Miss J Carey v Department for Work and Pensions and Others: 3313724/2022 and 3313752/2022

EMPLOYMENT TRIBUNALS

Case No 3313724/2022, 3313752/2022

Between

Miss J CareyClaimant

Department for Work and Pensions and OthersRespondent

Before

Employment Judge Hyams

Members

Mrs J Costley

Mr L Hoey

In person for claimant

Date 13 August 2025

REASONS

[1]By an ET1 claim form presented on 23 November 2022 and in effect re-presented on the following day, the claimant claimed (as stated in paragraph 1 of the details of the second of those claims; the paragraph was at page 51 of the hearing bundle; any reference below to a page is, unless otherwise stated, a reference to a page of that bundle) that she had been “[subjected to] Disability Discrimination, harassment, victimisation, and Failure to Make Reasonable Adjustments under the Equality Act 2010. I was subjected to a long campaign asking for the Continuity of a specific and targeted reasonable adjustment under the Equality Act 2010 (sustained enough for me to retain employment) as a result suffered a detriment causing re-occurrence of psychological triggers from December 2020. Events of the same issue that amounted to 21 July Grievance 2022.”

[2]After a preliminary hearing conducted by Employment Judge (“EJ”) Cowen on 26 April 2024, the issues were stated in the document at pages 312-321. We saw that it was stated on page 318 that the respondent accepted that the claimant “was disabled with PTSD, anxiety and depression throughout her employment.” We agreed at the start of the hearing before us to determine the question of liability first. The liability issues were stated in the following terms on the following pages (319-320) of the bundle. ‘2. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)2.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

2.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 2.2.1 Staff were to return to work from the office after June 2022

2.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the Claimant required reasonable adjustments for her disability and could not work from the office?

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

2.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:2.5.1 The Claimant should not have been asked to return to the office

2.5.2 The Claimant should not have been asked to attend a stage 2 meeting on 8 July 2022,

2.5.3 The Claimant should have been allowed to continue to work from home without any process being applied.

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

2.7 Did the respondent fail to take those steps?

[3]Harassment related to disability and/or sex (Equality Act 2010 section 26)3.1 Did the Fourth Respondent do the following things on 5 August 2022: 3.1.1 Say to the Claimant with reference to her ‘smooth rusty voice’;

3.1.1.1 “there is money to be made from being a sex worker”

3.1.1.2 “you should consider that Julia as seriously there is money to be made”.

3.2 If so, was that unwanted conduct?

3.3 Did it relate to disability?

3.4 Alternatively was it of a sexual nature?

3.5 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

3.6 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Victimisation (Equality Act 2010 section 27)4.1 Did the claimant do a protected act as follows: 4.1.1 Issue a grievance about the Second Respondent in December 2021 with regard to harassment related to disability?

4.2 Did the respondent do the following things: 4.2.1 Lock the Claimant out of her caseload for 2 days on 11 May

4.3 By doing so, did it subject the claimant to detriment?

4.4 If so, was it because the claimant did a protected act?

4.5 Was it because the respondent believed the claimant had done, or might do, a protected act?’ 3 At the hearing of 26 April 2024, EJ Cowen permitted the claimant to amend her claim by the addition of the claim of harassment within the meaning of section 26 of the EqA 2010 stated in paragraph 3 of the above extract from EJ Cowen’s record of the hearing (which, we saw, the claimant said in the document in which the application to amend was first made, which was dated 12 February 2023 and was at pages 128-129, concerned “Jokes about [her] Voice related to a sexual comment”), and to add Ms Washington as the fourth respondent. The reasons for doing the latter were recorded by EJ Cowen to have been given orally, and there was no written record of those reasons. The claimant asserted to us that one of the effects of the order permitting her to add Ms Washington as a respondent was that the issue of whether or not the claim against Ms Washington was in time had been determined. Mr Crammond contested that proposition vigorously (but courteously; we were grateful for the courteous manner in which Mr Crammond, Mr Perry and the claimant pursued their cases before us), but in the event, we did not need to decide whether the claim against Ms Washington was within our jurisdiction (either because it was made within the primary time limit or, if not, because it was just and equitable to extend time for the making of the claim). That was because we found the claim not to have been well-founded on the facts. The evidence before us 4 We had before us the hearing bundle to which we refer above. It had 1306 pages including its index. We also had before us several emails which the claimant put before us and the respondent during the hearing to which there was no objection and which we admitted on the basis that it was helpful for us to take them into account. We heard oral evidence from the claimant on her own account and from the following witnesses for the respondents: 4.1 Mrs Chandni Madhani, who was the claimant’s line manager for a short period of time until about early January 2021 and who then managed the claimant’s line manager; she gave evidence for the first respondent and (implicitly, if not explicitly) on her own behalf, as she was the second respondent; 4.2 Mrs Rachel Wilkinson (née Mellors), who was at the relevant times the claimant’s line manager; she gave evidence for the first respondent and on her own behalf, as she was the third respondent; 4.3 Ms Louise Hall, who was at the material time employed by the first respondent as “a Support Operational Leader for the Berkshire Buckinghamshire and Oxfordshire district (Grade 7)” (that being her own description in paragraph 5 of her witness statement); she dealt with a grievance raised by the claimant about some of the matters which are the subject of these proceedings; and 4.4 Ms Fiona Washington, who was at the material time a Work Coach Team Leader at the High Wycombe Job Centre Plus, at which the claimant was employed to work. Ms Washington did not have any direct line management responsibilities in regard to the claimant but was employed as a Higher Executive Officer and was therefore employed at the same level as the claimant’s line manager. Ms Washington gave evidence on her own behalf, as she was the fourth respondent. Relevant statutory and case law The relevant principles in, and the relevant case law concerning, the EqA 2010 Harassment

[5]Section 26 of the EqA 2010 provides: “(1) A person(a) (A) harasses another

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

[6]The provisions of section 26 of the EqA 2010 have been considered by appellate courts on a number of occasions in helpful ways, including(1) by the Employment Appeal Tribunal in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

and

(2) by the Court of Appeal in Land Registry v Grant (Equality and Human Rights Commission intervening)

[2011] ICR 1390

, where Elias LJ said in relation to the claimed harassment in that case: “[The claimed] effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[7]In paragraph 22 of Dhaliwal, the Employment Appeal Tribunal (Underhill P presiding) said this: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. 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.”

[8]In Betsi Cadwaladr University Health Board v Hughes (unreported;

UKEAT/0179/13/JOJ

, 28 February 2014), the Employment Appeal Tribunal (Langstaff P presiding) said this in paragraphs 12 and 13 of its judgment having just set out paragraph 22 of the judgment in Dhaliwal: ‘12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.

[13]It was agreed, too, that context was very important in determining the question of environment and effect. Thus, as Elias LJ said in Grant, context is important. As this Tribunal said, in Warby v Wunda Group plc, UKEAT 0434/11, 27 January 2012: “…we accept that the cases require a Tribunal to have regard to context. Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a Tribunal, in our view, is not obliged to do so. The words are to be seen in context;”.’ 9 Dhaliwal is authority for the proposition that the intent of the impugned conduct is relevant. That was said at the end of the following passage in the judgment of that case, the whole of which (including the footnotes, which we have integrated into the text by inserting them in square brackets and putting them into italics) was in our view helpful: ‘14. Secondly, it is important to note the formal breakdown of “element (2)” into two alternative bases of liability—”purpose” and “effect”. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so) [Those alternative forms of liability could be described, from the perpetrator’s point of view, as “objective” and “subjective”; but using that terminology risks confusion with the separate question whether the effect on the victim should be judged “subjectively” or “objectively”—as to which, see para 15.]. It might be thought that successful claims of the latter kind will be rare, since in a case where the respondent has intended [We use “intend” as the equivalent verb to the noun “purpose” used in the statute: “purpose” as a verb has an archaic ring. In this context at least there is no real difference between the terms “purpose” and “intention”.] to bring about the proscribed consequences, and his conduct has had a sufficient impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent’s purpose (though that does not necessarily exclude consideration of the respondent’s mental processes because of “element (3)” as discussed below).

