Ms M Polnik v Northampton General Hospital NHS Trust: 3313653/2022 and 3308932/2023
EMPLOYMENT TRIBUNALS
Case No 3313653/2022, 3308932/2023
Between
Ms M PolnikClaimantNorthampton General Hospital NHS TrustRespondent
Before
Employment Judge TynanMr R Ross (instructed by Counsel) for claimantMr B Amunwa (instructed by Counsel) for respondentDate 16 July 2025
JUDGMENT
[1]The Claimant’s complaint that the Respondent failed to comply with its duty to make adjustments, in contravention of Section 20 of the Equality Act 2010, succeeds in respect of the second limb of the third PCP (issue 9.2.3).[2]The Claimant’s remaining complaints that she was discriminated against as a disabled person pursuant to sections 15, 20/21 and 26 of the Equality Act 2010 and her further complaint that she was unfairly constructively dismissed are not well-founded and are dismissed.
REASONS
[1]The Tribunal gave an oral judgment on 18 June 2025, at the conclusion of which the Respondent requested written reasons in accordance with Rule 60(4) of the Employment Tribunal Procedure Rule 2024.
Introduction
[2]The Claimant presented her first claim to the employment tribunals on 19 November 2022 following acas early conciliation between 8 September and 20 October 2022. She was then still employed by the Respondent and claimed that she had been discriminated against as a disabled person. She subsequently resigned her employment with effect from 28 April 2023 and presented a second claim on 24 July 2023, which included a complaint of unfair constructive dismissal.[3]At the time of her resignation the Claimant was employed by the Respondent as a Band 6 Cancer Clinical Trials Nurse within the Department of Research and Innovation. She had been continuously employed by the Respondent since 20 February 2006. Issues and Evidence[4]The final hearing was originally listed for 7 days commencing on 20 January 2025. However, there was no Judge available to hear the case on 20 January 2025. Due to unforeseen circumstances, the Tribunal then could not sit on 23 and 24 January 2025, with the result that the case was adjourned part-heard on 28 January 2025 to 16 June 2025 for the remainder of the Respondent’s evidence and the parties’ submissions.[5]Any page references in this Judgment correspond to the 817 page ‘Hearing Bundle’.[6]The issues in the case are essentially captured in Employment Judge Hutchings’ record of the case management hearing on 28 March 2024, subject to a number of relatively minor points of clarification discussed on the first day of the final hearing and during Counsel’s closing submissions.[7]Whilst it is common ground that the Claimant has disabling mental health issues, it seems that these have not been formally diagnosed. Health professionals in the UK have suggested that the Claimant may have bipolar disorder, whereas a psychiatrist in Poland has instead suggested a neurotic disorder. In her disability impact statement (pages 778 to 783), the Claimant refers to various symptoms indicative of bipolar disorder, as well as a range of symptoms indicative of depression.[8]During the hearing, we ensured that there were 15 minute breaks every 45 minutes to accommodate the Claimant’s reported difficulties with concentration, memory, brain fog and fatigue. We facilitated additional breaks as and when these were required. We finished each day no later than 4pm. Questions to the Claimant were repeated or clarified as necessary to support her focus and understanding. It is well known that depression and other mental health impairments can impact concentration and memory, and we have held this firmly in mind in weighing the Claimant’s evidence and credibility as a witness.[9]On behalf of the Respondent we heard evidence from: Lucy Dudgeon, Clinical Research Manager at the Respondent – Ms Dudgeon was the Claimant’s line manager from January 2020; Michelle Spinks, Head of Research at the Respondent – Ms Spinks is responsible operationally for the Research Team and is Ms Dudgeon’s line manager; Kay Faulkner, Associate Director of Research, Innovation and Education at the Respondent between November 2020 and December 2023. Ms Faulkner was Ms Spinks’ line manager though assumed direct responsibility for the Claimant’s line management in August 2022 after the Claimant had submitted grievances regarding her alleged treatment by Ms Dudgeon; Rosemary McKee, a Bank Case Investigator – Ms McKee investigated the Claimant’s July 2022 grievances; and Mandy Massey, Head of Professional and Practice Development at the Respondent – Ms Massey determined the Claimant’s appeal against the outcome of her grievances.
Findings
[10]The document at page 287 of the Hearing Bundle provides a snapshot of how the Claimant’s health issues impacted her work attendance over a five year period from 2017. The Claimant was absent from work for approximately seven months in 2017 and then again for over fifteen months from mid-2019, returning to work on or around 29 October 2020. The Claimant was absent again from 25 January 2021 for approximately seven weeks, after she was infected with Covid and thereafter developed a further infection. It is unclear whether the Claimant then returned to work on her contracted hours or was on a phased return, but either way she was then absent again from 20 April 2021 for a further period in excess of six months with mental health related issues. The Claimant returned to work on 31 October 2021, albeit on reduced hours. She was absent again with Covid for upwards of three weeks in total in April 2022, but otherwise seemingly maintained attendance from November 2021 through to June 2022. Following an incident in the workplace on 10 June 2022, to which we shall return, the Claimant was then absent from work until she left the Respondent’s employment in April 2023 following her resignation. Looking at the period 2017 to 2022, and disregarding any holiday, the Claimant was at work for approximately 55% of the time over that five year period. The Claimant’s return to work in late 2020[11]Following the Claimant’s lengthy absence in 2019 / 2020, a Wellness Action Plan was put in place for her, in addition to the phased return to work. The Plan is at pages 148 – 152 of the Hearing Bundle. The Claimant did not regard it as a useful document.[12]The Respondent’s Occupational Health Physician, Dr Pathmanathan wrote on 21 October 2020: “It is likely that under stressful situations in the workplace, her mental health maybe stabilised however this pre-planning of tasks etc. should help to supress this.” We think there is a typing error and that he intended to say that the Claimant’s mood could be “de-stabilised” in stressful situations. It is unclear what pre-planning of tasks he may have had in mind, or whether by “this” he was referring to the Wellness Action Plan, something as we say the Claimant did not find helpful.[13]A letter dated 14 December 2020 at pages 158 – 159 of the Hearing Bundle documents a meeting on 9 December 2020 between the Claimant and Ms Dudgeon, attended by HR, to review the Claimant’s return to work. Ms Dudgeon noted in the letter that the meeting had been an opportunity for the Claimant to discuss any support mechanisms required, and that the Claimant had described her return to work as having gone very well, with no identified problems. It seems that the Claimant potentially had in mind reducing her hours / days of work, but that it was something she was having difficulty thinking about. Ms Dudgeon noted in this regard that the Respondent’s Occupational Health Physician (presumably Dr Pathmanathan) had suggested that the Claimant consider maintaining her existing hours and pattern of work so that she would continue to have a regular routine.[14]It is unclear whether the Claimant’s absences in early 2021 were connected to her longer term underlying mental health issues, though when the Claimant was referred by Ms Dudgeon for a further occupational health assessment in early March 2021 (possibly her ninth assessment in 12 months), we note that Ms Dudgeon sought advice regarding a potential reduction in the Claimant’s hours, and that at the assessment itself, the Claimant spoke of being physically and mentally exhausted.[15]There is reference in the resulting occupational health report dated 8 April 2021 (page 166) to the Claimant having moderately severe depression and moderate anxiety, in each case with reference to the PHQ-9 and GAD-7 diagnostic criteria. We do not know whether those assessments were carried out at or immediately prior to the occupational health assessment, or on some earlier occasion. The Occupational Health Advisor, a nurse, wrote, “If [she] continues to work 30 hours a week, taking into consideration her past history, future sickness absence episodes are likely.” Although she did not state in terms that consideration should be given to reducing the Claimant’s hours / days of work, this may be inferred and indeed, is more obviously indicated later in the report (page 167) where the Advisor stated that reduced hours appeared reasonable from a clinical perspective, but that it was ultimately a management decision as to what could be accommodated.[16]Pending receipt of the report, Ms Dudgeon had agreed with the Claimant that she would take one day each week as annual leave. This was seemingly in addition to a period of leave the Claimant may have taken immediately after her sick leave ended in March 2021.[17]Ms Dudgeon’s email of 6 April 2021 (page 164) and earlier letter of 14 December 2020 (page 158), evidence to us that she was not seeking to place obstacles in the Claimant’s way, rather that she wished to be accommodating and supportive of the Claimant, even if she accepts that she raised her voice to the Claimant in or around April 2021. The Respondent’s management of the Claimant’s six month absence in 2021, including its consideration of a reduction in her hours of work.[18]As we have noted already, the Claimant was on sick leave from 20 April 2021 for a period in excess of six months with mental health related issues The Claimant and Ms Dudgeon met on 29 June 2021 under the terms of the Respondent’s Supporting and Managing Workforce Sickness Absence policy (pages 683 to 733). They discussed that the Claimant might have bipolar disorder, but that, “there are no plans for any diagnosis to be confirmed presently.” (page 173)[19]In a letter to the Claimant dated 6 July 2021, which served as a record of what had been discussed on 29 June 2021, Ms Dudgeon went on to note, “We discussed previous adjustments made in your return to work whereby you were offered a fixed or flexible pattern of working days, some degree of flexibility in start and finish times and the option to take a longer lunch break to facilitate some time away from the department. Your workload was adjusted to non-patient facing studies (partly due to Covid restrictions) and mostly consisted of collecting and recording clinical data …” (page 174)[20]We are satisfied that the letter accurately reflects their discussion and the agreed adjustments that had been put in place over and above those which had been identified at the point the Claimant had returned to work on 29 October 2020 following her extended absence. It further evidences to us that Ms Dudgeon had kept an open mind in the matter and was responsive to the Claimant’s evolving needs, particularly as her own understanding of them evolved.[21]Ms Dudgeon noted in her letter of 6 July 2021 that whilst the Claimant’s previous request to reduce her hours had not been agreed to, because of what Ms Dudgeon referred to as “increasing our establishment” (by which we understand her to mean an increase in headcount), the Respondent could by then agree to the Claimant working 22.5 hours (or three days) per week. It is unclear from the Hearing Bundle and the parties’ evidence when the request had originally been refused; all we know is that the request was still under consideration in early April 2021. Having confirmed that a reduction to 22.5 hours could be accommodated, Ms Dudgeon went on to confirm that the Respondent would support a further phased return to work, with ongoing flexibility around start and finish times and breaks. Invited by Mrs Dudgeon to identify any further potential adjustments, the Claimant could not do so: she told Ms Dudgeon that the workload was not a problem.