Mr G Baker and Ms L Spinks v Secretary of State for Justice: 3314367/2020 and others
EMPLOYMENT TRIBUNALS
Case No 3314367/2020, 3314418/2020, 3323742/2021
Between
Mr G Baker (1)ClaimantSecretary of State for JusticeRespondent
Before
Employment Judge HawksworthMs J Twomey (instructed by counsel) for claimantMr J Chegwidden (instructed by counsel) for respondentDate 29 May 2024
JUDGMENT
[1]At the material times (31 March 2020 to 6 August 2021) the second claimant was disabled within the meaning of section 6 of the Equality Act 2010 by reason of pneumothorax (causing weak lungs) and benign paroxysmal positional vertigo (causing dizziness).[2]The respondent is ordered to pay £4,050 by way of contribution to the claimants’ costs incurred in respect of the postponement on 26 August 2022 of the full merits hearing.[1]The claimants’ complaints of discrimination arising from disability, failure to make reasonable adjustments, and health and safety detriment are not well founded and are dismissed.[2]Lisa Spinks complaints of unfair dismissal are not well founded and are dismissed. JUDGMENT having been sent to the parties on 11 June 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]In claim forms that were presented on 27 November 2020, the claimant made complaints of discrimination arising from disability, a failure to make reasonable adjustments and health and safety detriments.[2]The claimant, Lisa Spinks, also made complaints about unfair dismissal on the grounds of health and safety and also, what is often called ordinary unfair dismissal, based on a constructive dismissal.[3]We heard evidence from the governor of HMP Bullingdon. We also heard evidence from Ms Drury, who is one of the deputy governors, and we heard evidence from Dorothy Comber-Wood, who was the claimant’s line manager. We also heard evidence from both of the claimants. All the parties helpfully provided us with written statement which were taken as their evidence in chief. We were provided with an agreed chronology and a bundle of documents running to some 781 pages. The respondent provided us with a written skeleton argument and the claimant’s counsel made oral submissions. We have taken all those matters into account in arriving at our decision and we set out here those matters that we consider necessary in order for us to be able to explain why we came to the decision that we did.[4]The claimants were employed as Industrial Cleaning Instructors at Her Majesty’s Prison Bullingdon. Lisa Spinks was employed from 21 November 2010 until 6 August 2021. Gary Baker’s employment started on 13 February 1983 and is continuing. The claimants’ roles were to train and assess prisoners in industrial cleaning enabling them to receive a certificate and gain transferrable work skills. The claimants carried out their duties principally at a closed indoor workshop working with a number of prisoners which, prior to the matters that we are going to discuss, was about 19, and two other members of staff. Lisa Spinks is disabled within the meaning of the Equality Act 2010 by reason of a condition which was related to her lungs. Gary Baker was disabled within the meaning of the Equality Act 2010 by reason of a heart condition.[5]Throughout the relevant period, which is from March 2020 until the proceedings were commenced, the respondent was aware of the claimants’ conditions. What is in dispute between the parties is when the respondent became aware of the claimants’ respective conditions amounts to a disability within the meaning of the Equality Act 2010.[6]Lisa Spinks, at all relevant times, also had caring responsibilities for her aged mother who had disabilities and the respondent was, at all material times, aware of this also.[7]The covid 19 pandemic commenced in 2019 and arrived in the United Kingdom in a significant way from about the beginning of 2020. The claimants became aware of their respective health conditions meaning that they were more at risk of serious illness or death if they caught covid. They were both understandably, reasonably, and as it turned out in the case of Mr Baker, with good reason, anxious, worried and scared by such a possibility. Additionally, Lisa Spinks was worried that if she caught covid it could be passed onto her mother and that could have been fatal to her also, bearing in mind her age.[8]On 23 March 2020, the government of the United Kingdom made it a legal requirement that people stay in their homes. This became known as lockdown. It was an unprecedented measure in the history of this country and similar measures were being adopted in many other countries across the world. The claimants were told by their line manager, Dorothy ComberWood, to remain at home from about 23 March.[9]Gary Baker was initially told that he was to stay at home for a period of 12 weeks. However, before 12 weeks had passed Gary Baker was contacted by his line manager and asked to return to work in the grounds of the prison on 30 April. He was to be based at the Visitor Centre which is outside the prison and he was to be doing activities outdoors such as cutting grass and picking litter.[10]Lisa Spinks also stayed at home until 30 April. After that date she returned to work and was based in the Visitor Centre doing tasks which had been assigned to her by her line manager.[11]At the start of the pandemic, Her Majesty’s Prison Bullingdon (I am just going to refer to it as a prison from now on), operated in a restricted regime where prisoners were required to spend extended periods in their cells. Work, education, and recreational activities were all curtailed or ceased altogether. As the vocational training of prisoners was suspended the claimants were not required to attend for work in the prison workshop where they would carry out their usual duties.[12]There was a telephone call on 31 March 2020 to Lisa Spinks from the Covid Team. There is a dispute between the parties about the nature of that call which we will come to later.[13]Lisa Spinks remained working from home until 30 April when she started in the Visitor Centre. In that time she had discussions with her line manager and governors about the work that she could do on returning to work, the consequences of not returning to work, and the options available to her.