[15]Thirdly, although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase “having regard to … the perception of that other person” was liable to cause confusion and to lead tribunals to apply a “subjective” test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but 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 a 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 consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. [This is not to reintroduce a requirement of “purpose” by the back door: the point is not that the perpetrator cannot be liable unless he intended to cause offence but rather that, if he evidently did not intend to, it may not be reasonable for the claimant to have taken offence.]’ Claims made under sections 20 and 21 of the EqA 2010 of a failure to make a “reasonable adjustment” 10 An obligation to make a reasonable adjustment occurs where a provision, criterion or practice (“PCP”) is applied which “puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.” There is then a duty “to take such steps as it is reasonable to have to take to avoid the disadvantage”. Whether or not it would have been reasonable to make the adjustment sought is a matter for the tribunal to determine, taking an objective approach, and is not to be determined by reference to the “range of reasonable responses of a reasonable employer” approach applicable in the law of unfair dismissal: Smith v Churchill Stairlifts plc

[2006] ICR 524

. As a result of paragraph 20 of Schedule 8 to the EqA 2010, no duty to make an adjustment under sections 20 and 21 of the EqA 2010 arises if the employer “does not know, and could not reasonably be expected to know [that the claimant] has a disability and is likely to be placed at” the relevant disadvantage in the circumstances in question. Victimisation 11 Section 27 of the EqA 2010 provides: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because– (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act– (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.” 12 Proving a person’s motivation is usually difficult, for obvious reasons. That is why section 136 of the EqA 2010 was enacted. It provides: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” 13 When applying section 136, it is possible, when considering whether or not there are facts from which it would be possible to draw the inference that the respondent did what is alleged to have been less favourable treatment because of a protected characteristic or because the claimant has done a protected act within the meaning of section 27 of the EqA 2010, to take into account the respondent’s evidence about, but not its explanation for, the treatment. That is clear from paragraphs 19-47 of the judgment of Leggatt JSC (with which Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblin agreed) in the Supreme Court in Efobi v Royal Mail Group Ltd

[2021] UKSC 33

[2021] ICR 1263

. 14 However, as the House of Lords said in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, in some cases the best way to approach the question whether or not there has been for example direct discrimination within the meaning of section 13 of the EqA 2010 is by asking what was the reason why the conduct or omission in question occurred. 15 If there is no evidence from which the inference could be drawn that a claimant’s treatment was to any extent because of a protected characteristic or (as the case may be) a protected act, then the claim of direct discrimination or victimisation is likely, if not very likely, to fail. The assessment of oral evidence

[16]We found what Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Ltd

[2013] EWHC 3560 (Comm)

concerning the approach to take when assessing the weight of oral evidence to be of considerable importance in the resolution of the factual disputes here. It is this: “15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. 16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17]Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18]Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19]The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20]Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21]It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

[22]In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” The facts as found by us 17 Having heard the oral evidence and considered the documents to which we refer in paragraph 4 above, and having heard submissions from the claimant and on behalf of the respondents, we made the following findings of fact. The claimant’s role 18 The claimant started working for the first respondent as an agency worker in June 2020. At that time, the claimant’s role was “Case Manager” in relation to the administering of the state benefit by the name of universal credit. On 30 November 2020, the claimant was employed by the first respondent, under a contract of employment, to be a “Work Coach”, also in relation to the administering of the benefit of universal credit. The claimant’s disabilities and the evidence before us about the impact of those disabilities 19 There was in the bundle before us no medical evidence about the claimant’s claimed disabilities as such. That was probably because the respondent had (as we say in paragraph 2 above) accepted that the claimant “was disabled with PTSD [i.e. post-traumatic stress disorder], anxiety and depression throughout her employment.” The claimant told us that her PTSD had arisen from something which occurred at work in 2017, which of course was before she started to work for the respondent. In any event, we had before us only the claimant’s evidence about the effect on her of her mental ill-health, and(1) several occupational health reports which had been procured by the respondent in relation to the claimant and

(2) a number of “fit notes” procured by the claimant from her GP (i.e. her general medical practitioner). Such reports and notes relied on what the claimant had told the person making the report or completing the note in question. 20 The claimant’s submissions to us relied implicitly on the proposition that a GP’s “fit note” stating that working from home was a reasonable adjustment meant that an employer could not, without breaching the EqA 2010, require the employee to work at the employer’s physical workplace. As EJ Hyams pointed out during the hearing, that was patently not correct, as shown, if nothing else, by the fit note’s standard wording. By way of example, we now refer to the wording of the notes at pages 964 and 965, dated respectively 7 April 2022 and 21 June 2022. They were in standard form. That was clear from the opening words at the top of the left hand side of the document, which was in the form of two pages. Those opening words were (in bold font; any bold font in any quotation below is original): “Statement of Fitness for Work For social security or Statutory Sick Pay”. 21 There was a box under that heading in which the patient’s medical condition was required to be set out. The “fit note” had two boxes stating what might enable an employee who would otherwise be unable to work, to work. In the first box, there were two “tick boxes” next to the words “I advise you that:”. The first tick box was followed by the words “you are not fit for work”, and the second tick box was followed by the words “you may be fit for work taking account of the following advice”. In the box below the latter, there were these opening words: “If available, and with your employer’s agreement, you may benefit from:”. 22 There were below those words four tick boxes, for, respectively, the following possibilities:

22.1 “a phased return to work”

22.2 “amended duties”

22.3 “altered hours”, and

22.4 “workplace adaptations”.

[23]Under those four tick boxes, there were these words. “Comments, including functional effects of your condition(s):”.

[24]Under the box containing those words, there was another box, for the time period of the fit note, next to the words “This will be the case for”.

[25]On the right hand side of the form, in what could be regarded as its second page, there were these words. “What your doctor’s advice means ‘You are not fit for work’: Your health condition means that you may not be able to work for the period shown. You can go back to work as soon as you feel able to and, with your employer’s agreement, this may be before your fit note runs out. ‘You may be fit for work’: You could go back to work with the support of your employer. Sometimes your employer cannot give you the support you need and if this happens your employer will treat this form as though you are ‘not fit for work’.” The contents of the relevant completed fit notes before us

[26]On 21 December 2021, the claimant’s GP compiled the fit note in the second half of page 963. The claimant’s condition was stated in that fit note to be “Anxiety state and Depression”, and the claimant was stated to have been advised that she “may be fit for work taking account of the following advice”, namely that “If available, and with your employer’s agreement, you may benefit from”(1) “amended duties”, and

(2) “workplace adaptations”, which were described under the heading “Comments, including functional effects of your condition(s):” in these words: “reasonable adjustments- working from home”.

[27]The period of that fit note was stated to be “6 months”.

[28]The condition stated in the fit notes at pages 964 and 965 was not the same as those words. On page 964 it was said to be “PTSD with generalised anxiety disorder”, and on page 965 it was “Anxiety, PTSD”.

[29]On 7 April 2022, in the fit note at page 964, the claimant was stated to be unfit for work until 29 April 2022.