[22]The Claimant was accompanied on 29 June 2021 by Marie Hannah, her RCN representative. During the meeting, Ms Hannah introduced concerns regarding the Claimant and Ms Dudgeon’s working relationship, specifically tensions between them. However, Ms Hannah having introduced the issue, the Claimant then did not wish to discuss it further. Nevertheless, Ms Dudgeon did not leave matters on that basis, but instead acknowledged the discussion in her letter of 6 July 2021 and offered for the Claimant to contact Ellie Milligan, Interim Business Partner, who had been at the meeting.[23]Ms Dudgeon, not unreasonably, pointed out to the Claimant in her letter of 6 July 2021 that the Claimant’s sickness absence could not be supported indefinitely, though she reassured the Claimant that consideration of dismissal would be a last resort where there was either no prospect of a return, or absence levels were unsustainable. We pause here to observe that we think many employers would by then have taken the view that the Claimant’s level of absence had become unsustainable – she had by then been absent for 20 months or more in total over the preceding two years. Ms Dudgeon was explicit that the Respondent would continue to support the Claimant to identify reasonable adjustments, including re-deployment if appropriate. As the Claimant had become upset during the meeting, she was offered the ability to be supported additionally by her husband in any future meetings. She was also encouraged by Ms Dudgeon to contact her if she required any additional support. We find that these sentiments were genuinely expressed on Ms Dudgeon’s part.[24]Ms Dudgeon arranged a further sickness review meeting with the Claimant on 3 September 2021. Ms Milligan and Ms Hannah were in attendance once again. Following the previous meeting, Ms Hannah had written with her observations regarding difficulties in the working relationship between the Claimant and Ms Dudgeon, prompting a meeting between herself and Ms Milligan after feedback from both the Claimant and Ms Dudgeon as to how the relationship might be improved: one suggestion was a joint meeting with Dr Claire Hallas, the Respondent’s Lead Psychiatrist, to help Ms Dudgeon gain a better understanding of the Claimant’s mental health condition. However, the Claimant did not think Dr Hallas’ input would be beneficial. Whilst that is unfortunate, the Claimant did signpost Ms Dudgeon to advice or information on the Bipolar UK website which Ms Dudgeon said she would look into. Ms Dudgeon also raised the possibility of a round table discussion to discuss the working relationship and how to progress it, but the Claimant asked for this to be placed on hold. Again, that is unfortunate.[25]Around this time, Ms Hannah made the Claimant aware of the Access to Work scheme. It was noted on 3 September 2021 that this was something the Claimant was looking into; the focus of her enquiries seems to have been around raising awareness of her condition. Whilst we think the proposed joint meeting with Dr Hallas and/ or round table discussion would have served to raise Ms Dudgeon’s awareness of her condition, equally we recognise that if there was a need for greater understanding of the Claimant’s condition, this may well have extended beyond Ms Dudgeon.[26]During the meeting on 3 September 2021, the June 2021 offer to reduce the Claimant’s hours to 22.5 per week was reiterated. The Claimant expressed a preference to remain on 30 hours per week, albeit taking two days per week as annual leave. The Claimant’s position in this regard is difficult to understand; it lends the impression that she was only willing to accept her desired outcome in the matter. For example, one option available to her would have been to have accepted the reduction in hours whilst continuing to press the case for a further reduction to 15 hours, perhaps following a further review of how the 22.5 hour arrangement was working in practice. We do not think that the Claimant was being deliberately difficult in the matter, the more likely explanation is that her mental health issues impeded her ability to focus on the relevant issues and reach an informed decision in the matter, leading her to express a preference that seems to us to have been contrary to her own interests in the matter. It illustrates why the Claimant could perhaps be difficult at times to manage and support.[27]In her letter of 20 September 2021, documenting what had been discussed on 3 September 2021, Ms Dudgeon explained the reasons why it was felt that a reduction to 15 hours per week could not be accommodated. She wrote, “… I explained that we could not, as a service, support a contract of 15 hours per week, as your role involves the ongoing management and set up of a portfolio of clinical trials. Working these limited hours could lead to difficulties with the ongoing management, and communication problems. As you are aware, a key part of your Band 6 role involves the set up and oversight of these studies. With a limited number of hours, this could lead to problems with continuity and ongoing management of this process. You wanted to think about this, and we will discuss further at our next meeting. However, I did agree to do another review to consider your request.” (page 180) We accept that this was her genuinely and reasonably held view in the matter at the time, even if a few weeks later the decision was taken to offer a reduction to 15 hours per week on a trial basis.[28]Ms Dudgeon went on to confirm that the Claimant would be offered fixed days in the week, that the Respondent would consider flexibility around start and finish times, and that whilst working from home was generally not available due to the patient facing nature of the role, it could be accommodated for pre-booked meetings and training.[29]On 7 September 2021, the Claimant had a telephone review with Dr Pathmanathan. The outcome of the review was confirmed in a letter dated 14 October 2021 (dated 2022 in error). Dr Pathmanathan was of the view that the Claimant would be fit to return to work when her fit note expired and that a phased return over four weeks should be considered. He went on to say that he supported a reduction in the Claimant’s hours to 15 hours per week on the basis this might allow for continued stability with mental health and the possibility of more regular attendance at work. Beyond a gradual return to her duties, Dr Pathmanathan suggested a later start time, as well as some combination of remote working. He also recommended a Wellness Action Plan.[30]When the Claimant and Ms Dudgeon met again by Teams on 21 October 2021, with Ms Milligan and Ms Hannah once again also in attendance, the Claimant reported feeling much better. They discussed her imminent return to work, including that the Respondent could now support a 15 hour working week on a three month trial basis. In response to questions from Ms Hannah, Ms Dudgeon confirmed that the previous offer of a 22.5 hour week would still be an option if the trial proved unsuccessful. This was confirmed in a letter to the Claimant dated 25 October 2021 (pages 184 – 187) in which Ms Dudgeon confirmed, following further enquiry, that the Claimant would not be expected to use her leave entitlement in order to achieve the 15 hour working week that had been agreed on a trial basis. Ms Dudgeon went on to outline what the phased return might look like and encouraged the Claimant to complete an updated Wellness Action Plan as recommended by Dr Pathmanathan. Although the Claimant updated her Plan she did nothing with it, placing it instead in her drawer at work. We do not accept, as the Claimant seems to suggest, that Ms Dudgeon was in any way responsible for the Claimant’s decision not to share the Plan with anyone at the Respondent. By placing the Plan in her work drawer, the Claimant effectively rendered it obsolete notwithstanding Ms Dudgeon had explained to her, and confirmed in writing, that it would help guide her as Dr Pathmanathan had advised.[31]During the meeting on 21 October 2021, Ms Dudgeon discussed with the Claimant how they might communicate with the Claimant if she was not feeling well at work. The Claimant agreed that if Ms Dudgeon was concerned she was unwell, she should raise this directly with the Claimant. As the discussion progressed, Ms Hannah suggested that the Claimant could wear a coloured lanyard at work to indicate her mood on any given day so that she would not need to raise it with her colleagues. They also discussed the availability or otherwise of a quiet space within the department as the Claimant reported finding it difficult to concentrate in a busy office. Whilst there were a limited number of private rooms in the department, meaning that Ms Dudgeon could not guarantee the availability of a quiet space when needed, Ms Dudgeon was nevertheless optimistic that quieter spaces would be available to the Claimant as and when required. She also discussed with the Claimant the potential use of noise cancelling headphones and committed to reviewing the office layout. We explored this issue further with the Claimant at Tribunal: the only time she could identify when she had been unable to access a quiet space was on 9 June 2022. However, she went on to confirm this was not related to her disability, rather to her need to find a private room in which to attend a meeting unrelated to her health or work for the Respondent.[32]Although Ms Dudgeon had explained in their earlier meeting in September 2021 why homeworking could not be fully supported, Ms Dudgeon reiterated on 21 October 2021 that ad hoc activities such as training could be completed at home on an occasional basis by arrangement. Once again, when we explored this further with the Claimant at Tribunal she could not identify any specific times when home working had been prevented. Instead, the Claimant accepted that Ms Dudgeon had remained willing to considering any requests to work from home on a case by case / situation by situation basis.[33]There is a helpful summary of the adjustments implemented in relation to the Claimant prior to her return to work in November 2021 at page 456 of the Hearing Bundle. We are satisfied that it accurately captures the range of adjustments then in place in relation to the Claimant. The email of 10 November 2021[34]Shortly after the Claimant returned to work, Ms Dudgeon emailed the Claimant’s colleagues to inform them that the Claimant had returned to work on a phased basis after a long term absence due to mental health issues. She explained that the Claimant would be using a system of coloured lanyards to indicate her health and mood, including what the colours denoted (pages 816 and 817). Whilst it seems that the Claimant only saw a copy of this email for the first time in the course of these proceedings, she has not suggested that there was any time when a misunderstanding had arisen between herself and anyone in the department regarding the lanyard system. Events following the Claimant’s return to work on 3 November 2021[35]When the Claimant returned to work on 3 November 2021, she did so on a six week phased return. In his letter of 14 October 2021, Dr Pathmanathan had proposed a phased return over four weeks, which reflected paragraph 7.5.4 of the Respondent’s Supporting and Managing Workforce Sickness Absence policy which provides that phased returns, “…must not exceed four weeks” (page 715) It seems therefore that the six week phased return represented a further adjustment for the Claimant.[36]The Claimant and Ms Dudgeon met on 20 December 2021 by Teams, to review her phased return to work. Once again, there is a detailed letter from Ms Dudgeon which serves as a formal record of the matters that were discussed (pages 195 – 197). In essence, they continued to talk about many of the issues that had been under discussion during the Claimant’s extended absence. The Claimant told Ms Dudgeon that she could not identify any major problems with the phased return. For her part, Ms Dudgeon reported that she had found the coloured lanyards to be a very useful communication aid. By the time of the meeting on 20 December 2021, the Claimant had met with Dr Hallas, albeit without Ms Dudgeon as had originally been proposed. The Claimant reported finding the meeting with Dr Hallas being of limited benefit, and as a result no follow up meeting was scheduled. Ms Dudgeon noted that she wanted to build on the phased return by introducing some face to face patient visits over the following three month period. When the Claimant expressed some anxiety around her immunity to infection, a Covid risk assessment was proposed.