that it had insufficient evidence to support the assertion that this was a genuine redundancy situation.[129]The evidence showed that the Claimant was told by Ms Rezk on 3 March 2021 that she had been scored lowest by Miss Robinson. This had not taken place and was a lie. Miss Robinson had not been told about the redundancy process at that point and had not been asked to score any of the staff she managed.[130]The evidence supported the fact that the Claimant was struggling to do her work without significant and repeated support from her colleagues and superiors and that this was what prompted the Respondent to approach the Claimant to exit the business. The Tribunal found that it was because she did not do so, that a redundancy process was undertaken[131]The dismissal was therefore unfair as the reason for dismissal was not due to a genuine redundancy situation but due to the decision not to continue to support the Claimant.[132]The parties agreed a sum for compensation which is set out in a separate Appendix to this judgment.