[30]On 21 June 2022, in the fit note at page 965, the claimant was advised that she “may be fit for work taking account of the following advice”, namely that “If available, and with your employer’s agreement, you may benefit from”(1) “amended duties”,

(2) “altered hours”, and

(3) “workplace adaptations”, which were described under the heading “Comments, including functional effects of your condition(s):” in these words: “awaiting mental health specialist treatment- psychological therapy sessions main adjustments- working from home”. A chronological statement of relevant events

Introduction

[31]We accepted Mrs Wilkinson’s evidence about what occurred after 29 April 2022. It was in paragraphs 7-19 of her witness statement. We return to the events described (somewhat briefly) by Mrs Wilkinson in paragraph 20 of her witness statement in paragraphs 48 and 49 below, where we set out in detail the documentary evidence before us relating to the events of 5 August 2022 which were the subject of the claim of harassment (which added materially to what was in paragraph 20 of Mrs Wilkinson’s witness statement).

[32]With one exception, we also accepted the evidence of Mrs Madhani about the relevant events. That was in paragraphs 5-35 of her witness statement. The exception is that Mrs Madhani was wrong to say in paragraph 19 that there was in place a fit note “saying she may be fit to work with an adjustment to work from home for 6 months (this expired at the end of June 2022).” The error was that the fit note in question was at page 963 and ended (see paragraphs 26 and 27 above) on 20 June 2022. The claimant submitted that Mrs Madhani had “lied” in stating that the fit note expired at the end of June 2022, and that, therefore, her (the claimant’s) case should succeed. We found the error to be inadvertent and in any event it was in the circumstances immaterial. In fact, the error was patent, in that in paragraph 19 of her witness statement, Mrs Madhani said that the claimant had on 21 December 2021 “submitted a fit note saying she may be fit to work with an adjustment to work from home for 6 months”, and self-evidently that fit note was going to expire on 20 June 2022. In addition, in paragraph 30 of her witness statement, Mrs Madhani said this (which was completely accurate): “I was aware that the Claimant had a fit note to work from home which expired in June 2022. I had a conversation with Ms Mellors after the fit note expired to discuss the next steps.”

[33]The claimant’s evidence was mainly given orally. She put before us a document which she described as a witness statement, but it was largely in the form of a skeleton argument, referring so far as the evidence was concerned for the most part to documents in the hearing bundle. The claimed “locking out” of the claimant from her case load on 11 May 2022 for two days

[34]In paragraphs 21-28 of her witness statement (which, as we say in paragraph 32 above, we accepted), Mrs Madhani said this. “Allegation regarding Claimant’s workload - May 11 202221. In around May 2022, the Aylesbury job centre had seen a number of employees leave meaning that additional resource was required. My Line manager Donna Cox was responsible for a cluster of four Job Centres including Aylesbury and High Wycombe. In assessing what resources were needed, it was considered necessary to review the work being undertaken by work coaches across the cluster to see where there might be capacity so we could look to reallocate existing resources as required in order to meet customer needs. In particular we needed more support around first commitment appointments (without which benefit claimants could not receive any benefits).

22. On a daily basis, I would take a look at the diaries of the Work Coaches. We had a priority ladder of the types of Claimant we needed to see and I needed to ensure that the leadership team (the HEOs) were ensuring the diaries of Work Coaches were full of the right type of appointments. This involved looking at the team’s calendar and looking at a couple of individual work coach calendars as a ‘dip-test’.

23. I understand Claimant’s general caseload at the time consisted of benefits claimants on the ‘Work Prep’ and ‘WFI’ regimens. Broadly speaking this is benefits claimants who are not immediately ready for work (e.g. due to health reasons). At the time, we were prioritising seeing claimants who were on the intensive work search (IWS) regime who were essentially ready for work as soon as possible. It was the DWP’s priority after covid to see as many of these IWS customers as possible and this took place in face-to-face meetings. The Claimant didn’t see IWS or face-to-face customers at the time as an adjustment due to her health conditions.

24. On 10 May 2022 I noticed the Claimant’s diary was completely empty for the whole of this week and next week. I questioned this with her Work Coach Team Leader (i.e. her line manager and HEO) Rachel Mellors and I was told the Claimant had just started filling her diary from yesterday. On 11th May 2022 the Claimant’s diary was still in the same situation. I was told she was looking at her caseload and starting to book claimants in.

25. As Aylesbury were struggling for diary capacity, I asked Rachel Mellors if the Claimant was able to support virtually with a phone diary. Ms Mellors said the Claimant could not do 10 minute appointments and so I suggested 50 minute first commitment appointments. Ms Mellors said she would talk to the Claimant about this proposal. Ms Mellors confirmed to me that the Claimant would support Aylesbury and she had discussed a diary pattern that fit with her. I asked Ms Mellors to speak to Shola (An HEO at Aylesbury) who was covering for Emma Duthie (my equivalent for Aylesbury) to update them. I made a note of this at the time by email (see page 694).

26. At that point Tracey Rogers the Claimant’s union representative contacted our fair treatment ambassador, Linda Evans as the claimant was very upset and didn’t want to speak to her line manager. I emailed HR at the time to seek guidance (see my email at page 711).

27. In light of the Claimant being upset, the proposal that she support Aylesbury was not taken forward and she continued doing her normal caseload.

28. I understand that the Claimant alleges that I locked the claimant out of her caseload for 2 days on 11 May 2022 (or instructed Rachel Mellors to do so) due to me being unhappy with the Grievance brought against me in December 2021 (Grievance 1). This is simply not true. The discussion I had with Rachel in relation to the Claimant’s workload was prompted entirely by the fact we had limited resources at Aylesbury following staff leaving and my subsequent exploration of the workload levels of work coaches (and noticing that the claimant’s diary appeared to have no appointments). The response I got from Ms Mellors was that the claimant had agreed to this but as soon as I was aware she had an issue with the proposal it was halted.”

[35]The claimant accepted that Mrs Wilkinson merely did what she was asked by Mrs Madhani to do in the manner described in that passage of Mrs Madhani’s witness statement, and so did we. The events relating to the possibility of the claimant returning to work at the respondent’s High Wycombe Jobcentre

[36]In paragraph 7 of her witness statement (which the claimant did not challenge and which, as we say in paragraph 32 above, we accepted), Mrs Madhani said that when the claimant “first started her role as a Work Coach she was working in the office”. As Mrs Madhani said in paragraph 29 of that witness statement, “By spring 2022 all work coaches were expected to be back in the office. The work coach role is an office-based role. The role is to see benefits claimants and it is important that these appointments take place face-toface.”

[37]In paragraph 15 of her witness statement (which, as we say in paragraph 31 above, we accepted), Mrs Wilkinson said this. “In around June 2022, there was a push to get staff back into the Job Centres so normal face-to-face service could resume. At the time many were still working from home after Covid. The Work Coach role involves seeing a range of benefit claimants and the most effective way is face-toface.”

[38]Mrs Wilkinson’s witness statement continued (in the next paragraph of it): “At the time, the Claimant was working from home and it was not clear when she would be returning. However, her fit note recommending working from home was shortly due to expire. I therefore held a one-to-one meeting with the Claimant under Step 1 of the ‘five steps for managing non-attendance in the workplace’ policy (the policy is at pages 440 to 445 and my note of the meeting is at page 749). I noted that the Job Centres were moving back to business as usual after covid and we were wanting staff to return to the office to support claimants. The Claimant indicated that she was not comfortable back in the office and she would be speaking to her GP to get a further fit note extending her working from home. I asked if there was any support I could offer to help her return to the office and she confirmed there was not.”