[37]The document at page 198 of the Bundle is Ms Dudgeon’s note of a conversation she had with the Claimant on 14 January 2022. Upon arriving at work that day, the Claimant had put on her red coloured lanyard which signified that she might not in fact be sufficiently well to be at work. When Ms Dudgeon suggested to the Claimant that they talk in a private room, the Claimant initially refused. However, she then agreed to join Ms Dudgeon in a private room where she told Ms Dudgeon that she was extremely upset and angry. It seems that Ms Dudgeon had motioned to the Claimant the previous day to keep her voice down as she had become a little loud. It had previously been discussed between them that the Claimant had some propensity to talk loudly, but that she was not aware when she was doing this: it was agreed between them that Ms Dudgeon would alert the Claimant if she was perceived to be talking loudly. However, the Claimant complained that Ms Dudgeon had told her loudly to stop shouting, and said that when other staff spoke loudly Ms Dudgeon did not ask them to be quiet. Whilst this was not how Ms Dudgeon had remembered their interaction the previous day, she immediately apologised to the Claimant in case anything she had said had been misconstrued by the Claimant. In her note of their discussion on 14 January 2022, Ms Dudgeon noted that the Claimant had become aggressive and used inappropriate language towards her. We find that Ms Dudgeon sought to diffuse the situation by apologising again to the Claimant and that she had left her alone for the remainder of the day, having first satisfied herself that the Claimant felt well enough to remain at work. Ms Dudgeon worked at a different desk for the remainder of the day, we find in order to accommodate the Claimant’s needs even though she had herself been left feeling uncomfortable and unsettled by the Claimant’s hostility towards her. These matters are not referred to in the Claimant’s witness statement. She said at Tribunal that she could not recall the discussion. We accept Ms Dudgeon’s account in relation to it.[38]On the morning of the first day of the final hearing, we granted the Respondent permission to adduce a limited number of pages from the Claimant’s disclosed medical records. The Claimant was afforded an extended break of 30 minutes to read and digest the documents. As she was not asked about them until the second day of the hearing, she had been able to reflect upon them overnight and to consider any relevant context. The records evidence her interactions with her GP in the period after she had completed her phased return to work, leading up to the events of 9 and 10 June 2022.[39]When the Claimant saw her GP on 30 December 2021, it was noted that she, “…has had a [stressful] Xmas found herself doing some odd things yesterday, but is better today no concerns from the husband or work at present …”. The GP surgery attempted to contact the Claimant on or around 28 January 2022 to complete a review, which suggests to us at least some concern as to the Claimant’s wellbeing around the time of the events of 14 January 2022. A message was left for the Claimant on 28 January 2022 but the notes suggest she did not respond to it. We have not been provided with any record of the Claimant’s further interactions with her GP or the surgery after 28 January 2022 until she contacted the surgery on 23 June 2022 to request a sick note. Access to Work[40]One of the action points identified following the meeting on 20 December 2021 was that the Claimant was to contact Access to Work to arrange a workplace assessment. The Claimant believes that she made contact with Access to Work just a few days later. By 25 January 2022, an Access to Work grant had been approved. The grant was in respect of six identified items, the total cost of which was said to be £2,008.32 and to which Access to Work would contribute £1,004.90. The rationale for one of the items, a rising / standing desk is unclear since a rising / standing desk will typically address musculoskeletal issues. At Tribunal the Claimant explained that her stress and anxiety manifests in pain around her head and neck. This was not Ms Dudgeon’s understanding, who told the Tribunal that the rising / standing desk was for musculoskeletal issues unrelated to any mental health issues. The matter is not addressed in the Access to Work letter of 25 January 2022 nor is it referred to in the Claimant’s disability impact statement (pages 778 to 783). We prefer Ms Dudgeon’s evidence in the matter.[41]Access to Work was also willing to make a grant available for “Coaching sessions – 2 x 2 hours”: however, it is unclear whether this was intended to be a single coaching session for two people lasting up to two hours, or two coaching sessions for one person lasting up to two hours. There is no further explanation as to the issues the coaching might address and whether the coaching was to be made available to the Claimant or one or more others. Similarly, there was a grant to cover “Disability Awareness – support in the workplace”, but no further explanation as to what form that support might take or to whom it might be directed.[42]The Claimant and Ms Dudgeon had a one to one catch up meeting the same week that the Claimant received the letter from Access to Work. Unfortunately, there is no written record of their discussion or of a subsequent appraisal meeting on 11 March 2022.[43]The next available contemporaneous record and notes are of a Long Term Sickness Meeting on 18 March 2022 (pages 203 – 204). They confirm that the Claimant’s appraisal had been completed. At Tribunal the Claimant could not recall whether there had been an appraisal. Amongst the action points it was noted, “DSE self-assessment to be completed so a decision can be made about the equipment to order (AtW).”[44]Although the Claimant completed the DSE self-assessment, it seems that as with the updated Wellness Action Plan the Claimant simply placed it in her drawer at work. She said at Tribunal that she could not see its relevance in terms of the training or coaching that had been identified by Access to Work, or indeed the other matters covered by the grant. Given that the Access to Work grant would only cover one half of the cost of the items in question and that the rationale for the rising / standing desk in particular had not been provided, in our judgement it is unsurprising that the Claimant was additionally asked to complete a DSE self-assessment.[45]The meeting notes at page 205 give no indication that the Claimant had any concerns regarding delays in equipment being ordered. 10 June 2022[46]The Claimant complains that the Respondent’s alleged failure to implement her Wellness Action Plan on 10 June 2022 and to allow her to attend a meeting that day with Ms Dudgeon with a companion, breached trust and confidence and was also discrimination contrary to sections 15 and 20/21 of the Equality Act 2010.[47]A number of the core facts are not in dispute, namely that on 9 June 2022 the Claimant took a personal call whilst at work (she says during one of her breaks) – it related to voluntary work undertaken by the Claimant supporting families with children with cancer. Because no other room was available to her, the Claimant had taken the call in the office. The call was overheard by a colleague, who reported the matter to Ms Dudgeon as the call had lasted between 30 and 40 minutes, and the Claimant had been heard to be discussing some of her clients with her supervisor in a nonconfidential manner. Ms Dudgeon already had concerns that day, as the Claimant was observed to be wearing non-appropriate clothing to work, something that might indicate she was unwell; she was in leggings, flip flops and a relatively low cut top, rather than mandated informal business wear. Ms Dudgeon sought guidance in respect of both matters from Jo Smith, Associate Director of Nursing, who suggested that she speak to the Claimant immediately to remind her of the dress code and book a meeting the following day to discuss the other matter. We accept that Ms Smith suggested this approach so that the Claimant would not be overwhelmed with concerns. It is not in dispute that the Claimant asked the purpose of the meeting and was told by Ms Dudgeon that it was intended as a general catch up; again this had been suggested by Ms Smith.[48]Ms Dudgeon asked Ms Spinks to be in the vicinity on 10 June 2022 to provide support at the meeting if necessary given the perceived difficulties in the working relationship and because Ms Dudgeon was uncertain how the Claimant might respond to being asked about the call. When she proceeded to raise the matter with the Claimant, the Claimant was immediately apologetic and said that she did not expect to be paid for the time she had taken for the call. That is at odds with the explanation now provided by the Claimant, namely that she took the call during her break. We find she did not do so and that she was initially apologetic because she recognised that Ms Dudgeon had valid concerns in the matter; the fact that she did not challenge Ms Dudgeon on 9 June 2022 when she discovered she was in the room she had booked for the call, evidences to us that she did not wish to alert Ms Dudgeon to the fact that she had arranged a supervision on a non-work matter during work time. In any event, the issue was not simply that the Claimant had spent time on a nonwork matter whilst at work, but that client matters had been discussed in an open plan office without due regard for client confidentiality.[49]The Claimant became tearful and left her meeting with Ms Dudgeon. She proceeded to shut herself in the archive room which is close to a patient area. We accept Ms Dudgeon’s evidence that the Claimant screamed loudly and appeared to be in considerable distress for quite a number of minutes. We agree with Mr Amunwa that the Claimant account of what happened after she left the meeting with Ms Dudgeon is not credible. She says that she spoke to herself loudly in Polish, which was perceived by others as screaming. Had she simply been talking to herself, even loudly, we find this would not have been audible outside the room or certainly not in a way that would be mistaken for screaming. In any event, Ms Spinks evidence is also that the Claimant was shouting and screaming quite loudly. She was aware that the Claimant had undiagnosed bipolar disorder and was concerned not to aggravate the situation by entering the archive room. Certain of the Claimant’s colleagues emerged from their offices in response to what we find was a loud commotion; it is unlikely that they would have heard the Claimant, let alone emerged from their offices if she had simply been talking to herself in Polish. The fact, as we shall come to in a moment, that certain colleagues were subsequently reported to be distressed and upset, and that some form of one on one counselling was subsequently arranged for them, significantly undermines the Claimant’s account that she went to the archive room to calm herself and indeed undermines our ability to rely upon what she says more generally in relation to this matter, including her perception that she was being accused of fraud and that the discussion seemed like a disciplinary meeting. We prefer Ms Dudgeon’s balanced account of the meeting, which accords with the sensitive way in which she had endeavoured to broach matters with the Claimant, having first sought Ms Smith’s guidance in the matter. It is also consistent with the documented record of her sensitive, respectful and professional interactions with the Claimant during the two years or more that she managed her.