[14]The context of these discussions, which started from about April through to October, was that Lisa Spinks’ concern about the risk of covid set against the prison’s need to get people back in the prison carrying out work. Lisa Spinks’ concerns were about catching covid and possibly passing it onto her mother and, in the meantime, the line managers were trying to convince Lisa Spinks about the actions taken in the prison in order to make people safe and trying to persuade them to come back in to work. Examples of such conversations took place on 31 March, 29 April, 30 June, 21 July , 4 August, 2 September and 5 October.[15]What the claimant says about these conversations is that they were conversations where there were threats made to her to deduct wages. In the list of issues it is stated that they were threats of dismissal. However, we have not been able to discern from the evidence that we have heard in this case any actual contention that they were threats of dismissal made to the claimants in this case. The respondent denies that there were any threats of dismissal or deduction from wages.[16]Lisa Spinks was referred to Occupational Health on various occasions by her managers. A number of Occupational Health reports were prepared and advice was given to the respondent. The respondent did not necessarily follow the advice from Occupational Health. In its considerations of Occupation Health advice, making a global statement at this stage, the Tribunal is of the view that the respondent acted reasonably and did have regard to the claimant’s position and the need also to make decisions which related to the safe operation of the prison.[17]There were a number of occasions when Gary Baker was also referred to Occupational Health and we consider that the approach to him was the same, broadly, as it was towards Lisa Spinks.[18]Up to July 2020, the claimants had not been working within the prison itself, they had been working outside the prison in the Visitor Centre. In July 2020, the prison service produced what had been called an Exceptional Delivery Model or EDM. This was a framework document which set out information and advice to be adopted by individual prisons to support the gradual reintroduction of education and other activities within prisons. The prison governors applying this process began considering how educational activities within the prison could be resumed safely. Under the EDM the provision of educational activities was considered a priority and industrial cleaning could also be considered a priority activity as it provided an essential service that could be delivered to the prisoners and moving towards an increase in face to face activities. Industrial cleaning, at this time, was a matter of importance as part of the strategy being adopted within the prisons and more generally in society because, at the direction of the government, people were to maintain cleanliness, by carrying out sanitation exercises like washing and using hand sanitiser.[19]The prison service issued guidance about support and management of staff who were either clinically extremely vulnerable, which is the category where people were required to shield; those who were living with people who were clinically extremely vulnerable and then the last category is those that were clinically vulnerable. The respondent, at all times, considered that the claimants were clinically vulnerable and treated them accordingly in the assessment of measures necessary to support their return to work in the prison.[20]On 30 June, the claimants, together with their union representative, met with Dorothy Comber-Wood. Of this meeting Dorothy Comber-Wood states, “I was asked what would they do if he refused to come back to work at the prison. My answer was that they would eventually stop your pay.” That piece of evidence that was given extemporary by Dorothy ComberWood essentially encapsulates what she says was the thing that she was saying on a number of occasions to the claimants. She did not necessarily agree that all the occasions on which the claimants say there was reference to the question of pay was raised but, to the extent that it was said, her position was that that was the message she was trying to get across to the claimants that there may come a time when, if they do not work doing their duties, the respondent would cease to pay the claimants. The claimants, on the other hand, characterised this exchange as a threat that the claimants would not get paid if they did not return to work. The Tribunal accepts that the comments along the lines suggested were made but we are satisfied that it was not intended as a threat when Dorothy Comber-Wood made such comments to the claimants. The claimants say similar comments were made on other occasions and we do not consider, when said, it was ever intended as a threat.[21]The claimants were referred to Occupational Health and further reports provided in about July. It was advised that Lisa Spinks should not return to normal duties until lockdown was lifted. In respect of Gary Baker, it was advised that he continue working in the “little protected bubble” until instructions from government changed.[22]On 21 July the claimants, together with their union representatives, had a meeting with Governor Chin and Dorothy Comber-Wood. The purpose of the meeting was to discuss the possibility of the claimants return to work in the prison. In the meeting the claimants explained their situation and they were told by Governor Chin that there would be status quo and they would not have to return to work in their prisoner facing roles.[23]On 1 August, the prison reopened for visitors and this meant that Lisa Spinks, who had been working in the Visitor Centre, and Gary Baker, who had been working outside but used the Visitor Centre for his rest periods, were required to move to what is called the Old Officer’s Mess.