[39]The document at pages 440-445 had at its start these words. “On this page, you’ll find five steps to follow in instances where colleagues are finding it challenging to meet the minimum requirements for their role, when it comes to fulfilling either a workplace-based, hybrid or mobile role. Note, any application for full-time home working under the flexible working regulations or as a disability reasonable adjustment must be decided before managers have recourse to this procedure.”

[40]Mrs Wilkinson’s note at pages 749-750 not only stated what had happened on 9 June 2022, but also the written advice of a “CS Caseworker” which she was given on 20 June 2022. On page 750 the advice was to follow “the guidance found here in respect of the next steps Additional Support for Colleagues Unable to Return to the Workplace | DWP Intranet.” The advice of the CS Caseworker included these words on page 750: “The MOS has a fit note from the doctor currently until 30/5/22 recommending as a reasonable adjustment to work from home. MOS is going to ask the doctor for a further fit note.” The first of those two sentences was of course inaccurate, as the date of the expiry of the fit note at page 963 was 20 June 2022. More importantly, the advice on page 750 ended with these words: “I would advise discussing the case further with your HRBP who in turn can refer the case through to the casework team via the dedicated inbox which is referred to in the guidance.”

[41]Mrs Wilkinson’s written evidence on this aspect of the matter ended with the following three paragraphs of her witness statement. “17. I gave her [i.e. the claimant] 10 days to let me know if there was anything she wanted to add or to confirm her position. I recall speaking to her again around 10 days later and the position had not changed. I then spoke to an HR caseworker (and the summary of the advice I received was at page 749 to 750). Around the same time, I was informed that the claimant had a further fit note for 6 months to work from home and I updated Chandni about this (see page 765).18. I understand Chandni was then progressing to step 2 of the ‘five steps for managing non-attendance in the workplace’. However, when I returned from holiday on around 19 or 20 July 2022, I was told the step 2 meeting had not taken place.

19. In light of having a new fit note regarding working from home, I scheduled a further review of the Claimant’s workplace assessment passport. This took place on 26 July 2022 (see the notes in the passport at pages 865 to 871). As the Claimant had a further 6 month fit note until December 2022 it was agreed home-working could be supported for that time.”

[42]The first two steps of the 5-step procedure for managing absences from work at pages 440-445 were stated to be, respectively,(1) a “reframing conversation”, to be held by the employee’s line manager, and

(2) a “follow-up conversation” to be held by “the countersigning manager”, which meant the line manager’s countersigning manager. In this case the countersigning manager was Mrs Madhani. In the following paragraphs of her witness statement (which, as we say in paragraph 32 above, we accepted), Mrs Madhani described what occurred. Her references there to a “WAP” were to a “workplace adjustments passport”. “32. Because there hadn’t been any progress at stage 1, Ms Mellors referred it to me. I therefore invited the Claimant to a Step 2 meeting to explore what barriers the claimant was facing and see what we could do to support a return to the office. 33. I sent the invite on 4 July for the meeting to take place on 8th July. When I sent the invite, I had checked that step 1 had been done but I was not aware specifically of what had or had not been reviewed in relation to the claimant’s WAP. However, my understanding was that I could discuss any relevant points relating to the Claimant’s WAP with the Claimant at the step 2 meeting. 34. When I sent the step 2 meeting invite to the claimant, I was not aware of the recommendation in the appeal outcome for Grievance 1 for any proposed changes to her working arrangements to be discussed with the claimant’s union representative in the first instance. After I sent the invite, the district manager Shane Frost called me and explained the recommendation from the grievance to discuss any potential changes with the union representative. I asked Shane what he wanted me to do and he confirmed I should cancel the Step 2 meeting which I did and I called the union representative to explain what had happened. I asked the union representative to inform the claimant the meeting had been cancelled. 35. I understand that the Claimant suggests in her claim that she should have been allowed to work from home indefinitely without any procedure being in place, however, the procedures are there to provide a framework for discussions which look at the nature of the work the employee is employed to do and which look to balance the needs of the organisation and the needs of the employee. I therefore felt it was important to follow the procedure which is why I initially invited her to the step 2 meeting.”

[43]The invitation to the step 2 meeting was, however, made via the claimant’s electronic diary, and was for a “Return to work 1-2-1 conversation Chandni/Julia”, as could be seen from the invitation of 4 July 2022 for a meeting on 8 July 2022, at page 790.

[44]The claimant was, we thought, unlikely to have been misled by that description of the purpose of the meeting, since(1) she was at work on 4 July 2022,

(2) Mrs Madhani was not her line manager, and

(3) a return to work meeting would normally be conducted by a line manager. In any event, the claimant has since 4 July 2022 been permitted to work from home exclusively.

[45]The first time it was said by the claimant’s GP that it might be a reasonable adjustment to work from home was in the fit note at pages 963 (and 1220), dated 21 December 2021, to which we refer in paragraph 26 above. The events of 5 August 2022

[46]For the reasons stated in the following paragraphs below, we made the following findings of fact about the meeting of 5 August 2022 which was the subject of the issues stated in paragraph 3 of the extract from the list of issues set out in paragraph 2 above.46.1 The meeting was of the members of the High Wycombe Jobcentre Plus team who were working that day.

46.2 It was conducted by being held in person for those who were working at the Jobcentre in person that day, and via Teams for those who were working at home.

46.3 There were between 15 and 20 people present in person, and 5 who were working from home that day. The claimant was one of those who joined the meeting via Teams.

46.4 The conduit for Teams was the Microsoft Surface Pro tablet computer (i.e. the type with a physically detached but digitally-linked keyboard) of Ms Washington. The only means by which what was said by a person who was present only by Teams could be heard was via the built-in loudspeaker of that Surface Pro. Equally, anyone present via Teams only, such as the claimant, could see only what was shown by the camera on the Surface Pro and could hear only what was picked up by the microphone on the Surface Pro.

46.5 When the claimant joined the meeting, she apologised “if she sounded a bit funny” as “she sounded hoarse” because, she said, she was “not well and had put eye drops/ear drops in” (we take the quoted words from the interview notes of Ms Annisa Steel at page 1061, to which we return below; the notes were created in the course of an investigation carried out by Ms Lisa Woods into the claimant’s grievance of 18 August 2022 to which we refer in paragraph 53 below, and the interview occurred on 13 October 2022).

46.6 Someone present physically at the meeting said something in response. Whatever it was, it did not contain any express reference to the claimant being able to make money from her voice by working as a sex worker. It was, however, to the effect that the claimant could make money from speaking in the manner in which she had just spoken.

46.7 The claimant did not respond to that comment. No one laughed at it. And no one asserted expressly in any way that it was inappropriate. The reasons why we came to the factual conclusions stated in paragraph 46 above 47 5 August 2022 was a Friday. The next relevant event was that the claimant sent an email to Mrs Wilkinson. The email was sent on the following Tuesday, 9 August 2022. It was at pages 890-891 and was sent at 14:39. It was in these terms. ‘Dear Rachel, I would like to make an complaint about the treatment that I received joining the All staff meeting on Friday 5 August 2022. Where I was told that (because of the treatment I am taking), my voice husky and smooth. To then add the assumption and association of being a Sex Worker. I looked around the room and deliberately called out each and every person saying hello, hoping really for someone to say someone. The Comment added to say “You know Julia you can make money out of that, there is good money to be made”. I know that all the managers including yourself were at the meeting and those that were working from home on the Team Chat. I cannot feel much as I a very numb at the moment and am crying each day. I was equally surprised that SJ had the same voice from illness and no-one insulted her – rather say get better. SJ does not share the same protected characteristic as myself Race, Disability. Impact I am feeling that I do not deserve this as I am a work coach and not a sex worker to earn money. The audience mostly men were laughing and I was humiliated being on a camera setting having suggestions to make money from my voice. I am deeply disappointment that I was attacked in this way. As you are aware I am having counselling coping with Trauma PTSD. This incident is so serious and looking at the objective today – encouraging people to talk to one other when you get offended is something I would like you to check. What is the process please?’