[50]The Claimant asked to meet with Ms Dudgeon later that day. She says she had prepared eight questions for Ms Dudgeon. Their respective contemporaneous accounts of that meeting at pages 485 and 206/207 of the bundle are broadly consistent. Ms Dudgeon described the Claimant as having spoken to her in a slightly raise voice and with an aggressive tone, and that it was necessary for her to ask the Claimant to sit down. She recorded the Claimant as having said to her, “You’ve done nothing to work on our relationship” That criticism of Ms Dudgeon sits uneasily with the Claimant’s unwillingness to agree a joint session with Dr Hallas and/or a round table discussion with Ms Dudgeon, and with the evidence at paragraph 21 of her witness statement that she had acknowledged to Ms Dudgeon during their earlier meeting that the relationship had become a little easier. Events following the meeting on 10 June 2022, including the Claimant’s medical suspension[51]The Claimant went into the department early on Monday 13 June 2022. It was not one of her normal working days. A colleague, Kathryn Hall was already at work. The Claimant removed various of her personal items and, we find, told Ms Hall that she would be going sick. The Claimant says she does not recall speaking to Ms Hall. However, in a subsequent email to Ms Hall on 15 June 2022, she wrote, “Like I mentioned to you on Monday I will not come to work because of work related stress which affected me very badly”. (Page 213) It evidences both that she spoke to Ms Hall and that she told Ms Hall she would be taking sick leave. When questioned at Tribunal as to why she had gone into the department on a non-working day and removed her personal items, the Claimant said that she was simply decluttering her work space. We do not think that provides a ready explanation for her actions, which instead evidence to us that she was in an unsettled state of mind. It adds to the overall picture that the Claimant was increasingly unwell and reinforces why the Respondent had cause to be concerned for her wellbeing. The Claimant recalls asking for a copy of the Respondent’s Disciplinary Policy. We find this was because she wanted to consider whether the discussions the previous Friday fell within the ambit of the Policy.[52]The Claimant evidently anticipated that she would be absent from work for more than seven days as she said in her email of 15 June 2022 to Ms Hall that she had already spoken to her GP and that she planned to contact them the following week to secure a sick note covering her beyond the initial self-certification period. She evidently assumed she would have no difficulty in securing the necessary Fit Note even though her GP had then yet to assess her fitness to work.[53]The Claimant’s GP records confirm that she telephoned her GP practice on 23 June 2022 to request a Fit Note and that she told her GP she would be speaking to her union regarding her options. By 27 June 2022 she was in Poland.[54]In the meantime, Ms Spinks had spoken to two members of staff about what had happened on 10 June 2022. In an email to Ms Faulkner, Ms Dudgeon and Ms Hall on 17 June 2022, Ms Spinks reported that two staff members had been, “extremely distressed” by the events of 10 June 2022 and that others had also been “upset and distressed”. They reported other concerning or unusual behaviour on the part of the Claimant, and one of them referred to anxiety within the department around the Claimant’s “unpredictable behaviour” (page 215).[55]Ms Dudgeon spoke with Moya Flaherty, the Lead Nurse for Supporting Our Staff on 23 June 2022, as she wanted to explore how she might support the Claimant and the wider team given what had happened. A Trauma Risk Management (“TRiM”) planning meeting was convened the following day, attended by Robyn Thorman, Ms Flaherty, Dr Hallas and Ms Dudgeon. A number of actions were identified, including sessions with those affected. In the event, there were two group sessions attended by six members of staff, and four one-to-one sessions. Ms Flaherty would later report that all those spoken to had expressed concern for the Claimant’s wellbeing, but also heightened anxiety around the Claimant’s unpredictable behaviour and concern as to what might happen in the future. It was arranged for Dr Hallas to speak with the Claimant and offer one to one support: this discussion took place on 10 August 2022. Dr Hallas also met with Ms Dudgeon who had requested psychological support and advice on the best methods of supporting the Claimant, particularly in terms of her return to work. They had a follow up meeting the same day, attended by an Organisation Development Consultant, in the course of which Ms Dudgeon was signposted to MIND online information, including workplace support for employers. When she was interviewed by Ms McKee later in the year, Dr Hallas said that she had discussed with Ms Dudgeon how the MIND online information might apply to the experience of managing and supporting the Claimant’s return to work. She said, “LD requested support to understand how living with a bi-polar condition and its symptoms could impact on MP’s work tasks, her hours and ability to manage these.” “She sought advice on how she could effectively communicate with Gosia about her psychological health and make supportive changes to her workplace and tasks.” (page 487)[56]She went on to say, “From a psychologist’s perspective, I have observed that Lucy has always shown great regard for Gosia’s and her other team members’ wellbeing and mental health.” Dr Hallas’ perspective is consistent with what we have already said regarding Ms Dudgeon’s approach to managing the Claimant.[57]The Claimant suggests that Ms Dudgeon gave her the option to go on authorised paid leave until she could be assessed by occupational health. The contemporaneous documents do not support the Claimant’s account in this regard, which she stuck to rigidly at Tribunal in spite of the evidence to the contrary. Ms Dudgeon discussed the situation with Jo Smith, Associate Director of Nursing on 28 June 2022, when it was agreed that Ms Dudgeon would contact the Claimant on Friday that week to secure her consent to an occupational health review with psychological input. Assuming her consent was forthcoming, the Claimant was to be given paid leave for a period of one week to facilitate an urgent meeting with HR, “So we can make a safe plan” Ms Smith expressed the view, “She has exhibited unsafe behaviour” and “She has breached her code of professional conduct.” (page 218)[58]Ms Dudgeon secured the Claimant’s agreement to a further occupational health referral on 1 July 2022 and submitted a detailed request for advice the same day. The Claimant followed up on 4 July 2022 when she confirmed that she was content for a psychologist / psychiatrist to be present at any review. In her detailed email to the Claimant of 1 July 2022, Ms Dudgeon had confirmed that the authorised leave would be for one week only. However, her plans were upended when it transpired that an occupational health appointment could not be offered until 27 September 2022, the Claimant being unavailable for an earlier appointment on 10 August 2022. The Claimant responded to Ms Dudgeon the same day thanking her for the authorised leave, “until I have an appointment with the OH service” She was purporting to accept an arrangement that had not in fact been proposed.[59]When Ms Dudgeon relayed the Claimant’s response to Ms Smith, Ms Smith directed that the Claimant was to be medically suspended as soon as possible (page 229). This was confirmed in a letter from Ms Dudgeon to the Claimant the same day. She wrote, “… After a review of any potential measures we could put in place, the outcome of this discussion was that we were concerned that if you were to return to work prior to an assessment by Occupational Health that you may be at risk to yourself or colleagues. In view of this and in accordance with section 7.7.12 of the Trust’s Supporting and Managing Workforce Sickness Absence Policy, I am writing to confirm that you will be medically suspended until you have been seen by our Occupational Health team due to these concerns. This means that you will not be able to attend work until the appointment with Occupational Health has taken place and we have met and discussed the report recommendations. We must stress that this medical suspension does not constitute any form of disciplinary action and is a precautionary action which has been put in place due to the concerns we have regarding your health and your fitness to attend work, which may present a risk to either yourself or others. …” (page 233)[60]Ms Dudgeon confirmed that the Claimant would receive full pay and that should a Fit Note be issued, the suspension would cease and the Claimant’s absence would be recorded as sickness absence instead.[61]It was subsequently agreed that the Claimant would be seen by occupational health earlier, albeit this still could not be arranged until 16 August 2022. The Claimant’s grievances and other matters during the second half of[62]On 18 July 2022, the Claimant submitted two formal grievances, the first alleging bullying, harassment, victimisation and disability discrimination, essentially regarding the events of 10 June 2022, but which made reference to other matters including the Respondent’s alleged failure to implement the Access to Work recommendations (pages 238 to 241). The second grievance (pages 242 to 244) concerned alleged direct and indirect disability discrimination, “which took place on 10th of June”, albeit which included a more extensive chronology of events beginning with Ms Dudgeon allegedly being sharp with the Claimant on 1 December 2020.[63]On 1 August 2022, the Claimant submitted a Fit Note backdated to 7 July 2022 certifying her unfit to work by reason of stress and anxiety until 13 August 2022. Further Fit Notes were issued on 16 August, 16 September and 12 October 2022.[64]As noted already, the Claimant spoke with Dr Hallas on 10 August 2022. The occupational health appointment followed on 16 August 2022. The review was conducted by Dr Goss, a Consultant Occupational Health Physician. The Claimant agreed with Dr Goss that he needed to contact both her GP and therapist to ascertain if there were any steps for further treatment which might be beneficial in increasing the Claimant’s resilience to events and triggers (page 262). It was Dr Goss’ intention to review matters with the Claimant once he had that information and thereafter to address the questions that had been put to him by the Respondent, including whether the Claimant could return to her job or if consideration should be given to redeploying her.[65]The following day, the Claimant attended a grievance meeting chaired by Kay Faulkner. She was accompanied by the Regional RCN Officer. Ms Faulkner wrote to the Claimant at some length on 22 August 2022 on the issue of work place adjustments, albeit leaving open the question of whether the Claimant had been discriminated against (pages 267 to 270). This was on the basis that Ms Faulkner intended to commission a formal grievance investigation in the matter. Although it was a slightly unusual approach, we can understand why it was handled by Ms Faulkner in this way, namely, to ensure that all relevant adjustments were in place to support a return to work at the earliest opportunity even if the Respondent would need longer to consider whether there had been discrimination. However, in the event, the Claimant appealed against the more limited findings and conclusions in Ms Faulkner’s letter: it was decided that the issues raised by the Claimant on 4 September 2022 on appeal would additionally be investigated by the independent investigating officer appointed to consider any broader concerns that she had been discriminated against.[66]The formal grievance investigation was commissioned on 3 October 2022, Ms Faulkner having signed off the terms of reference on 29 September 2022. There is no explanation for that five to six week delay (from the date the grievances were submitted), particularly in the context that the Respondent’s Grievance Procedure envisages that any investigations and reports will ideally be completed within eight weeks. However, the summary flowchart appended to the Procedure is unclear as to when those eight weeks run from – on one interpretation, the eight weeks run from the point at which the case manager has written to the aggrieved employee following a meeting with them, to confirm how the grievance will be taken forward, which in this case was on 22 August 2022. On that interpretation of the Procedure, the investigation, and possibly case manager’s report, could reasonably have been expected by 17 October 2022, assuming of course that an eight week timescale was realistic in this case.