[24]On 21 July Gary Baker made a grievance. That grievance came to be heard on 17 and 18 August and among the complaints that Gary Baker makes was about the conduct of the grievance itself. What he says is that rather than the grievance addressing his complaints the focus of the meeting was to try to get Gary Baker to return to work. We consider that this is significant because it highlights the approach of the respondent at this time which was an attempt to try and grapple with those matters that were an impediment to the claimants returning to work in their normal role. In the grievance Gary Baker asked that himself, his colleagues, and prisoners be required to wear face masks. Gary Baker pointed out that the Occupational Health advice that had been given in this case was being ignored and he says that in the course of the grievance this was acknowledged by the respondent.[25]The grievance outcome was given to Gary Baker on 24 August and this was to partially uphold his grievance on the grounds that the information provided to him was confusing and overwhelming.[26]Dorothy Comber-Wood carried out a further risk assessment in respect of Gary Baker’s substantive role on 18 August. Gary Baker made it clear that he did not agree with the risk assessment being carried out by his line manager.[27]In the grievance outcome Gary Baker was told that the respondent had carried out a risk assessment to mitigate the concerns that he had raised and that measures were put in place such as cleaning and hand sanitation stations and this was in order to try and meet Gary Baker’s anxiety about covid 19 which was, in his case, a serious threat to his health and this was something which the respondents had clearly recognised.[28]By September 2020, the respondent was requiring the claimants to return to work in the prison workshop. It is clear that, from about July onwards, they had been trying to persuade the claimants to return to work in the workshop and at various meetings governors and line managers had been trying to convince them that the respondent had taken measures to make them safe and it was safe for them to return to work in the prison workshop. The respondent, at that stage, was not instructing them to return to work in the workshop.[29]A further Occupational Health report in respect of Gary Baker was provided on 28 September. The report included the following comments. Under the heading of summary of identified issues it stated that: “The only issue Mr Baker has with returning to his contracted duties is the lack of PPE equipment for both staff and inmates such as face masks, face visors, plastic aprons and gloves.”[30]The advice given by Occupational Health was: “In my clinical opinion, Mr Baker is in a high risk category due to his cardiac condition. He stated that he is happy to return to his instructor role if he is able to wear PPE, face masks, face visors, plastic aprons and gloves in the workplace and that inmates and work colleagues on his course are also wearing PPE. If there is no PPE then Mr Baker will be at higher risk of covid 19 contraction and advised not to work in the instructor role until this is rectified.”[31]There was a further meeting on 30 September 2020 between Gary Baker and his union representative. At this meeting was Olivia Phelps, Governor, and Dorothy Comber-Wood. Gary Baker asked in this meeting that he stay in his small bubble of three people. He said that he would be willing to return to his industrial cleaning role if he could wear appropriate PPE. In this meeting Mr Baker was told that he would not be permitted to wear a face mask as a face mask was not required as PPE for his normal duties. Although the wearing of face masks had been advocated by the government from around July 2020, and in some places, such as public transport, it was obligatory to wear face masks. At this time, that is on 30 September 2020, in respect of prisons, the position remained that there was no instruction that face masks be worn.[32]On 5 October, Gary Baker received a letter which told him that he was being instructed to return to work in the workshop. The letter set out the measures that had been put in place by the respondent and also gave some advice about the way that Gary Baker should conduct himself by maintaining social distance and taking other steps. The letter confirmed the respondent’s position on the use of PPE.[33]Gary Baker submitted a further grievance on 10 October. However, before the grievance was considered, there was a change in the respondent’s position in respect of the wearing of masks. Directions were given that the prison staff could wear masks and the prison could mandate the scenarios where the wearing of what was referred to as FRSMs, or Fluid Resistant Masks, were compulsory and in the prison as such an exercise was being conducted and further guidance was to be issued. The position in respect of the wearing of masks changed so that each member of HMPPS can choose to wear FRSMs at any time and this is something that was based on a personal choice and was to reflect the increasing use of face coverings in the community and the guidance provided that “We will provide the masks for this use provided that staff cannot wear their own masks or any alternative type of mask”. The date of this effective change of policy was 19 October. As a result of this change in policy Gary Baker was permitted to wear a mask and, as part of the resolution of his grievance outcome, he was also allowed to wear a face visor. In other respects however Gary Baker’s grievance was not upheld.[34]Again, Dorothy Comber-Wood carried out a further risk assessment in respect of Mr Baker and again, Mr Baker contends that the measures referred to in the risk assessment in fact were not complied with. He makes specific reference to the failure to provide hand sanitiser. We note however that the respondent’s witnesses all disagreed with this stating that this was provided in numerous locations throughout the prison.[35]Gary Baker appealed the grievance outcome and the appeal was partially upheld.[36]In January 2021, Gary Baker caught covid. He became seriously unwell and he spent 10 days in hospital, part of that time spent in a high dependency unit where he was placed on a ventilator. It is not possible to say where or how Gary Baker caught covid.[37]On 4 August Lisa Spinks was spoken to by Governor Olivia Phelps and Shirley Grant who is from HR. What the claimant says is that, on this occasion, she was put under pressure to return to work in her normal duties so much so that it reduced her to tears. We note that we have not heard any evidence from Governor Phelps or Shirley Grant.[38]Lisa Spinks put in a grievance complaining about the behaviour of Dorothy Comber-Wood and also complaining of discrimination. The grievance was heard on 17 August. The outcome of the grievance was that it was partially upheld. Partially upheld in that it was said: “I fully accept that the communication and how you were communicated with could have been significantly better and I am sorry for this.”[39]On 2 September 2020, Lisa Spinks and Dorothy Comber-Wood again discussed her return to work. Lisa Spinks again contends that she was threatened with a pay cut unless she returned to work. Again, the making of any threats was denied by Dorothy Comber-Wood.[40]There was a further referral of Lisa Spinks made to Occupational Health.[41]On 30 September, Lisa Spinks met with Deputy Governor, Olivia Phelps and Dorothy Comber-Wood and she was told that she would need to return to work in the prison workshop. She received the letter on 1 October. The letter was handed to her and that explained that she was being instructed to return to work in the prison. This was to be a phased return to her substantive role in the workshop.[42]Lisa Spinks returned to work in the workshop from 8 October until 28 October save for a period when she had to isolate and have covid tests.[43]Lis Spinks did not return to work after that date because, as a result of the combination of annual leave, sick leave and special leave, she remained absent from work and, sadly, during this period, was when the claimant’s mother died.[44]Lisa Spinks was off sick form about March 2021 and in the time that she was off sick she would have contact with her line manager, Dorothy Comber-Wood.[45]In one conversation on 13 May 2021, Dorothy Comber-Wood told the claimant that when she returned to work she would be given a warning under the sickness absence procedure.[46]Lisa Spinks had a further Occupational Health meeting on 18 May.[47]On 6 July, Lisa Spinks again spoke with her line manager, Dorothy Comber-Wood, and had a further discussion during which Lisa Spinks was told that her line manager was to refer her to Occupational Health once more. Lisa Spinks describes this as the last straw for her. What she says is that: “I was seeing doctors, counsellors and taking my medication and yet this wasn’t enough for my employer. I just had as much as I could take. I told Dorothy Comber-Wood that I had had enough of the threats and bullying and I was leaving my job.”[48]Lisa Spinks subsequently sent a letter of resignation and her employment with the respondent came to an end on 6 August 2021.[49]There is one event in the chronology that I have missed out that I should have made reference to. In about March 2021 Lisa Spinks received a telephone call from Paul Reeve. Paul Reeve took over as the Governor who line managed Dorothy Comber-Wood and what he said to her in a telephone call the claimant recounts as saying that “It’s time for her to come back to work because she has been off for a long time now.”[50]The claimants bring claims of:(i) discrimination arising from disability (s15 Equality Act 2010 (EA);(ii) failure to make reasonable adjustments (s20/21 EA 2010);(iii) health and safety detriment. (s44(1)(d) & (e)1 Employment Rights Act (ERA) 1996). Lisa Spinks alone brings claims of:(iv) automatic unfair dismissal (health and safety) (s100(d) & (e) ERA 1996); and(v) constructive unfair dismissal (s95 & 98 ERA1996)[51]Section 6 Equality Act 2010 (EA) provides that A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[52]Section 15 EA provides that A person(a) (A) discriminates against a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[53]The Tribunal keep in mind that the Code the Equality and Human Rights Commission Employment Statutory Code of Practice, provides that "5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."[54]Section 20 EA provides that Where the EA imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. The duty comprises the following three requirements. The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a 1 These subsections were in force as at the time of filing Cs’ claims; they were repealed on 31 May 2021 under Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (S.I. 2021/618). 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.[55]Section 21 EA provides that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[56]Section 44 Employment Rights Act 1996 (EA) provides that A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger. For the purposes of subsection (1A)(b) whether steps which a worker took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. A worker is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1A)(b) if the employer shows that it was (or would have been) so negligent for the worker to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did. The section does not apply where the worker is an employee and the detriment in question amounts to dismissal.[57]Section 95 EA provides that an employee is dismissed by his employer if 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 (s95(2)(c)).[58]Section 98 EA provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. A reason falls within this subsection if it relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, or relates to the conduct of the employee.[59]Where the employer has shown a potentially fair reason the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.[60]Section 100 EA provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. Whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. Where this is the reason (or, if more than one, the principal reason) for the dismissal of an employee he or she shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.[61]So, turning to the issues that we have to determine in this case.[62]It is accepted that both claimants were disabled.[63]The question in issue in relation to both claimants is, did the respondent know that the claimants were disabled, and if it did, at what time.[64]The claimants say the answer is yes, at all material times. The claimants say that they had serious conditions and that they suffered significant disadvantage by reason of those conditions. Both claimants’ conditions were known to the respondent and discussed with them in the backdrop of covid 19 when the respondent sent the claimants home initially and then gave them alternative duties to perform over an extended period. What the claimants say is that, taking all these matters into account, the respondent must have known and should be taken to have constructive knowledge of disability and the disadvantage faced by the claimants because of their underlying conditions which the respondent was aware of.[65]The respondent contends that it became aware of the disability of Gary Baker form 8 July 2020 but says, and I quote from the respondent’s submissions: “It’s not accepted that the respondent knew or ought to have known Lisa Spinks’ disability prior to that and while Gary Baker had disclosed on 23 March 2022 to Comber-Wood that he had a stent fitted and Lisa Spinks claims that she made a further prior disclosure of this fact Gary Howarth on a previous occasion this neither explicitly identified nor reasonably implied disability status. It gave no indication of substantial adverse effect in Gary Baker’s ability to carry out normal day to day activities, The mere fact that Gary Baker had been hospitalised to have the stent inserted in the first place has no relevance as to the long-term substantial adverse effects.”[66]In respect of Lisa Spinks, the claimant relies on the lung condition. The respondent says that it was not aware that the condition constituted a disability; that the claimant’s GP’s letter did not identify the claimant as disabled; that the Occupational Health reports did not say the claimant was likely to be disabled but rather stated the opposite; and in her grievance the claimant did not say she was disabled. The respondent also point out that when Lisa Spinks went on leave on 21 March 2021 she did so for covid related stress and anxiety.[67]The conclusion of the Tribunal is that the respondent should, first of all, do all that can reasonably be expected to find out whether the employee is a person with a disability. In this case the respondent was aware of the claimants’ reported serious conditions which, in circumstances of covid, were capable of having a serious adverse impact on their health. The respondent was sufficiently aware of the risks to the claimants and made significant adjustments to their working circumstances and did not require them to return to work until it had made arrangements that it was satisfied meant that they could safely return to work either outside the prison or from October 2020, in the prison workshop.[68]We consider that the evidence in this case, where there is an absence of any evidence that the respondent made any direct enquiries about disability, the respondent either considered the claimants were disabled and therefore knew, or in any event, had they made the relevant reasonable enquiries would have known, gained knowledge of the disability so that, in our view, it is appropriate for us to impute knowledge of the disability.[69]The conclusion of the Tribunal therefore is that we are satisfied that throughout the relevant period the respondent knew of the claimants’ disabilities.[70]Turning now to the various legal claims that are made.[71]Both claimants make a complaint about discrimination arising from disability pursuant to section 15 of the Equality Act 2010.[72]The first issue to be determined in respect of that series of issues is the question of whether the respondent threatened to stop the claimants pay and/or dismiss the claimants.[73]There was no evidence given by either of the claimants of threats to dismiss on any occasion so that part of the alleged unfavourable treatment is not made out.[74]There is little real dispute between the parties as to the fact that, at some point, it was stated that if the claimants did not work they would not be paid. How this came to be said is disputed and what it was intended to convey is disputed. The respondent says that, while there were conversations which included the option for the claimants to take unpaid leave in the covid period and/or the potential that one consequence of failing to come to work inside the prison, when it was reasonably safe to do so and the claimants were instructed by the respondent to do so, would be that pay could ultimately be affected. Neither of those constituted a threat.[75]This did no more than articulate the general common law and contractual duties of compliance with a reasonable management instruction as to attendance, to which all employees are subject, merely to remind the claimants of this common law and contractual reality as a possible outcome was not to threaten the claimants.[76]As to unpaid leave, it was an option floated for all employees from the outset of the pandemic.[77]The respondent takes issue with evidence given by the claimants on each of the occasions a threat is alleged and specifically, in relation to the 30 June, the respondent states that: “Dorothy Comber-Wood’s clear recollection was that this issue only arose via a question from Gary Baker and not of her own accord”. Dorothy Comber-Wood also gave clear evidence that she never threated anyone and did not have the authority to make pay cuts or reductions. The claimants’ union representative, Mr Leonard, was present at this conversation but did not apparently take issue with the contents of the discussion suggests that no threat was made. The respondent points out that although the claimants issued grievances, neither mentions the issue of threats of pay reductions.[78]The letter of 5 October, the most strident of all the communications from Lisa Spinks, did not mention any pay reduction threats.[79]The claimants say that, telling someone they will not get paid is unfavourable to them, and even if this was the application of a policy, that can be unfavourable treatment if the effect of the policy is unfavourable because of something arising in consequence of disability. The claimants say that there were threats for them to come back to work or go unpaid. That they perceived what was said to them as threats and that they were reasonable to do so because this was, factually, the respondent’s position.[80]The claimants point to an email from Karen Drury to Dorothy ComberWood in which she states of the claimants, “Olivia will meet with them and tell them that they will have to come back or go unpaid. Hopefully, this will now come to an end.” This email is dated 15 September and it was written at a time when the respondent was at the point where an instruction was to be given to the claimants to return to work. The claimants say that Dorothy Comber-Wood was carrying out instructions from above and that, although she may not have intended to make threats, that is what it boils down to. The claimants say any alleged nuance in the analysis of the comments made by the claimants’ manager is really merely semantics and a proper construction of what was said is that it was in fact a threat.[81]The conclusion of the Tribunal is that these were not threats. Even if the claimants found the idea of either returning to work in the prison when they considered it unsafe to do so, or not returning in the prison and therefore not being paid, both unfavourable and threatening in their consequences to health or financial stability.[82]The respondent had found the claimants work outside the prison but from July was trying to get the claimants to agree to return to work in the prison workshop. This was a difficult ask because of the protections that the claimants were asking for, as a simple minimum, included masks and other simple PPE. The respondent did not permit that until October 2020. This was not an adjustment that the respondent was willing to accede to. So when the claimants were being asked to return to work in the prison workshop they did reasonably perceive this as unsafe. The respondent took a variety of steps to try and make it possible for the claimants to return to work but, at the point that the respondent thought that it had made such arrangements to make it safe for the claimants to return to work, the respondent was still refusing to accede to their minimum request for PPE. Dorothy Comber-Wood was principally charged with communicating the respondent’s position to the claimants and she did so intending to try and find a way for the claimants to return to work. She was frustrated by the fact that some of the suggestions were vetoed by her seniors, however, we do not consider that she ever issued any threats or that a fair representation of what she, or any manger, was saying to the claimants, was a threat.[83]We accept that the claimants were given options which included a “no pay” option, ie, return to work, take annual leave, TOIL or take unpaid leave. The Tribunal also accepts that these options would have been discussed at various points. The telephone call to Lisa Spinks on 31 March from the Covid Team, in our view, is not likely to have contained any threat. But even if it did refer to a no pay circumstance, in our view, would likely have been in the context of explaining what happened if a person does not work. We note also that at this stage, when this telephone call was made, there was no work for the claimants in the prison and they were being directed to stay at home. The respondent found work for the claimants to do outside the prison workshop from March until October and Dorothy Comber-Wood was prominent in her efforts to find work for the claimants outside the prison workshop. We do not consider that she would have been inclined to make any threats to the claimants or that she would have had the authority to make any deduction from pay and, therefore, in our view, it is not likely that she would have made such a threat to the claimants. In our view, her evidence about the comment she made about no pay being made in response to a question from the claimants is likely to be a correct statement.[84]In conclusion, the Tribunal’s view is that the claimants’ complaints about discrimination arising from disability fail because we are not satisfied that in the way that the respondent dealt with the claimants there were any threats of dismissal or no pay. Further, the Tribunal find in any event, that the respondent’s actions were proportionate. The claimants may have perceived threats but threats were not intended. From July 2020 the prison was to work towards restarting education and training within the prison. It was reasonable to speak with the claimants about how to get them back to work in the prison workshop. Not all workshops had opened but the claimants’ workshop had been a priority for opening. This was a legitimate aim.[85]The claimants make a complaint pursuant to section 44 of the Employment Rights Act 1996. For the reasons set out above we find that there were no detriments so we move on to consider the complaints under the Equality Act relating to the failure to make reasonable adjustments.[86]In respect of the complaint about failing to make the reasonable adjustment, the claimants make the submissions along the following lines:86.1 Firstly, there was a provision, criterion or practice of requiring staff to work within the main prison building and also, from March 2020 until November 2020, the respondent did not allow PPE except for specific tasks irrespective of covid.86.2 The claimants were clinically vulnerable; they were at a more significant risk if they contracted covid and this caused them stress in a significant way. They therefore suffered a substantial disadvantage.86.3 The claimants were disadvantaged because they were extremely vulnerable. They were at a greater risk of health complications if they caught covid. There was a requirement that the claimants work in a prisoner facing role having to work with people who would then have contact with other people on the wing. The prisoners were required to socially distance but that was not always possible and the respondent’s evidence referred to the requirement for prisoners to socially distance but did not unequivocally state that this was always achieved.86.4 The claimants were at greater risk because they did not wear PPE prior to November 2020. The refusal to allow the claimants to wear PPE put them at a substantial disadvantage because it resulted in them suffering greater stress and anxiety but if they caught covid they would be more ill; the fact that they were prevented from wearing PPE made them more stressed than someone who was not disabled.86.5 The claimants state that there were reasonable adjustments that the respondent could have made in allowing them to wear PPE that was available and this would have had the effect of alleviating their anxiety, or at least gone some way to doing so, and any underlying anxiety about catching covid would have been reduced. The respondent’s explanation, the claimants say, for why this was not a reasonable adjustment should be rejected. The claimants say costs could not be an issue having regard to the size and resources of the respondent. There was in fact PPE in the form of gloves, masks and aprons. Allowing the claimants to wear PPE would not have created a precedent because each case would have to be considered on its own merits. The claimants say that there was no evidence that the use of PPE would increase the risk of catching covid, it is unlikely to be correct and, flies in the face of the fact that PPE was being worn in a variety of areas as a mitigation of the risk of catching covid. That the respondent applied the no mask policy without any willingness to deviate from it and that the period of time that the claimants were required to work and be without PPE prior to the change of policy is not a relevant consideration.[87]The respondent’s response is set out in detail in written submission produced to the Tribunal.[88]The conclusion of the Tribunal is that in this case there was no breach in the duty to make reasonable adjustments and our reasons are as follows:88.1 First of all, addressing the points made by the respondent, from March until October the claimants did not have to work from their usual workstations, they were required to work there from October 2020, that is to work in the prison workshop.88.2 The substantial disadvantage for the claimants was that if they contracted covid the effect on them would be more serious and the stress and anxiety as a result of having to work in the prison and the risk of catching covid and the knowledge of their underlying conditions placed them at a substantial disadvantage in contrast to somebody who did not have their disability.88.3 The claimants’ clear evidence was that not only did they suffer stress as a result of the conditions that they were expected to work in the prison but they also suffered stress in relation to covid and their anxiety about catching it in all aspects of their lives. The reality must be that, in any event, they were as likely to catch covid on the bus as they were anywhere else.[89]Have the respondents failed to take steps that it was reasonable to take in order to avoid the disadvantage of the additional stress and anxiety suffered by the claimants from working in the prison workshop? What the claimants say is that they should have been allowed to wear PPE when working. Secondly, that they should not have been required to work in prisoner facing roles without PPE. They should have been allowed to continue to work outside the prison.[90]The respondent makes a number of points which we consider worth highlighting.90.1 The first is that there was no PPE prescribed for the undertaking of the instruction or teaching tasks.90.2 There is evidence that the workshop in which they worked allowed for social distancing. This is important because that was the primary method by which the prison authorities sought to attempt to keep the people in the prison safe.90.3 There is evidence that they took steps to provide the cleaning materials, the hand sanitising equipment, in various places.[91]In the view of the Tribunal, the most important feature is that the respondent had a reasoned basis for adopting the policy that they did. The reasonableness of requests by individuals to wear a mask that was not role prescribed on the grounds of their elevated anxiety fears had to take into account the factors which the respondent relied on in the evidence of Governor Sapwell and those matters were listed by the respondents in their closing submissions at (a) to (g) of paragraph 28.[92]Considering all those things, our view is that the respondent did take steps firstly, to take the effect of the PCP away by allowing both claimants to work outside the prison from March until October. Secondly, we consider that this was reasonable until October because the claimants had alternative work available for them and instruction in the workshop was not being undertaken. But when instruction in the workshop had started, or was to start, it was no longer reasonable to expect that situation to continue.[93]There was a policy until 19 October against wearing face coverings and masks; this was reasoned and, in the circumstances, we consider was a reasonable option. In the context of the pandemic and the need to maintain a prison regime, we consider that the judgments made were in the context reasonable ones. Thereafter, when the policy changed and the respondent did allow masks and face coverings that does not, in our view, mean that the position previously adopted was one which was unreasonable and thus ought to be considered as a failure to do something that was reasonable.[94]There was a prison policy against wearing masks which was adopted, taking into account a number of factors which we consider the prison were entitled to have regard such as; the perceived utility of wearing masks when the primary means of avoiding the spread of covid was social distancing, sanitising and enhanced clearing regimes; and the assumed effect (on the part of the government) of the impact wearing masks would have on the prison environment. The respondent did not make any exception to the policy when it could have done but bearing in mind the claimants, prior to October 2020, were not working in the prison, the adherence to the policy was reasonable. The masks, in any event, would not have addressed the issue of the more significant adverse effect on the claimants if they caught covid but we recognise it would have had an impact on the claimants’ stress. But the respondent did have a strategy for addressing risk of catching covid and until the guidance changed in October 2020 it was reasonable for the respondent to take the approach that it did in relation to masks. Once the policy changed the claimants were able to wear PPE and the Tribunal do not consider that there was overall a failure to make reasonable adjustments.[95]We should make a comment about the risk assessments made in the claimants cases. The manner in which they were carried out by Dorothy Comber-Wood was, in our view, erroneous in the way that the scoring of the risk was done. However, it is also clear that the risk assessments sought to identify risks and to provide measures to address them. They were of some utility if followed even if the weight of the risk was wrongly calibrated by Dorothy Comber-Wood. We do not consider that the manner in which the risk assessments were conducted had such an emasculating effect on the remedial actions taken by the respondent as to mean that there was a failure to make reasonable adjustments.[96]Finally, we address the issue of dismissal.[97]In respect of either the complaint about ordinary unfair dismissal or the health and safety unfair dismissal we have to be satisfied that there was a constructive dismissal.[98]In a constructive dismissal the employee must show that there was a fundamental breach of contract on the part of the employer; that the employer’s breach caused the employee to resign and that there was not any undue delay before resigning. Finally, that there was no affirmation of the contract.[99]The respondent’s submissions on this were that the claimant, Lisa Spinks, who brings the claim for unfair dismissal, was unable to show any of the relevant criteria.[100]However, Lisa Spinks states that the respondent had failed to provide a safe place to work; failed to make reasonable adjustments, failed to follow medical advice, failed to follow Occupational Health advice and that the cumulative effect was the breach of the obligation of trust and confidence.[101]The conclusion of the Tribunal is that there was no breach of trust and confidence. The respondent did not breach the duty to provide a safe place of work. The claimant relied on a number of matters which the Tribunal did not accept were made out. The claimant stated that she was subjected to pressure to return to work. The Tribunal consider that the respondent acted reasonably in its engagement with the claimant in trying to convince her of the arrangements made in the prison to try to get her to agree to return to work. The Tribunal do not consider that there was an unreasonable failure to implement advice that was given by medical professionals or Occupational Health. The employer has to decide whether it acts upon advice from Occupational Health and, in our view, there was no unreasonable disregard of Occupational Health advice. We do not consider that the respondent failed to act on medical advice.[102]When the claimant was informed that her absences had triggered a warning about absence on her return to work the claimant was being informed of the position in respect of the respondent’s absence procedure. There was no unreasonableness in doing this, it was the procedure that Dorothy Comber-Wood was required to follow by the respondent.[103]The telephone call from Paul Reeve, who replaced Ms Drury as the claimant’s manager, in our view, set in isolation or against the background of the matters that occurred, did not amount to a fundamental breach of contract. The claimant being informed that she was being referred to Occupational Health on 6 July was not a matter which, in isolation, amounts to a breach of contract or if set against a background of all the other matters in this case is capable of being a final straw. The claimant may well have thought she was going round and round in circles and been frustrated by the way events had progressed but, in our view, there was no breach of contract by the respondent or any conduct that could amount to a breach of contract whether in isolation or set against the background of all the events that had taken place.[104]We consider that the claimant’s resignation email speaks for itself and sets out the reasons for the claimant’s resignation. There may have been other factors at work that are unexpressed, but we do not consider that the claimant was resigning in response to a breach of contract.[105]Finally, the point that we make about all this is that it should not be forgotten that this was all taking place in the context of covid. Many of the events and incidents that had to be thought about by authorities and individuals were unique and first time experiences. There was an element of taking on advice from above starting with the government and the government’s medical advice, and employers had to make judgments, individuals had to make judgments, often relying on the expertise of others and without any historical basis for a person to know what was likely to occur. So where you have an employer who seeks to follow advice handed down from above in a covid type context, it is important to step back and see whether or not their actions were appropriate in the circumstances. Something like covid results in events that were thought to be the right way of acting, that on reflection, and with the benefit of hindsight, have not been correct actions. With covid there still remains much controversy about what were appropriate and inappropriate measures taken at the time. The wearing of face masks itself is something which people still debate today as to whether it was an effective measure at the time or was not an effective measure at the time.[106]So, bearing all that in mind, we step back from all of this and look at the way the respondent acted the way it tried to react to and address the claimants’ concerns and we do not consider that this is a case where the respondent has acted in a way that was unlawful. We also think it is important to recognise that the claimants’ conduct throughout these events was always proper and they made themselves available to the respondent in a way which allowed the best possible outcome to arise and there can be no criticism given to the claimants notwithstanding our conclusions.