[48]The next thing that happened was that Mrs Wilkinson (who either was not present at the meeting of 5 August 2022 at the time that the alleged comment was made, or she was present and heard nothing relevant) “raised [the complaint] at a team meeting”, as was recorded in the notes of the interview of her carried out by Ms Woods on 30 September 2022 of which there was a copy at pages 1059-1060. We could see from the paragraph of those notes from which we take those comments that Mrs Wilkinson (who is referred to in the notes as “RM”) expressly referred to the claimant’s complaint that it had been suggested expressly at the meeting of 5 August 2022 that she could make money by working as a sex worker. The whole of that paragraph is at the start of the following passage at pages 1059-1060, which is the final part of the notes. “RM: First I knew was on the 9/8/22 it was raised at a team meeting, the comment was made about the sex worker bit and the team all seemed confused. So I called her, she referred to SJ as well, I made the comment about feeling better. LW: Was reference to another colleague about gruff voice? RM: Yes that was SJ. SJ came onto the call- she had been off with covid, I said feeling better as still sound gruff. LW: So conversation had already happened when you joined, were you aware of any comeents? RM: Julia went off poorly for a few days, I had a chat with Donna and she asked me to check if anyone had heard anything. Anissa steel- I spoke to her to see if she had heard anything. LW: What role does Anissa do? RM: JCSM LW: Did she say she had heard anything about the comment or anyone else? RM: Face to face buzz meeting, so other staff were around- no one passed comment to me . LW: Only people Julia was aware of abigail/ fern/stuart/kay/doug RM: Abigail has left, doug henning, stuart lunn, morgan mcghie, kay bass. LW: Do you know what they heard? RM: I asked Anissa, was he [sic; that was probably meant to be “she”] on the call and did she hear the reference to the sex worker comment , she said yes. LW OK defo one to talk to then, thank you Rachel. RM: I did think about it, I wracked my brain but didn’t recall the comment myself. LW: Rachel thank you for your time”

[49]We pause to point out that those notes showed that Mrs Wilkinson did not ask the members of her team at which she raised the topic what, if anything, they remembered as having been said to the claimant on 5 August 2022, nor did she ask Ms Steel the same question in the same way. On both occasions, Mrs Wilkinson referred expressly to the claimant’s allegation that it had been suggested that she could make money as a sex worker and asked whether the person(s) to whom she was speaking recalled it. It was in our judgment clear from the notes at pages 1059-1060 that Mrs Wilkinson spoke to Ms Steel about what was said on 5 August 2022 by asking her “whether [s]he was on the call and did she hear the reference to the sex worker comment” shortly after receiving the claimant’s email of 9 August 2022 which we have set out in paragraph 47 above. We record here that Mr Stuart Lunn also had a recollection when he was interviewed by Ms Woods of the topic having been raised some months earlier. We say that because he was recorded in the notes at pages 1086-1087 to have said on 3 November 2022 to Ms Woods: “Some months ago someone suggested something was said in a meeting, but I didn’t hear anything.” The same was true of Ms Louisa Hawes, who was recorded in the notes at pages 1093-1094 to have said on 8 November 2022 that she had “heard what this may be about, about a week after” 5 August 2022. It was recorded on page 1093 that she said that she had not been in the meeting of 5 August 2022. The relevant passage was important, and was on that page and the following one, and was this. “LW: Alleged on 5/8 at an all colleague meeting, JC voice affected in the meeting, that a colleague made reference to sounding like a sex workerthe complaint is against the colleague alleged to have made the comment . lisa read out the statement on the G1. And subsequently alleges several MOS (JC joined virtually) she could see people on camera and complaints re hearing/ laughing. Were you in the meeting? LH: No I wasn’t, we used to have separate meetings, I was at the REEP site. LW: So you weren’t present in the meeting? You had mentioned you had heard, can you repeat. LH: The following week, comment along the lines.. something about a sex worker. LW: Can you recall who from? LH: Think it was raised in a managers meeting, but I cant remember who said it. I just remember it being mentioned. LW: Can’t remember who said it or who they were talking about? LH: No, but there was a conversation about it being mentioned- directed at JC, but like I say was mentioned in a managers meeting. LW: Did someone say that happened or was it that being accused or actually saying? LH: Raised by JC, it had been raised by her as saying someone had said it. LW: Separate meeting? Who was there? The leadership meeting? LH: Myself/ Colin/Mark/Fiona/Chandni. LW: Can’t remember what else? LH: No just that someone had said it but no one knew who and that JC raised it.”

[50]On 10 August 2022, the claimant sent Mrs Wilkinson the email at pages 891- 892. We do not need to set it out here but we record that in it the claimant said, among other things, that she was “not able to come into work today as I have had a severe reaction to the unpleasant incident at work”.

[51]On 11 August 2022, the claimant started a period of “self-certified sick leave”, which she recorded in the form at pages 892-893 which she completed on 16 August 2022. At the bottom of page 892, in the box under the question “What was the nature of your illness? Words like ‘unwell’ or ‘ill’ are not enough”, the claimant had written this. “I was insulted by a manager openly in front of the operations team. I should look at being a Sex worker with the association of my voice. I attend meetings via Teams. I felt sold.”

[52]There was a box below that in which the completer of the form was required to “Please explain briefly why this prevented you working”, in which the claimant had written this. “This triggered my known mental health condition of PTSD anxiety and Depression. I am receiving structured treatment – Coping with Trauma PTSD and due to have 1-2-1 counselling. Saying that there is money to be made in being a sex worker caused an unpleasant reaction in the workplace. My Team members laughed and enjoyed the experience making me feel embarrassed I call out to each and everyone to try and reach out via Teams to stop the abuse.”

[53]On 18 August 2022, the claimant presented the grievance at pages 887-899. It was in a form called a “Form G1”. It contained the following passages on the following pages.53.1 On page 888, this was said. “I am in pain but frightened of losing pay. Please help me as I am deteriorating. I cannot afford to loose pay if I am sick from a Disability related absence. I did not ask for the following treatment or participate in anyway to deserve the treatment.”

53.2 On page 894, the claimant wrote in the box next to a cell in which the form asked for the “Names of others present”: “The operations Team that attend the meeting. The camera can only pick up what angle Fiona sets it to. Abigail, Fern Stuart, Douglas, Ken, Morgan, Kay – (I shouted out their names, I do not know why but I said hello and they waived back”.

53.3 In answer to the question in the next line “How did this behaviour affect you?”, the claimant wrote (still on page 894): “I do not think I am functioning properly. I have just tried to log on and listen to Keeping Safe revised E learning and was physical sick because I have been treated as a porne person and the comment offered the audience a peep show, because of my disability and taken medication causes my voice to change. The other person was not treated in coaching a profession on selling her voice as a sex worker. I am already undergoing Copy with Trauma sessions PTSD where I have suffered re-occuring symptoms of Anxiety and Depression subjected Discrimination in the DWP Workplace due to be heard on 31 August 2022. The impact of continuous behaviour and having to follow due process - I have contact ACAS as I have come as far as I can trying to assert my right not to be discriminated against. Equality Act 2010.”