[67]Ms McKee’s report was to be sent to Ms Faulkner for her review. We accept Ms McKee’s evidence that this is standard practice and it is then for the case manager to share the report as and when appropriate with the person who has raised the grievance.[68]Ms McKee took fourteen weeks and four days from commission to produce her report. Her unchallenged evidence was that she had devoted just over 364 hours to the task. Her report runs to some 76 pages not including 33 appendices. In section 6 of her report, Ms McKee identified a number of factors that had contributed to the time frame, including a three week delay due to the Claimant’s ongoing health issues and the unavailability of her union representative. Various other individuals were impacted by injury and sickness, including Ms McKee herself. As Ms McKee also said in her evidence at Tribunal and, we accept, it was a complex matter, borne out by the length of the report.[69]In the meantime, the medical suspension was reinstated on 12 November 2022 because the Respondent understood that the Claimant’s sickness absence would or might end on that date.[70]There was a Long Term Sickness Absence Review meeting on 14 November 2022 chaired by Ms Faulkner who had by then assumed line management responsibility for the Claimant in the light of her outstanding grievances.[71]The Claimant had a scheduled occupational health review with Dr Goss on 6 December 2022. Ms Faulkner submitted a further referral on 14 November 2022 ahead of the review, broadening the ambit of the enquiry to consideration of whether Research and Innovation was a suitable environment for the Claimant in which to maintain sustained attendance at work, having regard amongst other things to the physical environment, the nature of the work and the department’s ways of working.[72]Ms Faulkner spoke to Dr Goss on 30 November 2022. Unfortunately, the planned review on 6 December 2022 could not go ahead as Dr Goss was unwell. This led Ms Faulkner to delay a further planned Long Term Sickness Absence Review meeting with the Claimant scheduled for 19 December 2022 until 25 January 2023.[73]Disability Awareness sessions were delivered within the department on 12 and 14 December 2022. Dr Goss’ 4 January 2022 report[74]On 4 January 2023, Dr Goss produced a further report in respect of the Claimant (pages 493 – 496). He noted that the Claimant’s GP had reported her mood to have been quite stable over the preceding couple of years on relatively low doses of medication, a view shared by the Claimant. Dr Goss went on to say, “It is Gosia’s clear view that the events of concern in the workplace are ultimately quite separate and were the inevitable consequence of a number of specific workplace factors or triggers. She fully accepts herself that she had something of a ‘meltdown’ and says that she reached this ‘tipping point’ with this specific event on the back of an ongoing difficult relationship with her manager and other workplace issues, which she perceives have not been sorted out.” (page 494)[75]He expressed his medical opinion in the matter as follows, “It is my opinion that Gosia has an underlying mental health condition which can be associated with significant and potentially serious fluctuations in mood, but the evidence suggests this condition in its own right has been largely stable for the past couple of years. She received appropriate medical treatment and as far as I am able to establish, as there are no plans for any adjustments to her treatment, this condition should be regarded as maximally medically treated.”[76]Dr Goss then addressed certain of the matters that had been posed in the referral. Amongst other things, he wrote, Gosia confirmed today that owing to recent events and the breakdown in the relationship with her manager, that she does not currently feel, and is unlikely to ever feel, able to return to her current role – for the benefit of her mental health and wellbeing overall. I asked if this might change dependent on the outcome of her grievance, which is still being investigated, but she confirmed that from her perspective too much has now happened and cannot be rectified.” His letter concluded, “Given that Gosia is absolutely clear that she will not be returning to her existing employment I have not therefore addressed the various specific questions on Page 5 of the latest referral and indeed, many of those are not something which I will be able to comment upon in any detail in any case.”[77]Although Dr Goss did not therefore address the issue in terms, there was nothing in his letter that obviously indicated he believed the Claimant to represent a risk either to herself or to others, and indeed the fact he addressed at some length her potential return to work in a re-deployed role is strongly indicative that he did not see any impediment to her return to work at that time, even if the perceived breakdown in working relationships precluded a return to Research and Innovation. The Claimant’s resignation[78]The Claimant resigned her employment on 5 March 2023. Her resignation letter is at page 617 of the Hearing Bundle. It is a reasonably detailed letter which evidences that the Claimant’s decision to resign her employment was the result of careful consideration on her part rather than a hasty decision. In her letter she identified two, possibly three matters that had caused her to resign her employment; the letter is slightly ambiguous as to whether the Respondent’s alleged failure to “follow the guidelines of OH doctors” was in the context of her medical suspension or reflected some broader concern. If it was the latter, we are unclear as to which guidelines the Claimant felt had not been followed. The other matter cited in the Claimant’s resignation letter was the “unreasonable delays in delivering my grievance and appeal outcome, which I still have not received”. We find that she was referring to Ms Massey’s alleged unreasonable delay in providing a decision on the grievance/grievance appeal, namely from the point at which Ms Massey received Ms McKee’s investigation report.[79]Ms McKee’s report was submitted to Ms Massey on 13 January 2023. It ran to some 75 pages, or 733 pages inclusive of appendices. Ms Massey was on leave the week commencing 16 January 2023, and then unwell, as she explained to the Claimant in an email sent on 25 January 2023. She returned to work on 30 January 2023 and, in an update the following day, explained to the Claimant that the earliest she would get back to her would be 20 February 2023 (the Claimant would later write in an email to Ms Faulkner that Ms Massey had committed to provide her with an outcome by 20 February 2023, which was not what Ms Massey had said). When the Claimant replied to Ms Massey on Friday 3 February 2023 to say that there was unreasonable delay in the matter and requested a copy of Ms McKee’s report, Ms Massey responded the following Monday and apologised for the delay, before going on to explain that she wished to give the matter the time it required. She also explained that it would not be appropriate to release a copy of Ms McKee’s report to the Claimant until she had completed her own review in the matter. She offered to speak to Ms Dudgeon to see how the Claimant might be supported in view of the reported effect of the ongoing delay on the Claimant’s mental health.[80]Ms Massey emailed the Claimant on 20 February 2023 with a further update, namely that she was in the process of writing up her recommendations and would be sending these to Ms Faulkner to discuss with the Claimant. She asked the Claimant to allow her a couple of days to write the relevant report up and referred to a seemingly previously discussed plan for the outcome to be shared with the Claimant on her return from planned annual leave. In that regard, the documents in the Hearing Bundle evidence that the Claimant had been discussing her accrued leave entitlement with Ms Faulkner as part of the review of her long term sickness absence, including the lifting of the medical suspension. At a review meeting on 9 February 2023, the Claimant had signalled her intention to take the entirety of her accrued leave immediately, meaning that she would not return to work following the lifting of the medical suspension until 6 April 2023. However, she subsequently informed Ms Faulkner on 18 February 2023 that she would instead carry forward 8 days of her accrued leave, meaning that she would return to work on 2 March 2023 (see page 599). This provides the most likely explanation for Ms Massey’s confusion and mistaken belief on 3 March 2023 that the Claimant would be returning from annual leave on 6 March 2023, namely she conflated two dates.[81]Ms Massey continued to update the Claimant in the matter, informing her in her email of 3 March that the first draft of the outcome was with HR and would be provided to the Claimant once Ms Massey had secured confirmation that “everything has been checked” (page 609). When the Claimant emailed her early on 6 March 2023 stating that she did not know where the date of 6 March had come from, and that she had returned to work the previous week, Ms Massey emailed her at 7.15am, thanking her for her patience and confirming once again that she would be in touch just as soon as she heard back from HR. A short while later, at 8.06am Ms Massey emailed the Claimant in response to a separate email the Claimant had sent her the previous day, Sunday 5 March 2023, in which the Claimant had questioned whether it would be appropriate for Ms Faulkner to provide the feedback on the grievance/grievance appeal as Ms Massey had suggested on 20 February 2023. Ms Massey stated that she would be speaking to Joanna Gardener about the matter in Sarah Cox’ absence on annual leave (p.611). Rather than await Ms Massey’s further response or indeed sight of the outcome report, which she would have understood to be imminent, she emailed Ms Faulkner at 8.49am resigning her employment. The resignation letter is at page 617 of the bundle. We shall come back to the letter in our conclusions. Whilst there were in fact further delays in the grievance/grievance appeal outcome being provided to the Claimant, it seems because Ms Massey had prepared her report in an incorrect format, or at least the Respondent’s HR asked her to provide the outcome in a letter as opposed to tabular form, those further delays were plainly not a factor in the Claimant’s decision to resign. Law and Conclusions S.15 and s. 20 / 21 of the Equality Act 2010[82]Section 15 of EqA 2010 provides, 15 Discrimination arising from disability (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.[83]Section 20 of EqA 2010 defines the duty to make adjustments as follows, Duty to make adjustments(1) …(2) …(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.(4) …[84]It is not necessary in this case for the Tribunal to have regard to the second or third statutory requirements.[85]For convenience we shall deal with the s.20 / 21 complaint prior to the s.15 complaint. Section 20 of EqA 2010[86]In is not in dispute that the Respondent applied or operated the following PCPs: 86.1. A requirement for the Claimant to undertake her contractual role; 86.2. A requirement to work in an open plan research and innovation clinical area; 86.3. A requirement/expectation to attend informal meetings with management without a companion and at short notice; and 86.4. A practice of medically suspending staff if they posed a risk to themselves or others in the workplace.