[54]Ms Woods was asked to investigate the claimant’s grievance of 18 August 2022. We saw that in paragraph 8 of a witness statement in the name of Ms Woods and apparently signed by her (she did not, as can be seen from what we say in paragraph 4 above, give evidence to us), she said this. “There was a lot of information in the G1 form and it wasn’t particularly clear what the scope of the complaint was. The key complaint appeared to me to be sexual harassment. The Claimant had referred in her G1 form to having a disability and having had disability-related absence. If she is alleging that the comment was related to having a disability, this is not something I had picked up on as part of the grievance and I did not ask Fiona about that specifically. I can now see in G1 (at page 891) that the claimant referred to her voice being husky ‘because of treatment’ but I didn’t take this to be a suggestion that the comment was made because of her having a disability or related in any way to any disability she may have. To me the alleged comment seemed clearly sexual in nature and I focused my investigation on whether the comment was made (rather than focusing on why the Claimant’s voice may have been husky).”

[55]In fact, we did not see a suggestion that someone work as a sex worker as being “clearly sexual in nature”, i.e. about gender as such. It was about sexual activity for money rather than gender. If the comment would have been made to a man in the same or similar circumstances then it would not have been less favourable treatment because of sex.

[56]In any event, Ms Woods carried out an investigation by interviewing 15 members of staff including the claimant. Ms Woods stated her conclusion on the grievance in the letter dated 24 November 2022 at pages 1045-1046, which was accompanied by the 20 appendices at pages 1047-1097. The appendices did not include a note of the interview of the claimant. That interview took place on 31 October 2022 and the notes of it were at pages 1013-1016.

[57]Ms Woods’ conclusion was stated on page 1045 in the following terms. ‘Grievance decision I am writing about our grievance communications via email 9.9.22 and our meeting on 31.10.22 where we discussed your grievance about being referred to as a sex worker in an all-staff operations meeting on Friday 5th August 2022 in High Wycombe. The main reasons for your grievance as stated on the G1 Grievance Form was that Fiona Washington referred to you as a sex worker (smooth rusty voice), adding words to the effect of “there is money to be made from being a sex worker” and “you should consider that Julia as seriously there is money to be made”. You stated you felt humiliated and embarrassed, you referred to sexual abuse and that this incident had a psychological impact on you. My decision is to uphold your grievance. Whilst Fiona Washington has denied that she used the words “sex” or “sex worker”, the basis for my decision is that there is direct evidence that this incident occurred. I have interviewed several witnesses and there are two members of staff that do recall the incident (appendices five and seventeen). One member of staff recalls the word “sex” specifically being used (appendix 5) and one member of staff recalls “sex worker” (appendix 17) and that in both cases it was Fiona Washington that made this statement in the meeting. Considering the DWP definitions of bullying, harassment and discrimination, the evidence gathered during the investigation supports that an isolated incident of harassment related to the protected characteristic, sex, occurred on Friday 5th August 2022.’

[58]We considered that conclusion to be materially flawed. The first reason why we say that is that, as we indicate in paragraph 55 above, referring to the possibility of someone working as a sex worker is related to sexual activity, not gender. It would be offensive to suggest that someone might work as a sex worker, but both men and women work as sex workers, and the suggestion would not obviously be related to the gender of the person to whom the suggestion was made.

[59]Rather more importantly, however, the interview notes in the 20 appendices showed that of the 14 members of staff other than the claimant who were interviewed, only two (Ms Steel and Ms Hammond) recalled a reference to working as a sex worker being made, and a number of the other interviewees gave strong and apparently credible evidence that they did not hear any reference to working as a sex worker. Some said that if they had done so then they would have remembered it and in a number of instances the interviewees said that if they had heard it then they would have “called it out”, i.e. objected expressly to it and called the maker of the suggestion to account. Purely by way of example, we noted the following factors in relation to the things said to and by Ms Kay Bass.59.1 At page 1067, Ms Bass was noted to have had (on 11 October 2022) no recollection of what was alleged by the claimant to have been said, and to have said that she was “quite shocked” by it being said that Ms Washington had made a reference to the claimant “sounding like a phone sex worker” (and the fact that it was put to Ms Bass that that was said was itself a sign of the lack of precision of Ms Woods in her investigation). In addition, Ms Bass said: “They are both lovely ladies so I cannot imagine.”

59.2 Ms Bass was interviewed again on 8 November 2022 and it was put to her that she had “sat and watched and laughed and [done] nothing to stop the sexual abuse”. What she said in response, as noted at page 1069-1070) was that those were “very strong words”. She continued: “I was surprised to see discrimination on sex, race and disability, I’m really shocked. I consider myself to be a good person and an inclusive person. If I had heard I would have felt compelled to respond.”

59.3 In addition, at the top of the next page, there was this exchange noted. “LW: Allegation JC dialled in, the angle that the SP was set she could see yourself and others and that after the comment was made JC says she could see yourself and others and she called out their names, said hello and they waved back after this was said. KB: This sounds even weirder. If I went and stood by the door and you were waving at me you would be the size of a credit card. If JC waved, possibly at the beginning of the meeting? But absolutely no recollection of that being done/said.”

[60]In addition, none of the interviewees whose interviews were in the 20 appendices recalled any laughter, and none of them recalled the claimant doing what she said in the first paragraph of her email of 9 August 2022 which we have set out in paragraph 47, namely “I looked around the room and deliberately called out each and every person saying hello, hoping really for someone to say someone.”

[61]There was a further problem with the investigation of Ms Woods, and that was that, with the exception of how she approached the issue in her first interview of Ms Steel (Ms Woods interviewed Ms Steel three times: on 13 October 2022, 14 October 2022 and 4 November 2022, the notes of which were at, respectively, pages 1061-1062, 1063-1064, and 1065-1066), Ms Woods first asked whether the interviewee recalled the words “sex worker” being used. So, she used a leading question in all of her interviews, including that of Ms Hammond, apart from in the interview of Ms Steel. That fact undermined significantly the reliability of the answer given by Ms Hammond (at page 1089).

[62]In addition the initial answers given by Ms Steel and Ms Hammond to Ms Woods were vague and by no means confirmatory of the proposition that the words “sex worker” were used. At page 1061, Ms Steel was recorded to have said this in her first response: “Fiona said ‘oh you could get a job working on one of those sex lines’ or something like that. I don’t remember verbatim but something along those lines.”

[63]Ms Woods then put the question in a more blunt way, and in our view appeared to be looking for confirmatory evidence. The notes continued: “LW: From your recollection was sex worker or sex definitely used? AS: Sex was definitely used, I was quite taken back LW: Was anything else said by Fiona? AS: Not as far as I remember, went straight into the meeting. LW: Now that you’ve said that, the allegation made was that ‘you should look at being a sex worker’ and the second comment ‘you could make good money out of that’. Thank you for your time, and this concludes the meeting.”

[64]However, at that point Ms Woods had erred. That was clear from the fact that the notes of the meeting of the following day (at page 1063), had these entries. “LW: Follow up from meeting held. You’ve confirmed 2 comments made? AS: I said I had heard the sex worker comments but I didn’t confirm make good money the other bit does sound familiar but not that I heard that bit.”

[65]The fact that “the other bit” sounded familiar but that Ms Steel had not heard it should in our judgment have put Ms Woods on notice that Ms Steel had before being interviewed by Ms Woods discussed the claimed events of 5 August 2022 with other members of staff and that a “memory” might have been created in the mind of Ms Steel by Mrs Wilkinson at first asking (as recorded in the note of the interview of Mrs Wilkinson conducted by Ms Woods and noted at pages 1059- 1060, to which we refer in paragraphs 48 and 49 above) Ms Steel whether Ms Steel had heard a reference to “sex worker” being made at the meeting of 5 August 2022. However, Ms Woods simply moved on at that point and did not press Ms Steel further.

[66]As for what was said initially by Ms Hammond, at page 1089 there was this record (and while the whole of the passage is relevant, we have for the sake of continuity at this point underlined the initial response of Ms Hammond). “ LW: JC, it was a day where her voice was affected. The accusation was a colleague made reference to how she sounded and allegation was – you sound like a sex worker was used. Lisa read out the paragraph from the G1 complaint form. My first question is do you have any memory to that or words to that effect being said to Julia? GH: I do remember something but not exact words, but sex worker being mentioned. A few people chipped in, but I don’t remember who said what. I do remember thinking ooohh unnecessary, was a bit taken aback. LW: You were in the office? Can you recall who said it? GH: Fiona definitely said the words “sex worker”, I cannot remember the exact phrase. LW: Again words to the effect of- Lisa read out the words again GH: Cant remember exactly but along the lines of “money to be made”. I cannot remember whether it was Fiona that made the second comment. But Fiona definitely said “sex worker”. LW: Also allegation was FW said it, but then the complaint by JC against other colleagues that she could see due to camera angle, so another part of complaint is that other members of staff laughed, watched and did nothing to stop the sexual abuse. Do you remember what comments were made and who said them? GH: No, it was probably something along the lines of moving away from the subject… moving away. LW: Ah ok. GH: Cant recall anyone making direct comments or laughing. LW: that’s fine. So you remember words – sex worker being used by Fiona and nothing about laughing, but someone bringing it back? GH: Yeah, some may have laughed out of embarrassment but I cannot remember if it happened. LW: No one said it was actually not appropriate? GH: No LW: Can you remember who said lets move it on ? GH: No”

[67]The fact that Mrs Wilkinson had “raised [the complaint] at a team meeting” in the manner which we describe in paragraph 48 above was plainly also not taken into account by Ms Woods in her interviews of potential witnesses or when she arrived at her conclusion which we have set out in paragraph 57 above that there was “direct evidence that this incident [i.e. the suggestion that the claimant could work as a sex worker] occurred”.

[68]In addition, there were the following further factors relating to the claimant’s initial statement about what had happened to which Ms Woods did not refer and which it appears that she did not take into account in assessing the reliability of the claimant’s claim that the words “sex worker” had been used.

[69]The claimant’s first assertion about what had been said was in her email of 9 August 2022 which we have set out in paragraph 47 above. For convenience, we now repeat the relevant words: ‘I would like to make an complaint about the treatment that I received joining the All staff meeting on Friday 5 August 2022. Where I was told that (because of the treatment I am taking), my voice husky and smooth. To then add the assumption and association of being a Sex Worker. I looked around the room and deliberately called out each and every person saying hello, hoping really for someone to say someone. The Comment added to say “You know Julia you can make money out of that, there is good money to be made”.’

[70]The second sentence of that extract was plainly wrong but was written in our view with a view to making it appear that someone other than the claimant drew attention to the fact that her voice was not her usual voice. In fact, the claimant herself relied during the hearing before us on what Ms Steel was recorded to have said at page 1061, which was that the claimant herself introduced the topic.

[71]Secondly, and importantly, the claimant did not say in the next sentence that the words “Sex Worker” were used, but, rather, that “the assumption and association” of being a sex worker was somehow added. The language used by the claimant in that regard was opaque, but it was capable of being read as a statement that it was implied that as a result of her voice being “husky and smooth”, she could use it on for example a telephone sex chat line.

[72]There was an assertion about some specific words being used, and that was that the words in quotation marks were used. That supported the proposition that there was no express reference to “being a Sex Worker”, and that if anyone associated the reference to the claimant’s voice being “husky and smooth” with being a sex worker, then it was in the mind of the person who made that association, and not an expressed association.

[73]Saying that someone could make money out of a smooth and husky voice is not obviously connected to working as a sex worker: an innocent hearer of that assertion would in our judgment think of using the voice in a voice-over such as for an advertisement.

[74]In all of those circumstances, we came to the clear conclusion on the balance of probabilities that the claimant’s assertion that the words “sex worker” had been used expressly on 5 August 2022 was made known by Mrs Wilkinson to the members of her team and the other members of the Jobcentre’s management team in the manner described in paragraphs 48 and 49 above, and that those words then became implanted in the minds of both Ms Steel and Ms Hammond, so that when Ms Woods interviewed them, they “remembered” that those words had been used when, in fact, we found on the balance of probabilities, they had not been used on 5 August 2022 by anyone present at the meeting of that morning. A discussion about the claim of a failure to make reasonable adjustments

[75]Mr Perry submitted to us that there was nothing in the evidence before us from which we could properly conclude that the first respondent knew or could reasonably have been expected to know that approaching the claimant about the possibility of her returning to working in person at High Wycombe Jobcentre would be (using some non-technical language) problematic for her as a result of her accepted disabilities. We accepted that submission.

[76]The proposition that the claimant should have been permitted (and by implication should continue indefinitely to be permitted) to work from home on the basis that that would have been a reasonable adjustment within the meaning of section 20 of the EqA 2010 had to be seen against the background of the demands of the job which the claimant did, and the availability of alternative work which the claimant could reasonably be required to do on a permanent basis.

[77]When EJ Hyams was giving the tribunal’s reasons for dismissing the claimant’s claims and stated the content of the preceding paragraph above, the claimant objected to the proposition that she had claimed that she was entitled to be permitted indefinitely to work from home on the basis that that was an adjustment within the meaning of section 20 of the EqA 2010. The possibility of that having been claimed was raised in paragraph 35 of the witness statement of Mrs Madhani, which we have set out in paragraph 42 above. As EJ Hyams said in response to the claimant’s interjection, it was possible to read the words of issue 2.5.3 in the list of issues set out in paragraph 2 above as being to the effect that the claimant should have been permitted to work from home indefinitely. The claimant then said that the document at page 482 (which was a Public and Commercial Services Union document) showed that if she had a “fit note” stating that it was a reasonable adjustment for her to work from home, then she should be permitted to work from home until the fit note had expired without renewal. EJ Hyams then said that we had already considered the impact of a fit note, and it was clear from its text, which we had already gone through (as set out in paragraphs 20-25 above) that it was advisory only.

[78]Plainly, a doctor’s advice in a fit note that it would be a reasonable adjustment to permit an employee to work from home is no more than advice, and it is given after a short consultation with the patient, albeit that the doctor might have seen the patient a number of times. In addition, in a case where the employee is claiming to have a mental health condition, the doctor is usually reliant on what the employee tells the doctor, so there may be no objective phenomena by means of which the employee’s claimed mental illness can be verified. But most importantly, the question whether permitting an employee to work from home was an adjustment within the meaning of section 20 of the EqA 2010 is determinable only by an employment tribunal. In addition, if an employer is defending a claim that there has been a failure to make such an adjustment then the employer is not bound by any prior acceptance that it was reasonable to permit the employee to work from home. In any event, we had not been referred by the claimant to the document at page 482, and EJ Hyams pointed that out to the claimant when responding to her objection. We did, however, when we looked at that document after the hearing had ended, not see anything material in it for present purposes.

[79]While the test of reasonableness for the purposes of section 20 of the EqA 2010 is not the “range of reasonable responses of a reasonable employer” test, it can be helpful to consider the case law on the parallel situation of a claim of a breach of section 15 of the EqA 2010. That is because claims under sections 15 and 20 of the EqA 2010 are “closely inter-related”: see paragraphs 16-27 of the judgment of Elias LJ in Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

[2016] IRLR 216

. Section 15 is about “unfavourable” treatment “because of something arising in consequence of [the claimant’s] disability”, which it is not “a proportionate means of achieving a legitimate aim” to impose.

[80]There is the following helpful summary of the applicable principles in paragraph L[377.02] of Harvey on Industrial Relations and Employment Law concerning the question whether any unfavourable treatment “is a proportionate means of achieving a legitimate aim”: “The EAT in Hensman v Ministry of Defence

UKEAT/0067/14/DM

, [2014] EqLR 670 applied the justification test as described in Hardy and Hansons Plc v Lax

[2005] EWCA Civ 846

[2005] IRLR 726

[2005] ICR 1565

to a claim of discrimination under EqA 2010 s 15. Singh J held that when assessing proportionality, while an ET must reach its own judgment, that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. (Applied Monmouthshire County Council v Harris

UKEAT/0010/15

(23 October 2015, unreported)). As stated expressly in the EAT judgment in City of York Council v Grosset

UKEAT/0015/16

(1 November 2016, unreported), the test of justification is an objective one to be applied by the tribunal; therefore while keeping the respondent’s ‘workplace practices and business considerations’ firmly at the centre of its reasoning, the ET was nevertheless acting permissibly in reaching a different conclusion to the respondent, taking into account medical evidence available for the first time before the ET. The Court of Appeal in Grosset (

[2018] EWCA Civ 1105

[2018] IRLR 746

) upheld this reasoning, underlining that ‘the test under s 15(1)(b) EqA is an objective one according to which the ET must make its own assessment’.”

[81]We saw no good reason to think that the business interests of the civil service are to be regarded as any less stringent than those of a private sector employer. That is not least because the civil service is spending taxpayers’ money, which gives rise to a number of considerations.

[82]In addition, the mere fact that the employer has (as it had here) permitted employees other than the claimant, employed to do the same job as the claimant (here, Work Coach), to work from home, could not mean that we had to conclude that it was a reasonable step within the meaning of section 20 of the EqA 2010 to permit the claimant to work from home.

[83]In any event, in our view an employer’s business interests cannot be regarded as being capable of being overridden by what is said in a fit note. At the risk of stating the obvious, the key issue when asking whether there has been a failure by an employer to make an adjustment within the meaning of section 20 of the EqA 2010 is whether the employment tribunal considering the claim that there has been such a failure agrees with, or accepts, that claim.

[84]The claimant accepted in cross-examination that work coaches generally were primarily focused on supporting claimants on intensive work search regimes.

[85]It was Mrs Madhani’s express evidence, given in answer to EJ Hyams’ questions, that the four other employees who were working from home on 5 August 2022 (taking that as a convenient date since we had before us some evidence about the number of staff working in the office and working at home on that day, which led us to the conclusion which we state in paragraph 46.3 above) had both physical and mental health conditions, none of which were expected to be permanent. We record here that we accepted that evidence. Our conclusions on the claims made in these proceedings, and our reasons for them The claim of a failure to make reasonable adjustments within the meaning of section 20 of the EqA 2010

[86]Given our conclusion stated in paragraph 75 above, we concluded that the claim that the claimant should not have been asked to return to the office, stated in paragraph 2.5.1 of the list of issues set out in paragraph 2 above (“the list of issues”), had to fail.

[87]The claim set out in paragraph 2.5.2 of the list of issues, namely that “The Claimant should not have been asked to attend a stage 2 meeting on 8 July 2022”, was based, it became clear during the hearing before us, on the following propositions:87.1 the claimant’s GP had given the advice in the fit note of 21 December 2021 at page 963 to which we refer in paragraph 26 above and the claimant had told the first respondent (as recorded in the passage on page 750 which we have set out in paragraph 40 above) that she was “going to ask the doctor for a further fit note”; and

87.2 the words of page 440 that we have set out in paragraph 39 above showed that the respondent’s guidance to managers was to determine an application for permission to work from home as “a disability reasonable adjustment ... before managers have recourse to this procedure”.

[88]We did not accept that those factors meant that it was a reasonable adjustment within the meaning of section 20 of the EqA 2010 not to ask the claimant to attend a stage 2 meeting on 8 July 2022. That was because the respondent’s internal policy documents were not determinative of the question whether or not there had been a breach of the EqA 2010. In addition, the stage (or step) 2 meeting described (or stated) at pages 442-444 was in our view an entirely appropriate step for the first respondent to take in the circumstances to which we refer in paragraphs 37, 38, 42 (in the final paragraph of the extract from Mrs Madhani’s witness statement) and 84 above.

[89]Essentially for the same reasons, namely the evidence to which we refer in the final sentence of the preceding paragraph above, we concluded that it was not here a reasonable step for the claimant (as claimed in paragraph 2.5.3 of the list of issues) to “have been allowed to continue to work from home without any process being applied”, even if that issue was restated as applying only to the period when there was a fit note in which it was said by the claimant’s doctor that she would be able to work if she were permitted by the respondent to work from home.

[90]In those circumstances, the claim of a breach of sections 20 and 21 of the EqA 2010 did not succeed. The claim of victimisation

[91]We saw nothing in the circumstances from which (applying section 136 of the EqA 2010 and Efobi v Royal Mail Group Ltd

[2021] UKSC 33

[2021] ICR 1263

) we could draw the inference that the manner in which the claimant was treated on 11 May 2022, which was the subject of the claim stated in paragraph 4 of the list of issues, was to any extent the result of the fact that the claimant had stated a grievance against Mrs Madhani in December 2021.

[92]In any event, we accepted on the evidence before us on the balance of probabilities that what Mrs Madhani did in relation to the claimant’s workload on 11 May 2022 had nothing to do with the fact that the claimant stated that grievance. It was, we thought, in any event, a rather inaccurate description of what occurred to say that the claimant had been “lock[ed] out of her caseload for 2 days on 11 May 2022”. Further, we thought that the reason for taking the steps on 11 May 2022 about which complaint was made was purely as stated by Mrs Madhani in the passage of her witness statement that we have set out in paragraph 34 above. The claim of harassment

[93]For the reasons given above and summarised in paragraph 74 above, we concluded that the claim of harassment as stated had to fail. That is because we concluded that no express reference was on 5 August 2022, at the meeting about which complaint was made in these proceedings, made to the proposition that the claimant might make money from her voice by working as a sex worker. We add that(1) while we are critical of Ms Woods’ investigation for the reasons stated in paragraphs 48-73 above, we saw that it was her first investigation, and

(2) it is not reasonable to expect an employer’s investigation of the facts to be done to the standard of a competent judicial body. We add too that we are emphatically not critical of Ms Woods herself: only of the manner in which she conducted her investigation.

[94]Having come to the factual conclusions stated in paragraph 46 above, we asked ourselves whether saying that someone could make money from their smooth and husky voice in a jokey way (and the claimant accepted when she sought permission to amend her claim to add a claim of harassment within the meaning of section 26 of the EqA 2010 that the alleged comments were made in a jokey way, as we record in paragraph 2 above) could be regarded as harassment within the meaning of section 26 of the EqA 2010. While that was not the claimant’s case, we thought that given that she was a litigant in person, we should ask that question. However, having asked it, we could not see on what basis doing that could be found to be harassment within the meaning of section 26, or at least not in the circumstances before us.

[95]For those reasons, the claim of harassment, stated in paragraph 3 of the list of issues, did not succeed.

Conclusion

[96]For all of the above reasons, none of the claimant’s claims succeeded. Approved by