[87]The disadvantage to which the PCPs gave rise is recorded at paragraph 9.3 of the List of Issues as being a significant fluctuation in the Claimant’s mood and behaviour. That does not engage particularly clearly with the four stated PCPs, for example which elements of the Claimant’s contractual role the Claimant could not do, or only do with greater difficulty, due to significant fluctuations in her mood and behaviour, and in what ways those fluctuations caused difficulties for the Claimant working in an open plan environment. On this latter point, the principal difficulties highlighted by the Claimant are that she could not maintain focus in a busy, noisy open plan environment, which is not obviously about her fluctuating mood and behaviour. We have given thought to whether we might try to ‘reverse engineer’ our understanding in the matter, that is to say by working with the adjustments that have been contended for to identify the disadvantage(s) they might have addressed and, in turn, which of the four PCPs gave rise to the disadvantage(s). However, it seems to us that we would then be stepping into the arena, something we should not do. With the exception perhaps of the second, third and eighth adjustments (Issues 9.5.2, 9.5.3 and 9.5.8) it is not obvious to us which adjustments relate to which PCPs, let alone the specific disadvantage(s) that they might ameliorate or remove. It is for the Claimant to establish her claims, or at least to place sufficient information before the Tribunal so as to shift the burden of proof in the matter to the Respondent. As regards the first and second PCPs she has failed to do so. In any event, it seems to us that the Respondent took substantive action to have discharge its 20 / 21 duty to the Claimant given the range of adjustments it implemented in relation to her, as noted already in these reasons and set out in paragraphs 23 and 24 of Mr Amunwa’s closing submissions.[88]As regards the third PCP, the stated disadvantage is more obviously and closely related to the PCP. The Claimant is complaining about the meeting on 10 June 2022. We are satisfied that she was disadvantaged by a requirement to attend informal meetings with management at short notice, in that her mental health issues made it more likely that such meetings would be ‘triggering’ in terms of her mental health because she experienced fluctuations in her mood and behaviour. We do not require expert medical evidence to reach that conclusion; section 3 of the Claimant’s 2020 Wellness Action Plan, which had been signed off by Ms Dudgeon, and which reflects that English is not the Claimant’s first language, clearly describes the need for structure and that the Claimant does not respond well to uncertainty or ad hoc situations. In any event, Dr Pathmanathan’s professional advice in October 2020 was that under stressful situations in the workplace the Claimant’s mental health could be destabilised. A management meeting to discuss workplace concerns, even if outside the Respondent’s formal processes, would undoubtedly represent a stressful situation for the Claimant.[89]The Claimant’s previous reaction on 14 January 2022 evidences that she was prone to experience emotional dysregulation in situations of perceived conflict, or at least where concerns regarding her conduct at work were raised without prior warning and at short notice. Particularly given that Ms Dudgeon had had that experience with the Claimant earlier in the year, but in any event, given Dr Pathmanathan’s advice in October 2020, we conclude that Ms Dudgeon knew or ought to have known that the Claimant would be at a disadvantage when spoken to on 10 June 2022. Indeed, she seems to have recognised as much insofar as she sought guidance in the matter from Ms Smith and arranged for Ms Spinks to be on hand if needed.[90]Whilst the formulation of the third PCP reflects the amended Particulars of Claim at page 35 onwards of the Bundle, we note that in her initial claim to the Tribunal the Claimant referred at paragraph 11 of the addendum to form ET1 to the meeting having been arranged without prior consent, explanation and agreement. These aspects, rather than the lack of companion and short notice, seem to have been the focus of her complaint and evidence. Indeed, we note that the Claimant did not originally complain in her ET1 about her inability to be accompanied on 10 June 2022. Whilst the Claimant had been offered the ability to be supported by her husband at Sickness Absence Review meetings, we do not infer from that that the Claimant was disadvantaged by any expectation to attend internal discussions or meetings without a companion. There is no evidence (certainly that we were taken to) to indicate that the Claimant was disadvantaged, or that she considered herself to have been disadvantaged. Although she is affected by memory and concentration issues, her Wellness Action Plan does not reference any need for a companion during any discussions with her line manager, nor was this recommended by Dr Pathmanathan.[91]In summary, we are satisfied that the Claimant was at a disadvantage when compared to others without her disability in so far as the requirement/expectation to attend informal meetings with management at short notice was more likely to be destabilising of her mental health and more likely to result in emotional dysregulation, manifesting in fluctuating mood and behaviour.[92]As regards to the fourth PCP, although the disadvantage can be read purposefully such that it relates to the PCP, namely that significant fluctuations in her mood and behaviour made it more likely that she would be perceived to be a risk to herself, colleagues and patients and accordingly that it was more likely that she might face suspension, in our judgement the Claimant has failed to established that she was in fact disadvantaged in the matter, let alone placed at a substantial i.e. more than minor, disadvantage. Her pay and sick leave entitlement were preserved during her medical suspension; indeed, it seems to us that medical suspension was potentially advantageous to the Claimant if it did not count towards her sick pay entitlement which would otherwise have been depleted had she remained on sick leave after 11 November 2022. The Claimant’s email of 10 July 2022, at page 236 of the Bundle, evidences that her only concern in the matter was that she should remain on full pay pending the further occupational health assessment, which was indeed the case. Mr Ross’ assertion that the medical suspension was stigmatising does not reflect the Claimant’s evidence which is that she was shocked and upset by the statement that she might present a risk rather than necessarily by the act of suspension itself, let alone that it was personally or professionally stigmatising.[93]In conclusion, we are satisfied that the Respondent’s s.20 duty was triggered in relation to the Claimant in respect of the second element of the third PCP. In which case, the question is what steps it was reasonable for the Respondent to have taken to avoid the resulting disadvantage.[94]In Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10, the EAT confirmed that there does not necessarily have to be a good or real prospect of an adjustment removing a disadvantage for that adjustment to be a reasonable one. Instead, it is sufficient for the tribunal to find that there would have been a prospect of the disadvantage being alleviated, a point also made in Noor v Foreign and Commonwealth Office 2011 ICR 695, EAT. These decisions were endorsed by Elias LJ in Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA, in which he observed: ‘It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.’[95]In Smith v Churchills Stairlifts plc 2006 ICR 524, CA, the Court of Appeal confirmed that the test of reasonableness is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters. The Claimant does not have any burden in the matter, since the duty, once triggered, is an employer’s. Whilst the Equality and Human Rights Commission’s statutory Code of Practice on Employment includes examples of matters that a tribunal might take into account (see para 6.28), our focus is on the practical result of the measures that can be taken. In Burke v The College of Law and anor 2012 EWCA Civ 37, CA, the Court of Appeal made it clear that an holistic approach should be adopted when considering the reasonableness of adjustments in circumstances where it takes a number of adjustments, working in combination, to ameliorate the substantial disadvantage suffered by a claimant. The Claimant says that the Respondent ought to have implemented the Wellness Action Plan during the meeting of 10 June 2022 and permitted the Claimant to attend the meeting on 10 June 2022 with a companion. The second adjustment falls away given that she has not established that she was disadvantaged by the lack of a companion.[96]The Wellness Action Plan does not particularly assist in the matter of the timing or scheduling of the meeting. Although the Claimant refers to chaos as a situation that might trigger poor mental health, the discussion itself cannot be described as chaotic even if the Claimant’s response or reaction to it may have been pronounced. In our judgement, however, the Respondent did breach its s.20 duty to the Claimant by failing, particularly after the Claimant twice asked the purpose of the meeting, to provide advance written confirmation of the issue of concern that Ms Dudgeon wished to discuss with her, and the reason why it was felt to be of concern. Whilst we do not think there was necessarily a good chance of the Claimant’s dysregulation being avoided or alleviated, having regard to Keith J’s judgment in Leeds Teaching Hospitals NHS Trust, there was at least ‘a’ prospect in the matter. We think that Ms Dudgeon was preoccupied with her own ‘needs’ as it were, in the context of understandable concerns on her part that the conversation with the Claimant might not be an easy one. The Wellness Action Plan refers to the need for the Claimant’s manager to plan things in advance, which is what Ms Dudgeon evidently sought to do, speaking to the Claimant on 9 June regarding her work attire and deferring the discussion about the Teams call to a separate meeting when Ms Spinks would be on hand. But if Ms Dudgeon had time to gather her thoughts in the matter and prepare herself for the discussion, she perhaps overlooked that scheduling the meeting as a general catch up, without any further detail, denied the Claimant the same opportunity to gather her thoughts, reflect overnight, perhaps speak to her husband and as appropriate her union, and prepare herself for the discussion. It was a simple adjustment that would have put the Respondent to no expense and taken Ms Dudgeon just a few minutes to craft. All she needed to convey in writing to the Claimant was that she had been observed to take time during her working day to deal with a non-work matter, in the course of which she was believed to have discussed confidential client related issues in an open plan environment within the hearing of another person. The ease with which this adjustment could have been made, weighs in the balance in terms of the likelihood of the adjustment addressing the disadvantage experienced by the Claimant. It is not a case of judging Ms Dudgeon’s approach with the benefit of hindsight, rather taking a simple and reasonable step to address the identifiable risk of an adverse reaction on the part of the Claimant in circumstances where, on her own evidence, Ms Dudgeon understood that it was important not to overwhelm the Claimant.[97]We uphold the Claimant’s section 20/21 claim in respect of the second element or limb of the third PCP. Section 15 of EqA 2010[98]Paragraph 7 of the List of Issues reflects the complaints within the first claim. Paragraph 8 was added to the List of Issues following the second claim. As regards paragraph 7, the ‘something’ arising is said to be the Claimant’s resignation. However, the unfavourable treatment complained of pre-dates the resignation which cannot therefore have been the reason for the treatment. This aspect of the claim is not addressed in Mr Ross’ written submissions; he acknowledged the difficulty of the Claimant’s position in the course of his oral submissions. In our judgement, the complaints cannot succeed; we would be stepping into the arena if we were to re-write Issue 7.2 since we would be required to identify for ourselves what things potentially arose in consequence of the Claimant’s disability and may have resulted in the treatment complained of. And of course, we were only in a position to do this in the course of our discussions, when the evidence had been heard and submissions had been made, with no opportunity therefore for the Respondent to consider its position or address the Tribunal. In our judgement, the complaints indicated in paragraph 7 of the List of Issues are not well founded.[99]As regards paragraph 8 of the List of Issues, the ‘something’ arising is said to be health and safety risks to the Claimant and/or others associated with the Claimant returning to work prior to appropriate occupational health advice and/or recommendations being received by the Respondent. Those risks arose in consequence of the Claimant’s disability; her concerning behaviour on 10 June 2022 was self-evidently the manifestation of her long standing, disabling mental health issues.[100]However, for essentially the same reasons that the Claimant was not disadvantaged by her medical suspension, we do not consider the suspension was unfavourable treatment for the purposes of s.15(1)(a) of the Equality Act 2010. As regards the reimposition of the suspension when it seemed in November 2022 that the Claimant might return to work following the expiry of her Fit Note, we can understand why it might be argued that keeping an employee away from work against their wishes might be unfavourable treatment. Although, in her email to Ms Faulkner at page 405 of the bundle the Claimant asked why medical suspension was felt to be applicable rather than authorised paid leave, the question was not posed in such a way that she was expressing unhappiness with the decision, rather she wished to understand the Respondent’s reasoning in the matter. We were not taken to any other documents in the bundle that evidence any particular concerns or dissatisfaction on the Claimant’s part. In paragraph 69 of her witness statement, the Claimant states that she agreed on 14 November 2025 that the Research and Innovation Team was not a good environment for her, which suggests that at the point the medical suspension was reinstated she was in agreement with it.[101]Even if we were to conclude that the Claimant’s renewed suspension (or even her original suspension in July 2022) was unfavourable treatment, then for essentially the same reasons we do not uphold her complaint about these matters under s.26 (to which we return below), we are satisfied that the Respondent acted proportionately in suspending the Claimant in July 2022 and reimposing that suspension on or around 11 November 2022. Its legitimate aims in the matter were to manage any potential risks the Claimant presented to herself and to others, including patients, by reason that she was seemingly experiencing a mental health crisis. The Respondent acted proportionately in the furtherance of those aims by referring the Claimant for an occupational health assessment, albeit which could not be arranged in the first instance until 16 August 2022, and by reimposing the medical suspension when it seemed that the Claimant might return to work at a point in time when the Respondent’s Occupational Health Physician had yet to hear back from the Claimant’s GP and therapist with essential information to enable him to reach an informed view as to whether or not she represented a risk to herself and/or others. It is relevant in this regard that the Claimant agreed with Dr Goss as to the need for him to make contact with her GP and therapist. We cannot identify a less impactful approach, not least in the context that at least until November 2022 the Claimant would in any event have been absent on sick leave had she not been medically suspended. The Respondent did not unreasonably delay in the matter, even if there was a short delay in late 2022 as a result of Dr Goss being unwell. Redeploying the Claimant, as she suggests in relation to her s.20/21 complaints, would simply have transferred the risk to another team rather than have addressed or even mitigated it. We accept the Respondent’s evidence and Mr Amunwa’s submissions at paragraph 16.8 of his closing submissions that working from home was not an option at that time given that the department mainly worked at that time with paper records which could not be removed from the department for obvious confidentiality reasons and to ensure GDPR compliance. Section 26 of the Equality Act 2010[102]Section 26 of EqA provides, (1) A person (A) harasses another (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.[103]In order to succeed in her s.26, complaints the Claimant must do more than simply establish that she has a protected characteristic and that she was subjected to unwanted conduct: Madarassy v Nomura International plc [2007] IRLR 246. There must be facts from which we could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in section 136 of the Equality Act 2010, but also long established legal guidance, including by the Court of Appeal in Igen v Wong [2005] ICR 931. It has been said in the context of s.13 that a Claimant must establish something “more” than unfavourable treatment and a protected characteristic, even if that something more need not be a great deal more: Sedley LJ in Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279.[104]In Governing Body of Windsor Clive Primary School & Anor v Forsbrook & Anor [2024] EAT 183, the EAT has very recently considered the question of how tribunals should approach the question of whether unwanted conduct is “related to” a relevant protected characteristic. His Honour Judge Beard said: “29. … It is clear that “related to” is a broad concept, as set out in Haringey v O’Brien. However, the concept cannot be so broad as to be meaningless. I am of the view that, as Ms Roddick argues, the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary, therefore, for an ET to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.” The case concerned correspondence issued by the employer in the context of its attendance and wellbeing policy. HHJ Beard went on to observe: “38. It seems to me that the difficulty with the lack of reasons in respect of unwanted conduct may relate to a reluctance for the ET to describe the use of the absence process as unwanted conduct. In my judgment, properly constructed, the statute provides that unwanted conduct is based on the subjective view of the claimant. It is only in the unlikely circumstances that the “purpose” of the use of the absence procedure is to create the prohibited environment that a claim could succeed without more. In dealing with the “effect” of the conduct the claimant’s perception is subjected to the test of reasonableness pursuant s.26(4). It is through that subsection that the effect of unwanted conduct is to be viewed.”[105]As to the effect of s.26(4), in Richmond Pharmacology v Dhaliwal [2009] ICR724 it was observed, “A respondent should not be held liable merely because his conduct has had the effect of producing a prescribed consequence; it should be reasonable that that consequence has occurred… overall the criterion is objective because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example the Tribunal believes that the Claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for the Claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequence): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt… …Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[106]The Claimant complains of three matters, namely the conduct of the meeting on 10 June 2022, being placed on medical suspension on 7 July 2022 and its reimposition on or around 11 November 2022.[107]We are unclear as to which aspects of the meeting on 10 June 2022 are said to have been unwanted and to have had the defined effect upon the Claimant. Again, we cannot step into the arena. In our judgement, the essential primary facts have not been established to support a claim, including our ability to identify with clarity the precise conduct which is said to have created the prohibited environment. Paragraphs 21 and 22 of the Claimant’s witness statement do not describe any unwanted conduct related to the Claimant’s disability which violated her dignity. She perceived or came to perceive the meeting as hostile etc because she was unwell. She acknowledged to Dr Goss that she had had a meltdown (page 494), framing her conduct on 10 June 2022 in the context of a history of workplace difficulties rather than necessarily any specific unwanted conduct on the part of Ms Dudgeon during the meeting itself. In any event, we refer to our findings already in relation to the meeting and Ms Dudgeon’s conduct of it, which are unaffected by our decision that the Respondent breached its s.20 duty of adjustment in terms of how the meeting was scheduled and notified. It would be unreasonable for the Claimant to consider that her dignity had been violated or that an intimidating etc environment had been created by Ms Dudgeon on 10 June 2022 in circumstances where Ms Dudgeon had reasonably sought to speak to her about her discussion of non-work related confidential client related matters in an open office setting. If the Claimant feels that she was being accused of fraud or that it seemed like a disciplinary meeting, in our judgement that is how she has come to view the meeting rather than objectively well founded. We do not uphold her complaint.[108]As regards the medical suspension, including its reimposition, in our judgement this was plainly related to the Claimant’s disability in that her conduct on 10 June 2022, which was the manifestation of a mental health crisis she was then experiencing, caused the Respondent to believe that the Claimant was a risk to herself and to others. For the avoidance of doubt, we consider that it was reasonable for them to come to that view: her conduct was sufficiently out of the ordinary and troubling that it plainly warranted intervention, even if the immediate response on 10 June 2022 had been to permit the Claimant to remain at work rather than to insist that she go home.[109]In our judgement, it is and was unreasonable for the Claimant to consider that her dignity had been violated and that an intimidating etc environment had been created by the Respondent’s actions in medically suspending her and reactivating that suspension when it seemed likely that she would return to work in November 2022. The relevant immediate circumstances are that the Claimant had gone into an archive room on 10 June 2022 and talked to herself sufficiently loudly that she could be heard by colleagues outside the room notwithstanding she had closed the door behind her, and that she had proceeded to scream loudly for an extended period. The further relevant circumstances are that the Claimant’s colleagues reported being distressed by what had happened, and anxious about navigating what they perceived to be the Claimant’s unpredictable behaviour. The further relevant context is that the department undertakes important research and clinical trials, which sometimes involve patients coming to the department to be interviewed. The Claimant’s focus on cancer clinical trials highlights the sensitive nature of the work, and the need to maintain professional standards at all times.[110]We think the Claimant has lost sight of the reasonable needs of her colleagues and of patients, as well as the fact that the Respondent had a duty of care to her. The Claimant evidently has insight into her condition: her contact with her GP on 30 December 2021 evidences this. However, in our judgement, she is now seeking to downplay, or even deny, how she conducted herself and presented on 10 June 2022, and the impact upon her colleagues as well as the potential risk to patients. She does not seem to dispute that she wore a red coloured lanyard at work that day, which signified that she was unwell and probably should not be at work. Even if her state of mind on 10 June 2022 and in the following months was such that she does not now have clarity or recall as to how things were for her on that day, she has failed to reflect on the consistent accounts of her various colleagues and what they say was the impact of her behaviour upon them, and why therefore the Respondent might be concerned about the prospect of the Claimant returning to work in an unplanned way without there first being an assessment of her fitness to return and of any potential risks she presented either to herself or to others. Her complaints of harassment are not well founded. Unfair Dismissal[111]Section 94 of the Employment Rights Act 1996 (“ERA”) provides, 94. The right (1) An employee has the right not to be unfairly dismissed by their employer.[112]Section 95 ERA 1996 provides, 95. Circumstances in which an employee is dismissed. (1) For the purposes of this Part an employee is dismissed by his employer if … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[113]The Claimant claims that she resigned by reason of the Respondent’s conduct. The List of Issues identifies ten matters that are said to amount to a breach of the implied term of trust and confidence – see paragraph 2.2. The last in time matter is the Respondent’s alleged failure to provide a timely decision on the her appeal against the outcome of her grievance – Issue 2.2.9.[114]It is an implied term of all employment contracts that the parties will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them - Malik v Bank of Credit and Commerce International SA [1997] UKHL 23.[115]A claimant must have relied upon the conduct complained of in resigning their employment. Furthermore, it is not every breach of contract that will justify an employee resigning their employment without notice. The breach or the matters collectively complained of must be sufficiently fundamental that it or they go to the heart of the continued employment relationship. Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 reminds us that whether there has been a breach of the implied term of trust and confidence is to be assessed objectively. Kaur confirms that the ‘final straw’ need not amount to a repudiatory breach if it was part of a course of conduct comprising acts and omissions which, viewed cumulatively, amounted to a breach of the duty of trust and confidence.[116]In her letter of 5 March 2023 in which she gave notice resigning her employment, the Claimant wrote: “I am resigning in response to a serious breach of contract by my employer, and I consider myself to be constructively dismissed. I have not taken this decision lightly, considering that I have been serving as an oncology nurse in this Trust over the last seventeen years. However, I cannot continue because of the behaviour and conduct of the managers, who failed to follow the guidelines of OH doctors and making unjustifiable decision to exclude me from hospital grounds. This decision since been agreed as not appropriate or proportionate. Also, the delay overturning this decision caused tremendous injury to my feelings and was inexcusable attack on my professional competence. The above behaviours, acts of omission and ill-informed decisions making, has amounted to disability discrimination, bulling and harassment and victimisation. I have been waiting for my grievance, I have raised on 18 of July 2022, to be resolved for over seven months, however due to the unreasonable delays in delivering my grievance and appeal outcome, which I still have not received, I feel I have been left with no option but to resign. My position within the Trust has become untenable and thread to my wellbeing and constitutes constructive dismissal, as I have lost all the trust in the Organisation, its Leaders, and they ability to adhere to the Trust values. Trust states: its vales are Courage, Accountability, Compassion, Integrity, Respect. I have not been treated with professional integrity, compassion, respect, or dignity.” (page 617)[117]The starting point is the observations of Lord Denning MR, in Western Excavations (ECC) Ltd v Sharp [1977] EWCA Civ 165, including that an employee “must make up his mind soon after the conduct of which he complains: for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”. However, his often cited comments, particularly as to the effect of any delay, have been developed in subsequent authorities, notably Bashir v Brillo Manufacturing Co [1979] IRLR 295, W. E. Cox Toner (International) Ltd. v Crook [1981] ICR 823, Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121; [2010] ICR 908; and Chindove v William Morrisons Supermarkets Plc, UKEAT/0201/13. The principles have recently been reviewed by the EAT in Brooks v Brooks Leisure Employment Services Ltd [2023] EAT 137 and in Leaney v Loughborough University [2023] EAT 155.[118]Even if she were to establish the matters referred to in paragraphs 2.2.1 to 2.27 of the List of Issues, in our judgement the Claimant did not resign in response to any of those matters. Her letter of resignation was a carefully crafted document. It evidences reflection on her part rather than a hasty decision to resign, and her given reasons for resigning were reiterated a few days later on 10 March in an email to Ms Faulkner in response to Ms Faulkner’s letter of 8 March 2023 in which she had expressed a wish to meet with the Claimant to discuss her concerns and consider how the Trust could best support the Claimant to remain in employment.[119]Nevertheless, for the sake of completeness and in summary:[120]The Respondent acknowledged that there were delays after June 2022 in securing equipment. Those delays occurred when the Claimant was absent on sick leave and she would therefore have been unaffected by the ongoing delay, as she acknowledged to Ms Faulkner (page 383). Prior to June 2022 the Claimant must accept her own responsibility in the matter, including failing to follow up on discussions and, in particular, completing the DSE self-assessment but then placing it in her drawer at work. In our judgement any miscommunication or delays on the Respondent’s side cannot be said to have been destructive of trust and confidence. Issues 2.2.2 and 2.2.3[121]We cannot identify any relevant failure to implement the Wellness Action Plan. As we have noted already, the meeting on 10 June 2022 was planned in advance even if the Respondent failed in its s.20 duty. That breach or any other alleged failure by it to make adjustments, including permitting the Claimant a companion, was not part of the Claimant’s decision to resign her employment.[122]It is entirely unclear what this relates to, i.e. when the Respondent is alleged to have failed to use clear and unambiguous communication and why this may have breached trust and confidence. There is no reference to it in the Claimant’s resignation or follow up email of 10 March 2023 to Ms Faulkner.[123]As we say, we have accepted Ms Dudgeon’s account of the meeting of 14 January 2022. She handled the situation entirely appropriately, i.e. with reasonable and proper cause. Her conduct on 14 January 2022 was not destructive of trust and confidence.[124]Team members and managers were apprised of the Claimant’s challenges and the symptoms of her impairment, as the lanyard email of 10 November 2021 evidences. The extensive correspondence and other documents regarding the Respondent’s management of the Claimant’s sickness absences, and indeed its tolerance of a very high level of absence over a period of five years, points to significant understanding on its part. In light of the Claimant’s behaviour on 10 June 2022, training and one to one sessions were provided to staff. Ms Dudgeon met with Dr Hallas and as Dr Hallas said, she evidenced great regard for the Claimant’s wellbeing and mental health. We concur with those observations, even if there was an isolated failure in relation to the 10 June 2022 meeting. The Claimant must accept that it was her decision not to meet with Dr Hallas and Ms Dudgeon and to decline the opportunity of a round table discussion, both of which might have built knowledge and understanding at an earlier opportunity.[125]From a very early stage in their discussion of reasonable adjustments with the Claimant, the Respondent offered the Claimant some degree of flexibility in start and finish times and the option to take a longer lunch break to facilitate some time away from the department. It was documented within the Wellness Action Plan that the Respondent would contact the Claimant’s husband if early warning signs were noticed. The Claimant does not identify any occasion when she was denied a break or could not attend a safe place. Indeed, the events of 10 June 2022 evidence that strategy in action; the Claimant took herself off to the archive room and was left alone given her evident distress.[126]Turning then to the three issues that fall to be considered in relation to the Claimant’s claim that she was constructively dismissed: Issues 2.2.8 and 2.2.10[127]These issues are closely related. Although it is not clear on the face of the List of Issues, the complaint that the Respondent failed to allow the Claimant to work remotely and/or temporarily redeploy her pending the outcome of her occupational health assessment relates to the two periods when she was medically suspended, as well as the intervening period when she was on sick leave. That much is clear from the Claimant’s email to Ms Faulkner of 10 March 2023 in which she complained that the decision to medically suspend her had been taken without a medical assessment. We cannot usefully add to what we have said already when addressing this matter as a complaint of harassment. The Respondent acted with reasonable and proper cause, such that the Malik implied term was not breached.[128]The delay is identified as the time taken for decision on the grievance / grievance appeal following its submission on 4 September 2022. That is not how the matter was put by the Claimant when she resigned. Whilst she said that the matter had been outstanding for seven months, it was the delay in delivering the outcome that she described as unreasonable and which she said had left her with no option but to resign. She effectively reiterated this to Ms Faulkner on 10 March 2022. For completeness, looked at objectively, the Respondent did not breach trust and confidence insofar as Ms McKee’s investigation report took a little over 14 weeks. It was a complex matter that generated a significant volume of material, as the length of the report and appendices attest to. As we have noted already in our findings, there was at least a three week delay due to the Claimant’s health issues and the unavailability of her union representative and other delays due to others’ sickness and injury. There was, of course, the Christmas holiday period to factor in. If the Claimant was frustrated by these delays, they were not unreasonable and certainly were not destructive of trust and confidence.[129]What then of Ms Massey’s actions in the matter? There was undoubtedly some element of delay, but looked at objectively, she did not act without reasonable and proper cause in the matter. She kept the Claimant informed throughout. With all due respect to Ms McKee, who was particularly thorough in her approach, her investigation report is not necessarily an easy read and we can well understand therefore why Ms Massey needed additional time to get to grips with it. She cannot reasonably be criticised for her own inexperience in the matter, otherwise employers could never entrust grievances to those with no or limited prior experience. This is not a case where it would or should have been apparent to the Respondent from the outset that a more experienced case manager was required. In any event, there is no legal complaint in respect of Ms Massey’s decision itself, or indeed the investigation report on which it was based. The delay complained of was relatively limited. Ms Massey was in receipt of the investigation report on 13 January 2023. She sought to manage the Claimant’s expectations and even then the Claimant misconstrued what she said as a firm commitment to give her a decision by 20 February 2023. Ms Massey was open with the Claimant that she would look to HR to review the outcome before it was issued. The Claimant was herself on leave between 9 February and 1 March 2023. Even if Ms Massey was mistaken in thinking she would not be back from leave until 6 March 2023, the Claimant knew that this was her understanding in the matter and that she was awaiting the Claimant’s return from leave to set up a meeting with Ms Faulkner to convey the outcome. It does not matter that the outcome was subsequently further delayed, since at the point that the Claimant resigned her employment she had been told that the outcome was imminent; the only issue that required further consideration at the point the Claimant resigned her employment was the Claimant’s objection to the outcome being delivered by Ms Faulkner, something the Claimant had raised belatedly on 5 March 2023. She was informed at 8:06am on 6 March 2023 that her concerns in relation to this aspect would be discussed by Ms Massey with Ms Gardner. In our judgement, the Claimant resigned prematurely in circumstances where, looked at objectively, the Respondent had not given her grounds to do so. It had not breached trust and confidence and Ms Massey’s actions were not part of a course of conduct comprising acts and omissions which, viewed cumulatively, amounted to a breach of the duty of trust and confidence.[130]Given that the Claimant was not constructively dismissed, her unfair dismissal complaint cannot succeed. Approved by: