Ms K Bajorska v GXO Logistics UK II Ltd (Formerly Clipper Logistics plc): 3314505/2022
EMPLOYMENT TRIBUNALS
Case No 3314505/2022
Between
Ms K BajorskaClaimantGXO Logistics UK II Limited (Formerly Clipper Logistics Plc)Respondent
Before
Employment Judge Quill; Mr P Miller; Ms S BootMr M Mensah (instructed by counsel) for respondentDate 31 July 2025
JUDGMENT
(1) The following complaint of direct race discrimination succeeds. As per paragraph 3.13 of list of issues, there was a delay discussing amended duties for the claimant following the occupational health report that was issued in May 2022, and this was less favourable treatment because of race.(2) All the other allegations of direct race discrimination fail and are dismissed.(3) The allegations of indirect race discrimination fail and are dismissed.(4) The following complaint of disability discrimination succeeds. As per paragraph 23a of list of issues there breaches of the duty to make reasonable adjustments. It was reasonable for the Respondent to have had to take those steps and it failed to do so.(5) All the other allegations of disability discrimination fail and are dismissed. Page 1 of 54
REASONS
[1]This claim was presented by an employee who alleged race discrimination and disability discrimination. The Respondent accepts that the Claimant was a disabled person; it denies all the allegations of breaches of the Equality Act 2010 ("EQA").[2]The hearing took place in person. We reserved our decision. The Claims and The Issues[3]There had been preliminary hearing in private for case management on 26 May 2023. [Bundle 60]. It resulted in an agreed list of issues. Omitting remedy, that list was as follows. The numbering / lettering is as per the original, some minor typos have been corrected:
Introduction
[1]The claimant makes the following claims:1.1 Direct discrimination on grounds of race;1.2 Indirect discrimination on grounds of race;1.3 Failure to make reasonable adjustments. Direct race discrimination[2]The protected characteristic relied upon is the claimant’s Polish nationality[3]Was the claimant subjected to the following treatment because of race:3.1 Did Arune Radiamonte (“Arune”) Make complaints about the claimants performance.3.2 Did Arune shout at the claimant.3.3 Did Arune tell the claimant off for minor things.3.4 On 24th February 2022 did Arune tell the claimant off for standing and talking while other employees were chatting and standing too.3.5 Did Arune leave the claimant out of their communication by asking others staff to pass on information to the claimant.3.6 Did Arune fail to provide clear instructions to the claimant.3.7 Did Arune deliberately failed to provide helpful answers to the claimant. Page 2 of 543.8 Did Arune ignore the claimant.3.9 In December 2021 did the respondent unreasonably delay holding a meeting with the claimant regarding amended duties (“the Amended Duties Meeting”).3.10 Did Chris Cowlard hold the Amended Duties Meeting in a hall and write the notes of the meeting on his knees.3.11 Did the respondent fail to share the recommendations for the claimant from the Amended Duties Meeting with other managers.3.12 Did Arune deliberately send the claimant to complete tasks that were unsuitable for the claimant and ignore the amended duties recommendation.3.13 Did the respondent unreasonably delay discussing further amended duties for the claimant following the occupational health report that was issued in May 2022.3.14 Did the respondent failed to implement any alleged reasonable adjustments for the claimant.3.15 Did Arune ignore or treat the claimant impatiently because the claimant is Polish and speaks English poorly.[4]If the claimant was subjected to some or all of the treatment set out above was this less favourable treatment than the following comparators:4.1 in respect of paragraph 3.9 the actual comparator of Elenora;4.2 in respect of the other complaints the complaint compares herself with other employees supervised by or who worked with Arune who:(a) were not Polish; or(b) were Polish but spoke English well.[5]If the claimant was treated less favourably as alleged, was that treatment because of ethnicity/nationality.[6]Can the respondent show that it took all reasonable steps to prevent its employees from “doing that thing” (i.e. the treatment set out in paragraph three above) or from anything of that description (section 109(4) EqA) Indirect race discrimination[7]In the alternative to her case on direct race discrimination in paragraph 3.15 the claimant alleges indirect race discrimination as follows[8]The protected characteristic relied upon is the claimant’s Polish nationality Page 3 of 54[9]Did the respondent, acting through Arune, apply the following provision criterion or practice: a. Ignoring or treating less patiently workers who did not speak English well.[10]Was that PCP applied to the claimant?[11]Did the respondent apply this PCP generally including to persons with whom the claimant does not share the protected characteristic alleged?[12]If so did the PCP put persons who share the claimants protected characteristic at a particular disadvantage compared to others? In particular:a. Who is within the appropriate pool for comparison?b. Within that pool how does the PCP affect those who do not share the claimants protected characteristics? How many are affected by it?c. By comparison between those who share the claimant’s protected characteristic and those who do not, does the protected group suffer a particular disadvantage?d. If the claimant was a member of the protected group is there a causal link between the disadvantage and the PCP?[13]Did the PCP put the claimant in particular to that disadvantage?[14]Was that disadvantage more than minor or trivial? The claimant alleges that she was ignored and/or treated impatiently.[15]Can the respondent show that the PCP was a proportionate means of achieving a legitimate aim? Disability discrimination[16]The respondent accepts that the claimant was disabled at the material times because of [specified medical condition]. However, the respondent does not admit that it failed to make reasonable adjustments.[17]Did the respondent apply the following PCPs to the claimant?a. Sending the claimant to attend heavy warehouse tasks including PTS, wholesale, franchise and picking. Page 4 of 54b. Requiring the claimant to complete heavy lifting in their role as a warehouse operative.c. Requiring the claimant to stand while working in the labels department.[18]Did the PCPs put the claimant at a substantial disadvantage in comparison with those who are not disabled?[19]Did the respondent know or ought to have known that the claimant was at a substantial disadvantage because of the PCPs?[20]If so, what steps could the respondents have taken to avoid that disadvantage?[21]Was it reasonable for the respondent to have taken those steps?[22]When did the respondents duty to make reasonable adjustments arise?[23]The claimant will contend that the respondent should have made the following adjustments:a. Moving her to work in the cleaning, labels, gun office or IHF.b. Reducing her contact with Arune.c. Providing the claimant with a chair when she was working in the labels department. Jurisdiction[24]Insofar as there were a series of acts, did they constitute an act extending over a period (a continuing act)?[25]Were the claims presented within the time limit contained in section 123 Equality Act 2010?[26]If not, was the claim presented within such further period as the tribunal thinks just and equitable? 4. The parties each confirmed on Day 1 that this was the correct list of the liability issues that we needed to decide. They each made some observations on the morning of Day 1, and we gave our decisions at 2pm on Day 2. Page 5 of 54 5. We made clear to the parties that we were only dealing with acts/omissions that were set out in list of issues and were up until 6 December 2022. We said that where the witness statements described events (or alleged events) that were later than 6 December 2022, we were not proposing to strike out those parts of the statements, but that, if the evidence was relevant at all, it would only be relevant to the extent that it assisted us to make decisions about the events up to 6 December 2022. 6. For the reasons we gave at the time, we ruled that certain matters were covered by “without prejudice privilege” and there had been no waiver of privilege, and that, therefore, we would not take into account the evidence about those matters. 7. At the start of Day 3 (which was part way through Ms Radimonaite’s evidence), it was suggested by the Claimant’s representative that the word “performance” in 3.1 should be changed to say “errors”. We advised the parties to discuss with each other whether they both were content for that amendment, and said that we could either be asked to hear submissions about it in a break between witnesses or else it could be left until we heard the substantive submissions on the case as a whole. The Hearing and The Evidence 8. We had a bundle that was numbered up to page 344. Including index and inserts, it was about 404 pages in total. References in this document to [Bundle XXX] are to page XXX of that bundle. 9. For the reasons we gave at the time, we allowed Ms Jeffery to give evidence. We also allowed some amendments to the Claimant’s written statement in comparison to the version that was exchanged, including changes to paragraphs 77 and 84 which were needed because of our decisions about “without prejudice privilege”. 10. We had written statements, and heard oral evidence, from the following witnesses. For the Claimant Karolina Bajorska (the Claimant) Katarzyna Kasińska-Jadczak Stanislaw Ligocki For the Respondent Arune Radimonaite Page 6 of 54 Melissa Harriette Jacobsen Jerard Walsh Teresa Jeffery 11. As well as her separate written statement, the Claimant also swore to the accuracy of the impact statement at [Bundle 50] and we took that into consideration as part of her witness testimony. The Claimant’s written statements were in English. She confirmed, and we accepted, that she understood them well enough to confirm the accuracy. She gave her evidence in Polish, and this was translated into English by the interpreter. The Findings of Fact 12. There was early conciliation from 22 September 2022 to 3 November 2022. The claim was presented on 6 December 2022. 13. We make the following findings of fact on the balance of probabilities having considered all of the evidence presented during the hearing. 14. The Respondent provides storage and transportation of retail goods. In the UK arm of the logistics division, the Respondent employs approximately 5,500 staff across 48 sites nationwide. 15. The Claimant was born in Poland and her native language is Polish. The Claimant came to the UK as an adult in 2015. She spoke no English at that time. 16. The Claimant has continuous employment from 21 November 2019. Prior to that date, the Claimant was engaged as an agency worker. The Claimant’s employment transferred to the Respondent on 1 July 2021 pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006. 17. Not long after the start of employment, in around 2019, the Claimant, with her husband, attempted to speak to a manager, Teresa Jeffery. This was not a formal meeting, but they walked alongside her. Mr Ligocki, speaking English, translated and gave his own information. They wanted to make Ms Jeffery aware of the Claimant’s medical condition and offered to show Ms Jeffery photographs. Ms Jeffery said that she did not think that was necessary. 18. The Claimant’s job is Warehouse Operative. The Claimant’s role involves being rotated to work in different areas in the Distribution department. The Claimant undertakes various duties in those different areas, which includes lifting of items. The Respondent provides certain equipment, including trollies, to assist with transporting the items around the site. The Claimant’s duties included placing Page 7 of 54 items onto, and removing items from, the trollies. Employees were not supposed to lift items that were more than 15kg. 19. At the times relevant to this dispute, the Claimant worked the night shift at the River Island Distribution Centre. 20. The Claimant’s husband, Stanislaw Ligocki, worked for the Respondent (and its predecessor) as a Warehouse Operative between 2012 and 2022. 21. Katarzyna Kasińska-Jadczak began working in the business in 2005 and was also part of the TUPE transfer. At the times relevant to this dispute, she was a Warehouse Operative on the night shift. 22. At the times relevant to this dispute, Ms Arune Radimonaite was a Key Worker, and later a Supervisor, on the night shift. She had worked in the business from 2004 and TUPE transferred to the Respondent at the same time as the Claimant. She became Supervisor in 2021. She was responsible for a team of Warehouse Operatives during a shift. Her duties included delegating tasks to those Warehouse Operatives in accordance with instructions from more senior staff. She also conducted some meetings with the staff reporting to her, such as return to work meetings with colleagues. Key Workers are more junior than the Supervisors but assist the Supervisors. 23. Ms Radimonaite describes herself as “half Polish and half Russian and from Lithuania”. She does not speak Polish. 24. Ms Radimonaite worked across two warehouses and sometimes (on the night shift), she was the only Supervisor on the shift and had no Key Worker to assist. The Warehouse Operatives under her supervision were spread across the two warehouses and often she would not be working closely with all colleagues on the shift. To communicate instructions to those colleagues who could understand English, Ms Radimonaite might either speak to them directly if they were nearby, or ask a colleague to relay a message, or use the Tannoy. As well as employees who spoke Polish, other languages for Warehouse Operatives on the shift included Romanian and several Asian languages. Ms Radimonaite used the same method of communication with those employees as with the Claimant. That is, if a colleague who could speak both Romanian (or an Asian language) and English was available, she might ask that employee to translate for those who could not speak English, but sometimes there were no such employees available and she had to try to make herself understood as best she could by using a combination of English, and gesturing, etc. 25. To communicate instructions to those colleagues who could not understand spoken English well, Ms Radimonaite might either try liaising with them directly or, potentially ask another colleague to translate. The Respondent did not Page 8 of 54 provide interpreters to assist Ms Radimonaite and the Warehouse Operatives to communicate with each other. 26. Teresa Jeffery is a Training Manager. She is more senior than Ms Radimonaite. She started work in the business in 2009 and also TUPE transferred in July 2021. She did not work on the night shift. As part of the management team, her duties included carrying out meetings with employees such as return to work and welfare meetings.[27]The employees responsible for the day to day running of the River Island Distribution Centre are the Operations Managers. At the times relevant to this dispute, that included Jerard Walsh and Melissa Jacobsen. Operations Managers handle a number of internal matters including grievances.[28]For the Warehouse Operatives on the night shift, Ms Radimonaite was responsible for checking the accuracy of their work. If accuracy errors came to her attention, she would speak to the Warehouse Operative directly. The procedure was that she would keep a record of the discussion for 3 months, and if there were no further issues, that would be the end of it, and the record disposed of. If there were ongoing accuracy errors, then the matter might be taken further.[29]To check accuracy, the Supervisors and Key Workers sometimes examined a box which had been filled by a Warehouse Operative to check that the correct items had been placed inside the box, and/or that it had been labelled correctly.[30]Ms Radimonaite regards accuracy errors to be distinct from performance issues. If there was a problem with an employee’s productivity, then she would regard that as a performance issue.[31]The Claimant recollects a discussion with Ms Radimonaite that was not long after she became an employee, so late 2019 or early 2020. Ms Radimonaite does not recall the specific discussion in question but does not dispute that it may have happened. Mr Ligocki recalls the Claimant telling him about it on the day it happened, and Mr Ligocki recalls speaking to Ms Radimonaite about it shortly afterwards, and so we are satisfied that it did take place. Ms Radimonaite sought to speak to the Claimant of some accuracy errors. Ms Radimonaite did not arrange for a colleague who could speak Polish and English to translate. The Claimant was not clear about what specific issues were being raised with her. She declined to sign the record to acknowledge that these matters had been discussed with her.[32]There was no follow up to this. That is Ms Radimonaite neither escalated the (alleged) accuracy errors to the next stage, nor sought to impose any sanction on the Claimant for the Claimant’s refusal to sign the document. Page 9 of 54[33]In general terms, the Claimant alleges that there were complaints about performance, but apart from this particular meeting (at which the Claimant refused to sign the record) the only one that she can specifically recall is an incident when a tote box had not been closed properly. On the Claimant’s account this was unfair because she, the Claimant, had noticed that the tote was full and she therefore started a new one. In the Claimant’s opinion, the criticism ought to have been directed towards the last person to put an item in the previous tote, not to the Claimant, as the first person to start placing items in a new one.[34]She also alleges that Ms Radimonaite shouted. She says that Ms Radimonaite shouted at others too, but more often at her. She gives no information about specific dates. However, on being pushed she said that it was difficult to recall because it was 5 years ago. Based on the evidence as a whole, our findings is the time period during which it was the Claimant’s perception that she was being shouted at relate to the period of time when she was a new employee.[35]The claimant did not inform Ms Radimonaite that she, the Claimant, was dissatisfied with the way in which Ms Radimonaite was supplying instructions to her or communicating with her or treating her more generally[36]The Claimant has alleged that Ms Radimonaite does not like Polish people because her father was Polish and absent from her life. In fact, Ms Radimonaite’s father was not Polish (or part Polish). The Claimant based this assertion on nothing more than gossip.[37]The Claimant has also alleged that Ms Radimonaite does not like Polish people because she, Ms Radimonaite, believed that she had been treated badly by a Polish manager in the past. The Claimant has failed to prove this assertion, which lacks detail. Again, as with the false assertion about Ms Radimonaite’s father, it is not based on any first hand information which the Claimant has.[38]The Claimant’s opinion, as stated in cross-examination, was that Ms Radimonaite was harsh to all new employees regardless of nationality. However, her opinion was that she, the Claimant, was treated more harshly.[39]The Claimant made a friend request to Ms Radimonaite on Facebook. This was to Ms Radimonaite’s personal account, which had nothing to do with work. To the extent that the Claimant alleges that Ms Radimonaite declined to be Facebook friends with the Claimant because of the Claimant’s nationality, we reject that argument. It is not one of the specific alleged acts or omissions, but there is no evidence to support it; it is simply speculation on the Claimant’s part. Ms Kasińska-Jadczak, who is Polish, had been invited by Ms Radimonaite to be friends of Facebook, which is inconsistent with the Claimant’s assertion that Ms Radimonaite rejected the Claimant’s request because the Claimant is Polish. Page 10 of 54[40]In December 2021, There was an incident in the warehouse when some boxes (or “totes”) fell. The claimant was nearby when this happened. This was reported to Ms Radimonaite. As per [Bundle 115.14], Ms Radimonaite passed on details of the incident to the health and safety advisor.[41]On 14 December 2021, the Claimant attended an appointment with a consultant Dr Raza. The Claimant has been seeing this consultant for some time in connection with the condition that is relied on as (and is admitted to be) a disability.[42]Dr Raza prepared a letter which was typed on 17 December 2021. [Bundle 304]. In it he refers to “an incident at work yesterday”. That was a reference to the box falling incident. Our finding is that Dr Raza was not stating the opinion that the box falling incident had caused a worsening of the Claimant’s condition or had caused the specific relapse described in his letter. Rather, he was simply recording that that was the Claimants opinion. [Bundle 304][43]Dr Raza wrote a further letter the same day [Bundle 306] To Whom This May Concern This is to confirm that Karolina is having a relapse of her underlying medical condition because of a stressful situation at work. I would recommend that any further stressful circumstances are avoided at work to help her recover and avoid any escalation of her medical condition.[44]In other words, while the letter on [Bundle 304] (“first letter”) specified the medical condition, the one on [Bundle 306] (“second letter”) did not.[45]The Claimant handed the letter that is on [Bundle 306] to the Respondent in December 2021. There is no record of the exact date. The Claimant believes that it was 17 December 2021 (which, if true, would imply that she received it by email – or some other instant method - on the same day it was typed, which is not inherently implausible). However, even if she received it via the post a couple of days later than 17 December 2021, she handed it in promptly to the Respondent, to Dawid Cison, in December.[46]By 3 January 2022, the claimant had not received a response to the letter. That caused her to send the letter which appears on [bundle 116].[47]Having still had no response by 10 January 2022. she sent the letter that appears on [bundle 117]. I am just following up to check if you got time to look at my previous letter from 3 of January 2022. The absence of any response is upsetting and concerning. It results in more distress. My doctor provided me with light duties notice since then. I appreciate a meeting with somebody to address my issues. Please let me know when you’ll be able to look at it? Page 11 of 54[48]Around the same time, the Claimant obtained the Fit Note dated 7 January 2022 [Bundle 307], which stated that she had “work related stress” and that she may be fit to work with adjustments. All 4 of the standard pre-printed boxes (a phased return to work; amended duties; altered hours; workplace adaptations) were ticked and a bespoke comment “avoid heavy lifting” was added by the GP. The stated period was for 7 January 2022 to 6 February 2022. This Fit Note referred to “work related stress”, but not to either the condition as described in Dr Raza’s first letter, or to the condition as described (and admitted to be a disability) in list of issues.[49]The Fit Note was supplied to the Respondent around the same time as the 10 January letter. As a result, the Respondent instructed Mr Cowlard to meet the Claimant and he did so on 11 January 2022. The Claimant’s correspondence had come to the attention of Ms Jeffery (though she does not recall if she saw the actual letters themselves, or was just told about them), and she decided that Mr Cowlard was the best person to meet the Claimant as he would be available to meet the Claimant during the Claimant’s shift.[50]The meeting took place near to the end of the claimant’s night shift which she began on 10 January 2022. It took place slightly before 6am on 11 January 2022. There were four people in attendance namely Ms Radimonaite, Mr Cowlard, the Claimant and the Claimant’s husband (Mr Ligocki).[51]Ms Radimonaite was present only as a note taker not as a decision maker[52]Mr Cowlard has not been a witness. We have a record of his version of events, as told to Ms Jacobsen on 28 November 2022, at [Bundle 224].[53]It is not in dispute that the meeting did not take place in a private room. Mr Ligocki states that there were rooms nearby and we accept his evidence about that. Mr Cowlard’s account does not assert that he tried to book a room but none was available. Rather his account was that he believes that the location he chose was most suitable because of COVID and distancing requirements, and including the fact that the Claimant was unable to wear a face mask.[54]Our finding is that he arranged the meeting to take place in a location which there were no colleagues standing nearby or, as far as he was aware within earshot. He himself accepted that it was the type of meeting which should usually take place in a private office. However we have no reason to doubt what he said to Ms Jacobsen about his reasons for the choice of location.[55]Ms Radimonaite did not decide the location of the meeting.[56]During the meeting, Mr Cowlard orally informed Ms Radimonaite to refrain from allocating hanging duties to the claimant. We are satisfied that Ms Radimonaite complied with that oral instruction from that date onwards. Mr Cowlard did not Page 12 of 54 issue any other oral instructions to Ms Radimonaite and nor did he produce a written record of the discussion for the benefit of Ms Radimonaite, other managers, HR, or the Claimant. To the extent that the claimants side invites us to decide that any written record has been deliberately suppressed by the Respondent because it contains damaging evidence and that we should draw adverse inferences from the failure to disclose it, we think it more likely that Mr Cowlard simply failed to create a proper record at the time. We accept the evidence from the claimant and her husband that he was making notes but we also accept their evidence that he was doing so by making handwritten notes on his knees. According to what he told Ms Jacobsen, Mr Cowlard believed that he had resolved matters to everybody's satisfaction with the instructions which he gave to Ms Radimonaite about the Claimant’s future duties. Regardless of whether the claimant was actually satisfied with the outcome, and regardless of whether it was reasonable for Mr Cowlard to believe that the matter was concluded, we are satisfied that the respondents does not possess the notes which Mr Cowlard took on 11 January 2022.[57]The claimant says that there is a relevant difference between her treatment and that of a colleague Eleonora. On the claimant's case Eleonora had a meeting the day after she supplied a letter to the Respondent stating that she would require amended duties. To the extent that the Respondent argues that there is no difference in the Claimant’s treatment because the Claimant also had a meeting straight away after the 10 January 2022 letter and because, according to the respondent the 10 January 2022 letter was the first request for a meeting, we reject that particular argument. It is plain from the 3 January 2022 letter that the claimant is complaining that a meeting has not yet been arranged.[58]However, we do accept that there were other relevant differences in the factual circumstances. It was comparatively easier to a range a meeting with Eleonora because there were three or more suitable managers who worked the same shift (which was during daytime) as Eleonora. However, there was only one, Mr Cowlard, whose working time overlapped with the Claimant. Other than arranging a meeting with Mr Cowlard, the only other possibilities would have been to either ask the Claimant to attend a meeting outside her normal working hours, or to ask a manager to do so.[59]Furthermore, to the extent that the Respondent argues that the December is a particular busy time of year for the retail industry, while that not necessarily a good reason to delay a meeting with an employee about the employees made for amended duties, we do accept that that was potentially a contributory factor to the meeting not taking place in December. However that does not explain why, in December, the meeting could not have been fixed to take place in January or the failure to act more quickly in response to the 3 January letter. That being said, we accept Ms Jeffery’s account that she acted promptly upon Page 13 of 54 becoming aware of the matter to ask Mr Cowlard to meet. In terms of Mr Cowlard, from the information available to us it seems that he attended the meeting as soon as he was asked to do. Ms Radimonaite had nothing to do with the timing of the meeting.[60]The Claimant alleges that, on 24 February 2022, Ms Radimonaite said to the Claimant to get back to work.[61]It is unclear why the Claimant has the date of this particular allegation, but not of others alleged interactions between her and Ms Radimonaite. The Claimant’s account is that she was not working at the time (although not on a rest break) and nor were the two colleagues with whom she was having a conversation.[62]In Ms Radimonaite’s statement, she says: 18 There are occasions during a shift where colleagues stand and chat. It's my job to remind these colleagues that we have targets to meet, and we need to carry on working if these colleagues are standing and chatting for too long. I recall Ms Bajorska standing and chatting in a group and I asked the whole group politely to go back to work. I did not at any point single Ms Bajorska out and only tell Ms Bajorska to go back to work.[63]It is not possible for us to know (because Ms Radimonaite does not know) if she is describing an incident on 24 February 2022. It is not impossible that there were two (or more) different occasions on which Ms Radimonaite told the Claimant to get back to work. It is also not impossible that there was only one such occasion. We do accept that, on the occasion that Ms Radimonaite recalls, she thought that the social conversation had lasted long enough, and it was time for her to tell the people to go back to work, and that - regardless of whether she used individual names for the Claimant or anybody else – she was making clear that she intended all of the group to resume working.[64]On 28 February 2022, the Claimant obtained another Fit Note. This referred specifically to the condition which the Respondent admits is a disability. It said that for the period 26 February 2022 to 25 March 2022, the Claimant was fit to work with amended duties (this was the only one of the 4 pre-printed boxes that were ticked) and with “no heavy lifting”.[65]Around 25 March 2022, the Claimant (with her husband translating) raised concerns with HR about the fact that reasonable adjustments had not been made, and about the way in which Mr Cowlard had conducted the 11 January meeting [Bundle 119]. The same day, the Claimant was invited to a meeting with Ms Jeffery [Bundle 122] to take place on 31 March 2022.[66]That meeting took place on 31 March 2022 (the notes on [Bundle 123] are incorrectly dated) and the Claimant was accompanied by Ms Kasińska-Jadczak who translated. Ms Jeffery was accompanied by Mette Smith of HR. Page 14 of 54[67]Ms Jeffery’s introductory remarks included: We are concerned that you have had several occasions over the past few years of a reoccurring medical condition and are holding this health review meeting to gain a better understanding of your situation. How best we can support you whilst you are at work, and whether we need to refer you to Occupational Health.[68]During the meeting, the Claimant showed photographs of herself to Ms Jeffery with the intention of demonstrating the severity of her condition during times of flare up. She also showed various medical letters. They discussed the medication that the Claimant was taking, including its benefits and side effects.[69]Towards the end of the meeting, the Claimant stated: I feel going forward I want you to follow the recommendation by the doctor. I wanted to be treated fairly. Doctor has said so unusual illness so don’t have special tab in which they can put amended duties which is why they put heavy lifting. Physically its not possible to put anything else. I believe OH will be helpful as the doctor can give description and advice on how to deal with it. If you follow the first amended duties and the advice that doctor gave to avoid stress.[70]On 3 April 2022, the Claimant sent a letter stating that it was a complaint about unfair treatment. [Bundle 127]. It made no reference to Ms Radimonaite. It included a repeat of an alleged timescale that had been mentioned to Ms Jeffery on 31 March 2022, namely: I was granted a Light Duties letter by my doctor. That was completely ignored by my Management for nine weeks.[71]Our finding is that the Claimant was intending to refer to the period starting around 17 December 2021 when she supplied Dr Raza’s second letter to the Respondent.[72]On 4 April 2022, the Respondent wrote to the Claimant to confirm that, as discussed on 31 March 2022, there would be a referral to Occupational Health [Bundle 128].[73]Mette Smith also wrote to the Claimant around the same date [Bundle 129] stating: I write to confirm receipt of your letter dated 03/04/2022 which sets out your grievance. Your grievance will be dealt with in accordance with our Grievance Procedure, which is set out in the Discipline, Performance and Grievances Policy. I acknowledge we held a grievance hearing on 25/03/2022 to clarify the issues you have raised and to enable us to investigate the matter fully.[74]That policy is in the bundle. It includes: Page 15 of 54 7.1 We will arrange a grievance meeting, normally within 2 weeks of receiving your written grievance. 7.5 We will write to you, usually within 1 week of the final grievance meeting, to inform you of the outcome of your grievance and any further action that we intend to take to resolve the grievance. We will also remind you of your right of appeal. Where appropriate we may hold a meeting to give you this information in person.[75]Mr Walsh was the person appointed to deal with the grievance. As notified by Ms Smith’s letter, the meeting between the Claimant and Mr Walsh took place on 21 April 2022. Ms Kasińska-Jadczak accompanied the Claimant and acted as an interpreter.75.1 The Claimant said she had been picked on by management. On being asked for examples, several were about Ms Jeffery. Two were in relation which shift the Claimant was put on at the start of the Claimant’s employment and to resumption of work after Covid lockdown.75.2 The third was delays in approving the Claimant’s leave that she had applied. The Claimant believed that Dawid would approve it, but then he had told her Ms Jeffery had to do so.75.3 The Claimant then referred to pay issues for the first 6 month of employment.75.4 The Claimant stated that she had given information about her medical condition to Ms Jeffery at the start of her employment. She also said that, in the run up to the TUPE transfer, she had been asked by Dawid to supply medical information.75.5 She then referred to the request made in December 2021 for amended duties and to her assertion that this had been ignored. She gave her version of the meeting with Mr Cowlard on 11 January 2022, including that Mr Cowlard told her that Ms Jeffery had given him the wrong start time.75.6 Mr Walsh asked about the Claimant’s ability to speak English. She replied that when stressed she had a problem but she could understand sometimes.75.7 There were no allegations about Ms Radimonaite.[76]Mr Walsh interviewed Ms Jeffery on 28 April 2022 [Bundle 143.1].76.1 Consistently with her evidence to the Tribunal, Ms Jeffery denied that she had been aware of the full circumstances of the effects of the Claimant’s condition until the 31 March 2022 meeting, asserting that the Claimant had not had time off because of it.76.2 Mr Walsh put each of the Claimant’s comments to Ms Jeffery. Page 16 of 5476.3 In relation to duties, Ms Jeffery commented on the fact that on the night shift, there were limited options because not all duties were available from 10pm to 6am. Some were not available at all during that time, and other activities stopped part way through the night shift.[77]No later meeting notes appear in the bundle. On 28 June 2022 [Bundle 144], Mette Smith wrote to the Claimant to say that the outcome meeting would be 1 July 2022.[78]The Claimant replied [Bundle 153] to say that her companion/translator could not make that day. In further correspondence, the Claimant suggested 6 July.[79]This did not go ahead. On 20 July 2022, the Claimant said that because of her own holidays and Ms Kasińska-Jadczak’s holidays, one option was for the Respondent to allow Mr Ligocki (who was no longer employed by the Respondent by this date) to act as her companion/translator, but otherwise she could not meet until after 5 September 2022.[80]On 24 August 2022, the Respondent confirmed 8 September 2022 as the outcome meeting. [Bundle 156][81]On 6 September 2022, the Claimant submitted a request for reduced hours [Bundle 158].[82]The grievance meeting was postponed because Mr Walsh was unwell on 8 September 2022. He was then on leave. It was rescheduled for 6 October 2022 but he could not make that date and so it took place on 12 October 2022.82.1 The Claimant was accompanied by Ms Kasińska-Jadczak.82.2 Mr Walsh was accompanied by Briony Winther of HR.82.3 The notes are [Bundle 191] and largely consisted of reading the outcome letter, which Ms Kasińska-Jadczak translated for the Claimant.82.4 The Claimant raised the fact that she had not had a response to her flexible working request. Ms Winter replied that it had already been approved and that the Claimant ought to have been informed.82.5 Mr Walsh asked the Claimant who was her manager and she said she did not know. Ms Kasińska-Jadczak said that Ms Radimonaite was the Supervisor. This was the only mention of Ms Radimonaite.82.6 Mr Walsh agreed to look into why the Claimant had not yet received details about the approval of the flexible working request. Page 17 of 54[83]The Claimant and Ms Winther exchanged correspondence about the matter after the meeting, with Ms Winther informing the Claimant, on behalf of the Respondent, that the arrangement would commence from the end of October.[84]The outcome letter is dated 12 October 2022 [Bundle 185][85]In relation to amended duties, and the December 2021 request, the outcome was: Response In checking your file, it is clear you have provided us with medical notes for your condition. Although your condition … is stated, and although a welfare meeting did take place in an informal setting, I do not believe the adequate amended duties were undertaken and feel further discussions on what these amended duties could look like and a referral to Occupational Health at the time would have been beneficial. My findings show that Teresa Jeffrey didn't know about the full extent of your medical condition and that your husband had explained to her you had a medical condition but not the seriousness of it and that Teresa Jeffrey gained a better understanding of your situation during the welfare meeting you had with her on 31st March 2022. You have several letters on your file which confirm you should be exempt from wearing a face mask … and this was actioned. You also mentioned you had an issue with your hands which meant you could not wear gloves and that you could not work on packing or hanging. We accommodated this request. Your amended duties were discussed with you and amendments were put in place, however as your notes continuously stated the same condition and due to your note expiring you did not have another meeting with management until 11th January 2022, which was with Chris Cowlard. Your doctor also stated in your letter dated 8th June 2021 that although trying to treat your condition, it is unpredictable and you would benefit from support from your management team. On the 17th December 2021 you provided another letter which stated you were relapsing due to a stressful situation at work following a situation on 13th December 2021 and your doctor recommended further stressful situations are to be avoided. During your meeting it was discussed that the amended duties you were requesting were not available on your current shift, however we could potentially offer you a different shift working on IHF (Ecom) as they work from 1600-0000 which would then support your amended duties, however you would need to change your shift times as IHF only work until 01:00 and you finish your shift at 0600, which you did not want to accept as you are unable to work during the day (17:00). Statement upheld You have a total of 14 doctors notes on your file regarding your condition … dating back to 1st October 2018. I believe that if you had had a welfare meeting following on from your first diagnosis, we would have been able to come up with a plan for lighter duties and alleviate your levels of stress at work. I can confirm you had a welfare meeting with Chris Cowlard on 11th January 2022 which allowed for amendments to be put in place, and you had another welfare meeting on 31st March 2022 with Teresa Jeffry in which you were referred to occupational health. We have received the Occupational Health report and I can confirm that you met with Teresa Page 18 of 54 Jeffrey on 7th September 2022 to discuss the report and the recommendations from the Occupational health advisor. Amended duties were discussed and have been communicated to all the management on your department with immediate effect from 7th September 2022. On the back of the occupational health recommendations, Charlotte Fitzgerald, Health and Safety Advisor, also held a Stress Standards at Work assessment with you on 4th October 2022 and confirmed that you discussed talking with your management team about job rotation, creating a plan of action on who you best feel comfortable talking to and that incidents which cause you to feel unsafe or stressed in the workplace must be reported so that the Health and Safety team can respond and react accordingly. Charlotte Fitzgerald has arranged a follow up meeting with you in 3 months to see how you are getting on. Actions• To continue to work on the agreed amended duties and update your management team if you feel things need changing• To provide any future doctors notes to management and HR as soon as you have received this from your doctor so that we can ensure we are supporting you as best as we can• To remove yourself from stressful working situations and inform management when you feel the environment is affecting you• To report any situations or incidents which cause you to feel unsafe or stressed to the Health and Safety advisor and management[86]A complaint about “managers” treating the Claimant badly because of the Claimant’s “knowledge of the English language” was not upheld. Mr Walsh had not looked into Ms Radimonaite specifically, because the Claimant had not mentioned her name. He had interviewed Ms Jeffery and been told by Ms Jeffery that Dawid was able to communicate with the Claimant in Polish.[87]Our finding is that this assessment by Mr Walsh was factually accurate as to the Respondent’s intended approach to all employees, not just the Claimant: There are many different languages spoken by colleagues on site and they will continue to be available to assist but the main communicative language is English and the management team do need to provide the same instruction to everyone and this is done via the English language with translators assisting where needed.[88]As part of his conclusion, he wrote the following sentence which we find represented his genuine opinion. I conclude there have been errors and misjudgement by management in some of the situations you have raised and that it has taken too long to discuss your amended duties and hold welfare meetings to follow up your fit notes.[89]He also expressed the opinion that matters had been resolved by the OH report. This is a reference to [Bundle 311]. The Claimant’s consultation was on 4 May 2022, and the report was the same day. Page 19 of 5489.1 The report, under “current health status” does not seem to address the full effects of the Claimant’s condition during times of flare up.89.2 It gave the opinion that there was “no requirement for a permanent change to her job duties”. It acknowledged that the Claimant’s GP had made recommendations.89.3 After that, on around 8 June 2022, the Claimant was seen by Dr Raza. His 20 June 2022 letter was copied to Occupational Health. It does not appear that Dr Raza had seen the 4 May 2022 letter, or that he knew specifically what it said, though the Claimant had told him that a report had been produced.[90]On 26 August 2022, Mette Smith wrote to the Claimant to ask her to attend a meeting with Ms Jeffery on 7 September 2022, to discuss the Occupational Health report. This was the 4 May report, though the date is not stated in the letter. [Bundle 157][91]These dates had been agreed by the Claimant on 11 August [Bundle 147] following Mette Smith’s 27 July 2022 query. As mentioned above, the Claimant’s 20 July 2022 letter had offered to meet the Respondent sooner if they would allow her husband to accompany her. There is nothing in the bundle or in Ms Jeffery’s written statement to explain what attempts, if any, had been made to meet the Claimant in May or June. Our finding is that there were no such attempts. Ms Jeffery’s oral answers in cross-examination refer to the discussion which ensued between the Claimant and HR which commenced only after the invitation (sent 28 June 2022) to the grievance outcome meeting. We are not satisfied that the Claimant was unable to meet Ms Jeffery (or another manager able to make relevant decisions about amended duties) after 4 May and before 28 June, or that there was any attempt to arrange such a meeting.[92]The meeting did take place on 7 September 2022. The Claimant was accompanied by Ms Kasińska-Jadczak. The Claimant explained that she was not satisfied with her current work allocation which was “put to stores”. She wanted to be on rotation instead, so long as that did not include hanging, which she was still unable to do.[93]After the meeting, Ms Jeffery sent an email to (amongst others) Dawid Cison and Ms Radimonaite and also copied it to HR and (as agreed with the Claimant) to the health and safety adviser (Charlotte Fitzgerald).[94]The email said: Following a Welfare Meeting today with Karolina as a result of an Occupational Health Assessment can you please make the following adjustments with immediate effect: Page 20 of 54• Karolina is to have job rotation as frequent as possible to reduce the amount of time that is spent picking in PTS ( which is the main area that causes her stress and triggers her ongoing medical condition )• Please use Karolina as a first option when staff are requested for other areas in the business• Where possible please keep Karolina picking WEB until that is exhausted and PTS is the only available option of work Please ensure you are all following this advice as it has been stated that previous recommendations have notbeen followed thus adding to her stress. In addition to the above it was advised that our Health & Safety advisor would carry out a formal Stress Risk Assessment which Charlotte will arrange. Thank you all for your assistance and co-operation with this request.[95]The Claimant met Ms Fitzgerald on 4 October 2022 [Bundle 169] and they developed a wellness action plan.[96]In terms of the flexible working request, what Mr Walsh and Ms Winther told the Claimant at the meeting on 12 October 2022 was correct as far as they knew. On 5 October, Ms Winther had asked about it and been told by Mr Cowlard that the Claimant was already working the new arrangements. [Bundle 202]. This was not an exchange cc’ed to Ms Radimonaite. Ms Winther and Mr Walsh sought confirmation of whether the Claimant had been given details in writing. She had not. On 21 October 2022, Mr Cowlard confirmed to Ms Winther and Mr Walsh that, prior to 12 October, the Claimant had not been told – orally or in writing – that her request to change shifts had been approved. His reply did not say when, or if, Ms Radimonaite had been made aware, or when, or if, Ms Radimonaite had been asked to communicate the information to the Claimant.[97]On 24 October 2022, the Claimant submitted a grievance appeal. [Bundle 208]97.1 The Claimant confirmed that on the day of the meeting (so 11 January 2022), Mr Cowlard had said that his choice of location was because of Covid restrictions.97.2 Although Ms Radimonaite is mentioned indirectly (referred to as “Key Worker”), it is not in the context of making a complaint about her actions, but rather commenting on her presence on 11 January 2022.97.3 The complaints about her “supervisor” in that document were about Dawid Cison’s alleged actions, not about Ms Radimonaite’s.[98]By email dated 31 October [Bundle 210], she was informed that Ms Jacobsen would deal with the appeal, and asked about meeting on Wednesday 2nd or Thursday 3rd November 2022 (the email contained a typo for the month, but the meaning was clear from the context). Page 21 of 54[99]The meeting went ahead on 3 November. The Claimant was accompanied by Ms Kasińska-Jadczak and Ms Jacobsen by Laura Kenyon. The notes are [Bundle 213].99.1 In the meeting, the Claimant made a reference to a manager allegedly having said that she, the Claimant, would be sent home if there were no light duties. (This seems to be an allegation against Mr Cowlard rather Dawid Cison; either way, it does not relate to Ms Radimonaite).99.2 She said that she was not currently on amended duties.99.3 Ms Kasińska-Jadczak said Her biggest issue is with Arune, they can't get on99.4 After commented that there was nothing about Ms Radimonaite in the letter, Ms Kasińska-Jadczak suggested that the comments about language barrier, and how Key Worker, Able, showed patience, had been intended as references to Ms Radimonaite allegedly not showing patience.99.5 The Claimant referred to there having been 3 periods of light duties, which aggregated to 16 weeks.99.6 The fact that the Claimant had contacted ACAS (in September) and that the Respondent knew this was raised by the Claimant and she was assured that would not affect the treatment she received from the Respondent.[100]On 11 November, Ms Jacobsen wrote to the Claimant. The Claimant’s leave requests had featured heavily in the grievance and appeal discussions, and the letter commented on that. It also gave her some general information and sources of further information. In particular, the Claimant was told about a new manager who would be dealing with the night shift.[101]The appeal meeting continued on 15 November. [Bundle 220]101.1 Having discussed the Claimant’s meeting with Mr Cowlard again, the Claimant was asked for examples of being treated unfairly. She gave an example of Ms Radimonaite giving her a job via a third party.101.2 She also stated: Then a situation with Arune yesterday, she [Ms Radimonaite] thought she [the Claimant] had make a mistake picking. She [the Claimant, being referred to in third person by Ms Kasińska-Jadczak] was surprised after 2.5 years she has taken an [interest]. Page 22 of 54101.3 The Claimant was asked if she wanted a meeting with Mr Cowlard or Ms Radimonaite to discuss matters. She implied it would make her ill. She also said she would only do it if her lawyer could attend.[102]On 28 November, Ms Jacobsen interviewed the Claimant and we take the contents of the notes [Bundle 224] into account.[103]The same day, Ms Jacobsen interviewed Ms Radimonaite and we take the contents of the notes [Bundle 227] into account. This includes: MJ How do you communicate with her? AR Very basic really, if she makes mistakes I will try and speak to her, if we have meetings then I communicate through another colleague AND MJ If there is anything we can do to support then please let us know. Going back, I just want to touch on her medical condition and how we as managers are looking after her and what causes her flair us and how they are managed. The date we were first told about it was 1st October 2018, suffering from a condition which can be quite serious. What support has she been getting and what the amended duties were from the outcome of her Occ Health meeting in Sept this year. AR I received an email from Teresa, saying we need to action keeping Karolina out of put to store as much as possible as it was causing her stress. So we kept her out of the department, it wasn’t always possible, it is much more often now. She would pick on zone 5 or 4, not isolated but separated so to keep her calm, not stressed. Many many times we have used her to print labels, not even picking, or she is going to IHF.[104]That meeting lasted from 22:00 to 22:40. Less than 2 hours later, just after midnight, Ms Radimonaite informed HR (with copy to Mr Cowlard) that the Claimant had supplied a Fit Note and that, as a result, she would be on amended duties for 3 months from 28 November 2022.[105]As mentioned earlier, the claim was presented to the Tribunal on 6 December 2022. The Law Equality Act 2010 (“EQA”)
The Law
[106]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act. Page 23 of 54(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.[107]It is a two stage approach.107.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.107.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.[108]In Efobi v Royal Mail [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International [2007] EWCA Civ 33.[109]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.[110]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.[111]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights 2010 EWCA Civ 1279. For example - depending on Page 24 of 54 the facts of the case - an evasive or untruthful answer from a respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services EAT 0074/19.[112]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors [2022] EAT 68 and of the fact that several subsequent EAT decisions have cited those comments with approval.[113]As per Essex County Council v Jarrett [2015] UKEAT 0045/15/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.113.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation.113.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust [2024] EAT 17.113.3 We assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints[114]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— Page 25 of 54 (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it[115]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks ([2002] EWCA Civ 1686; [2003] ICR 530); Lyfar v Brighton and Hove University Hospitals Trust [2006] EWCA Civ 1548. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents: Aziz v FDA 2010 EWCA Civ 304. The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed.[116]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors.[117]The Tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike, say, the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it is wrong to interpret it as if it contains such a list. A tribunal can consider the list of factors specified in s 33(3) of the Limitation Act 1980, but if it does so, should only treat those as a guide, and not as something which restricts its discretion.[118]The factors that may helpfully be considered include, but are not limited to:118.1 the length of, and the reasons for, the delay on the part of the claimant; Page 26 of 54118.2 the extent to which, because of the delay, the evidence is likely to be less cogent than if the action had been brought within the time limit specified in Section 123;118.3 the conduct of the respondent after the cause of action arose, including the extent (if any) to which it responded to requests for information or documents[119]In particular, it will usually be important for the Tribunal to pay attention to (and, where necessary, make specific findings about) “whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. Definition of Direct Discrimination – section 13 EQA[120]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[121]There are two questions: whether the respondent has treated the claimant less favourably than it treated others (“the less favourable treatment question”) and whether the respondent has done so because of the protected characteristic (“the reason why question”).[122]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College [2024] EAT 22 provide a recent and clear summary of the types of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.[123]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions.[124]The mere fact alone that a respondent, or a particular individual, has behaved unreasonably and/or treated the claimant badly or unfairly will not, in itself, be sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However: Page 27 of 54124.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.124.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently.124.3 Where the Respondent offers an explanation for the Claimant’s treatment (and/or the differences between the Claimant’s treatment the alleged comparator’s treatment), then the burden of proof might shift where the Tribunal decides that the explanation is dishonest, and/or if different explanations have been put forward which are contradictory to each other.[125]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. However, the less favourable treatment question and the reason why question are intertwined.[126]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions.[127]The Respondent's representative drew attention to Dziedziak v Future Electronic Ltd UKEAT/0270/11. The decision included: 43. That leaves us with the final matter that we have to determine, a cross-appeal as to the decision as to racial discrimination. The Tribunal set out the allegation made at paragraph 5. It came to its conclusion as to that allegation at paragraph 88. The allegation, materially, was that at the end of October 2008 the Claimant, who is Polish, was having a work-related conversation at work with a colleague in Polish. She was called to a meeting shortly afterwards with her line manager. He reprimanded her for speaking Polish; a colleague in the office had complained that that was distracting to her. She identified the person who might have complained, with whom, it appears, there was some evidence that there was a personality conflict. The Tribunal concluded: “88. The Tribunal has found that the Claimant was instructed not to speak in her own language and has thereby established facts from which the Tribunal could conclude she had been subjected to discrimination on grounds of her Polish nationality. The Respondent has not provided an adequate explanation. It was clear on the evidence heard by the Tribunal that Page 28 of 54 employees of other nationalities were not subjected to the same restriction as that imposed on the Claimant. The instruction to her to desist from speaking in her mother tongue was given to her by Mr Keshvara, her line manager, in the course of his employment with the Respondent.”46. [Claimant’s counsel, rightly, in our view, notes that a Tribunal has considerable discretion as to how it determines the facts. We would emphasise that a Tribunal faced with an allegation of discrimination is entitled to determine how it sees the facts and to place them in a proper context. Much may depend upon precisely how it does so. Here, the opening words of paragraph 88 are of importance. They were not that the Claimant was instructed to speak in English, and they were not that the Claimant was instructed not to speak Polish; they were that the Claimant was instructed not to speak in her own language. That is how the Tribunal saw it. The use of the words “own language” shows a link, which is an intrinsic link, with nationality. As is well recognised in cases of direct discrimination, there are some labels or descriptions that include within themselves the fact of difference on the ground of race or, as it may be, sex.47. We are satisfied that the Tribunal here were finding by use of those words that the Claimant was discriminated against by something that was intrinsically part of her nationality. Given the evidence that no other person had been so directed, there was evidence of an actual comparator in the workplace. The fact that she was told not to speak her own language is capable of amounting to a detriment, and so, implicitly, the Tribunal found. The requirements therefore of the Race Relations Act 1976, section 1, were made out: [citation omitted]48. There could have been an explanation that might have satisfied the Tribunal this was not on racial grounds, but there was not. Given a difference in treatment linked to race to the detriment of an individual, the burden is capable of passing, and we see nothing inherently wrong in law in the Tribunal concluding therefore that the Respondent was required to provide an explanation, which, because the Respondent did not do, the Respondent was found to have discriminated against on this basis. What we have said of course leaves to the Tribunal the task of determining what is appropriate compensation; to do that, it will inevitably have to determine how significant and serious a breach in context this truly is.[128]In other words, the EAT was satisfied that the fact that someone’s main language is(i) a language other than English and(ii) is the language spoken in the country of which they are a national is something intrinsically related to their nationality. Thus, facts which show that a person might have been treated badly for speaking their “own language” are capable of shifting the burden of proof.[129]We agree with the Respondent's representative that what the EAT looked at in that case was not an allegation that it was direct race discrimination if a person was treated less favourably because they did not speak English as fluently as their comparator.[130]We also note the following comments in Sheffield City Council v Norouzi UKEAT/0497/10 including the cross-reference to Richmond Pharmacology v Dhaliwal UKEAT/0458/08. In Dhaliwal, the complaint being analysed was harassment only, and in Norouzi, harassment was one of the complaints being analysed. However, the relevant wording of the legislation at the time (for Page 29 of 54 “element 3” as the EAT described it in Dhaliwal) required a decision about whether the conduct was “on grounds of race”.32. … the Claimant told the Tribunal (presumably in cross-examination) that he accepted that A would have mocked any strong accent that she detected in those working with her “if she thought it would have the desired effect” – i.e. to rile them: it had indeed found elsewhere that she was adept at targeting the vulnerabilities of staff. [Appellant’s counsel] submitted that on the basis of that evidence the Tribunal should have found that A was not racially motivated.33. This submission seems to us … misconceived. A was in fact mocking a racial characteristic of the Claimant, namely his “foreign” accent. That being so, the fact that her underlying motive was not to do with his race – say, to upset those in authority – is irrelevant. In Dhaliwal (above), we said this …: “It is … worth observing that, although establishing the reason why a respondent in a discrimination case acted in the way complained of typically involves an examination of the “mental processes” … of the decision-taker, that is not always so. In some cases, the “ground” of the action complained of is inherently racial. The best-known example in the case-law … is the decision of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 ([1990] ICR 554). In that case the criterion applied by the Council inherently discriminated between men and women, and no consideration of the thought processes of the decision-makers was necessary: the application of the inherently discriminatory criterion could without more be identified as “the reason why” the plaintiff had suffered the detriment of which she complained. It is only because in most cases the detriment complained of does not consist in the application of an overtly discriminatory criterion of that sort that the “reason” (or “grounds”) for the act has to be sought by considering the respondent’s motivation (not motive). It seems to us particularly important to bear that point in mind in harassment cases. Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.” To mock a racial characteristic seems to us plainly analogous with overtly racial abuse.[131]The logic that having a “foreign” accent was a racial characteristic would apply equally to speaking a “foreign” language. Indirect discrimination[132]Section 19 EQA states, in part: 19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— Page 30 of 54 (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[133]Race is one of the protected characteristics listed in section 19(3).[134]The phrase “provision, criterion or practice” is commonly abbreviated to “PCP”. It is not separately defined in the Equality Act 2010. Tribunals must interpret it in accordance with guidance in the EHRC Code and in appellate court decisions.[135]In Nottingham City Transport Ltd v Harvey UKEAT/0032/12, the EAT held that the word practice has something of the element of repetition about it, and if related to a procedure, should be applicable to others as well as the complainant.[136]In Onu v Akwiwu; Taiwo v Olaigbe [2016] UKSC 31, the Supreme Court pointed out that a PCP must apply to all employees and that a practice of mistreating workers specifically because of a protected characteristic, or something closely connected to the protective characteristic, would not fall within the definition of PCP because it would necessarily not be applied to individuals who were not so vulnerable. Further, in James v Eastleigh BC [1990] HL/PO/JU/18/250, the policy was, at first sight, neutral between the sexes, but, on proper analysis the qualification criteria was so closely linked to sex that it amounted to direct, rather than indirect, discrimination.[137]The PCP does not have to be a complete barrier preventing the claimant from performing her job for section 19 to be triggered. Furthermore, a PCP might be “applied” even if the employee is not necessarily disciplined or dismissed if they fail to meet the requirement. In Carreras v United First Partners Research, the EAT concluded that an expectation or assumption that an employee would work late into the evening could constitute a PCP, even if the employee was not “forced” to do so.[138]There are two aspects to the “particular disadvantage” limb of the test for indirect discrimination.138.1 that the PCP puts (or would put) persons who share the claimant’s protected characteristic at a particular disadvantage when compared with persons who do not share it. So a female claimant needs to show that the PCP puts women at a particular disadvantage when compared with men. This is sometimes referred to as “group disadvantage”.138.2 that the claimant must personally be placed at that disadvantage. Page 31 of 54[139]The word “disadvantage” is not specifically defined in the Equality Act 2010. The Code of Practice suggests that disadvantage can include denial of an opportunity or choice, deterrence, rejection or exclusion. A person might be able to show a particular disadvantage even if they have reluctantly complied with the PCP in order, for example, to avoid losing their job. The EAT in XC Trains Ltd v D UKEAT/0331/15/LA held that it was sufficient that the PCP (the employer’s rostering arrangements, in that case) caused the claimant “great difficulty” in meeting her obligations.[140]If the PCP is shown to exist and to place persons with the relevant protected characteristic, and the claimant herself, at a particular disadvantage, the burden of proof switches to the respondent to show that the PCP is nevertheless a proportionate means of achieving a legitimate aim.[141]The “legitimate aim” of the PCP should not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.[142]Reasonable business needs and economic efficiency may be legitimate aims. However, a discriminatory rule or practice will not necessarily be justified simply by showing that the less discriminatory alternatives cost more.[143]Once a legitimate aim has been established, the tribunal must consider whether the discriminatory PCP is a proportionate means of achieving that aim.[144]In Homer v Chief Constable of West Yorkshire [2012] UKSC 15; at paras 22 - 23 of Baroness Hale’s judgment: Although the regulation refers only to a “proportionate means of achieving a legitimate aim”, this has to be read in the light of the Directive which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question: thus, for example, the aim of rewarding experience is not achieved by age related pay scales which apply irrespective of experience (Hennigs v Eisenbahn-Bundesamt (Joined Cases C297/10 and C-298/10) [2012] 1 CMLR 484); the aim of making it easier to recruit young people is not achieved by a measure which applies long after the employees have ceased to be young (Kücükdeveci v Swedex GmbH & Co KG (Case C-555/07) [2011] 2 CMLR 703).... 23 A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate.[145]Tribunals considering whether a PCP is a proportionate means of achieving a legitimate aim must undertake a comparison of the impact of the PCP on the affected group as against the importance of the aim to the employer. Page 32 of 54[146]The tribunal must consider whether there are less discriminatory alternative means of achieving the aim relied upon. However, the existence of a possible alternative non-discriminatory means of achieving the aim of a measure or policy does not, in itself, make it impossible for the respondent to succeed in justifying a discriminatory PCP. The existence of an alternative is only one factor to be taken into account when assessing proportionality.[147]The tribunal must make an objective determination and not (for example) apply a range of reasonable employers test. Tribunals must actively assess the legitimacy of the employer’s reasons for the refusal to see if the reasons can be objectively justified. Having an apparently sound business reason for the PCP is not sufficient in itself. The Tribunal has to decide whether the need for the PCP is weighty enough to overcome any indirectly discriminatory impact. In particular, the Tribunal has to consider whether there are any alternatives that would achieve the same aim without being as disadvantageous to an individual.[148]In Hardy & Hansons plc v Lax [2005] EWCA Civ 846, the Court of Appeal discussed a case which they introduced as follows: “The scenario is a familiar one. A full-time female employee acquires child rearing responsibilities and applies for a job sharing arrangement in the same employment.” In discussing what is now section 19(2)(d), the court said:32. [it] requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry) and I accept that the word "necessary" used in Bilka is to be qualified by the word "reasonably". That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court Page 33 of 54 in Allonby and in Cadman, the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.[149]The defence to a section 19 claim can, in principle, rely on a legitimate aim which was not in fact the reason for imposing the PCP at the relevant time. Failure to make reasonable adjustments,[150]Section 20 defines the duty. S.21 and schedule 8 also apply. 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. Page 34 of 54 (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. Schedule 8, Part 3, paragraph 20: Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[151]The expression “provision, criterion or practice” (usually shortened to “PCP”) is not expressly defined in the legislation. We have regard to the guidance given by EHRC to the effect that the expression should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, pre-requisites, qualifications or provisions.[152]The Claimant must clearly identify the alleged PCPs to which the adjustments should have been made. The tribunal must only consider those PCPs as identified. See Secretary of State for Justice v Prospere [2015] UKEAT 0412/14/3004.[153]An expectation that employees ought to behave in a certain way, and that doing otherwise would be frowned upon, can potentially be sufficient to show there is a PCP, even if the employer did not enforce the expectation by any formal sanction.[154]It is also important to distinguish between the application of a PCP and any adjustment that may be in place to ameliorate the effect of it on the Claimant. If adjustments have been made for the Claimant, that does not, in itself, prove that there was no PCP.[155]As discussed above in relation to section 19, the word practice has something of the element of repetition about it, and if related to a procedure, should be applicable to others as well as the complainant. As per Ishola v Transport for London [2020] EWCA Civ 112, one off decisions made for individual employees might demonstrate that there is a PCP, provided the Tribunal is satisfied that there is sufficient evidence that the employer would take a similar approach in the future.[156]As discussed above in relation to section 19, Onu v Akwiwu; Taiwo v Olaigbe, the Supreme Court pointed out that a PCP must apply to all employees, or all Page 35 of 54 employees in a subset at least, and that a practice of mistreating workers specifically because of a protected characteristic, or something closely connected to the protective characteristic, would not fall within the definition of PCP because it would necessarily not be applied to others.[157]When considering whether there has been a breach of s.21 we must precisely identify the nature and extent of each disadvantage to which the Claimant was allegedly subjected. Furthermore, we must consider whether there is a substantial disadvantage when the relevant alleged PCP is applied to the Claimant in comparison to when the same PCP is applied to persons who are not disabled.[158]The Claimant has the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred that the duty may have been breached. If she does then we need to identify the step or steps (if any) which the Respondent could have taken to prevent the Claimant suffering the disadvantage in question, or to reduce that disadvantage. If there appear to be such steps, then the burden is on the Respondent to show that the disadvantage could not have been eliminated or reduced by such potential adjustments or, alternatively, that the adjustment was not a reasonable one for it to have had to make.[159]The Tribunal should take into account everything that is relevant when assessing reasonableness. The EHRC Code provides some guidance and examples. The type of factors that can be looked at include, but are not limited to:159.1 the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step)159.2 the extent to which it was practicable for the employer to take the step159.3 the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities159.4 the extent of the employer’s financial and other resources159.5 the availability to the employer of financial or other assistance in respect of taking the step159.6 the nature of the employer’s activities and the size of its undertaking[160]There is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the Claimant had the disability. Page 36 of 54[161]Furthermore, in relation to a particular disadvantage, there is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the PCP would place the Claimant at that disadvantage. Contraventions of EQA and liability for them[162]Section 39 makes it a contravention of the act if (amongst other things) an employer discriminates against an employee.[163]Section 109 EQA addresses which acts/omissions are treated as done by an employer for the purpose of (amongst other things) section 39 EQA. Section 110 deals with the personal liability of employees for their acts/omissions. 109 Liability of employers and principals (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. …. (3) It does not matter whether that thing is done with the employer's … knowledge or approval. (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A- (a) from doing that thing, or (b) from doing anything of that description. 110 Liability of employees and agents (1) A person (A) contravenes this section if- (a) A is an employee …, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer …, and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).[164]Often, and as in this case, when a claimant brings a claim against their employer or former employer, the employer is a legal person, a company, rather than a natural person, an individual human being.[165]The decisions, however, are made by individuals. That includes matters which are very clearly and explicitly done in the name of the employer, as well as situations in which the individual might appear to be expressing their own views, rather than those of the corporate body. Page 37 of 54[166]For many alleged detriments, there will be no difficulty in identifying the decision maker or makers. For example, a particular person might have communicated the employer’s decision to the claimant, and there might be no dispute, from the claimant (and no suggestion from the respondent) that the decision-maker was anybody else.[167]There can also be circumstances in which people other than the ostensible decision maker are involved in the decision making process. That could be people providing neutral advice (such as an HR expert) and/or it could include people providing (allegedly) factual information about the claimant. In such cases, it might be necessary to carefully analyse who did what and why as part of the process leading to the detriment/dismissal.[168]Referring to the decision of the Court of Appeal in Reynolds v CLFIS (UK) Ltd [2015] ICR 1010, in Commissioner of Police of the Metropolis v Denby UKEAT/0314/16 the EAT commented: The ratio of CLFIS is simple: where the case is not one of inherently discriminatory treatment or of joint decision making by more than one person acting with discriminatory motivation, only a participant in the decision acting with discriminatory motivation is liable; an innocent agent acting without discriminatory motivation is not. Thus, where the innocent agent acts on 'tainted information' (per Underhill LJ at paragraph 34), i.e. 'information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory', the discrimination is the supplying of the tainted information, not the acting upon it by its innocent recipient[169]Once the decision-maker, or decision-makers, have been identified, for the employer to be liable for their conduct, three things must be established:169.1 that there was at the relevant time, an employment relationship between the employer and the alleged discriminator(s);169.2 that the conduct occurred ”‘in the course’ of employment”, and169.3 that the employer failed to take all reasonable steps to prevent the conduct in question.[170]The phrase “course of employment” should be given a wide meaning, in accordance with the fact that the purpose of EQA and its predecessors is to seek to eradicate discrimination against employees, and to ensure that there is redress available when it does occur: Jones v Tower Boot Co Ltd 1997 ICR 254.[171]The “reasonable steps” defence (section 109(4) EQA, often colloquially referred to as the “statutory defence”) is limited to steps taken before the act(s) of discrimination / harassment / victimisation occurred. Section 109(4) requires the employer to prove what it had done in the past: Mahood v Irish Centre Housing Page 38 of 54 Ltd EAT 0228/10. If the employer can show that it promptly remedied the situation after it occurred, then, although that might be relevant to remedy, it does not assist the employer to establish the defence. Correspondingly, a slow or inadequate response to a particular allegation of particular discrimination will not cause the employer to lose the defence (for that particular discrimination) if it can show that it had taken all reasonable steps prior to the discrimination.[172]Whether the defence will succeed will depend on what “steps” the employer can prove it took and on an analysis of all the circumstances, including the actual details of the discriminatory conduct, and the likelihood of the steps being effective in preventing such discrimination. The cost and practicability of taking additional steps will also be relevant. The defence might be unlikely to succeed if the employer cannot even show that it took fairly obvious and basic steps such as having policies which made clear what was forbidden, and that there might be disciplinary action for certain types of conduct, and taking action to ensure these policies were drawn to employees’ attention. The EHRC Employment Code suggests some steps that employers could/should take.[173]As per Canniffe v East Riding of Yorkshire Council 2000 IRLR 555, EAT, tribunals should decide:173.1 whether there were any preventative steps taken by the employer, and173.2 whether there were any further preventative steps that the employer could have taken that were reasonably practicable.[174]Training provided long ago, and not repeated, is less likely to help to establish the defence than training which is recent and/or which is updated/refreshed. An anti-discrimination policy which is not actually enforced in practice is less likely to help to establish the defence than if the employer can show that it sought to remove obstacles to complaints, and was willing to investigate complaints properly, and take disciplinary action where appropriate. Analysis and conclusions[175]We propose to deal with the matters in the order they are set out in list of issues. Direct race discrimination[176]Paragraphs 2 to 6 deal with direct discrimination.[177]All of the 15 alleged incidents in paragraph 3 of list of issues refer to alleged conduct which (if it occurred) was something that the alleged wrongdoer did in the course of their employment. Page 39 of 54[178]For ease of exposition, we deal with each item in the list of issues separately. However, at all times, when deciding whether the burden of proof should shift, we have taken into account our findings of fact as a whole, and we have not confined ourselves to analysing each incident piecemeal. 3.1 Did Arune Radiamonte (“Arune”) Make complaints about the claimants performance.[179]Although the Claimant’s representative expressed concern about the word “performance” part way through Ms Radimonaite’s evidence (we infer because of Ms Radimonaite’s answer that - to her - “performance” referred to productivity rather than accuracy), the Respondent's representative and the panel were both clear that the word “performance” had not been used in any technical sense in this paragraph of list of issues. It is an ordinary English word, and the Respondent's representative and panel both saw the paragraph as being wide enough to refer to any incidents in which Ms Radimonaite had raised issues about the standards of the Claimant’s work, regardless of whether it was about accuracy or productivity, and regardless of whether it was written or oral, formal or informal, and regardless of whether the alleged “complaint” was by Ms Radimonaite directly interacting with the Claimant, or else was Ms Radimonaite reporting on the Claimant’s work to another person.[180]As we said in the findings of fact come up we do accept that there was an occasion in around late 2019 or else in 2020 when Ms Radimonaite spoke to the claimant about accuracy.[181]There are no facts which we could infer that Ms Radimonaite was treating the claimant less favourably than a hypothetical comparator whose accuracy had been the same as the Claimant’s on the day in question.[182]The Claimant's own account is that she had been told before starting the night shift that Ms Radimonaite was strict with new employees. At the time, Ms Radimonaite was a key worker rather than a supervisor, but in any event the fact that the Claimant’s perception was that her colleagues believed that Ms Radimonaite was strict with new employees undermines, rather than assists, the Claimant's suggestion that she was singled out because of nationality or language.[183]Mr Ligocki’s opinion (paragraph 21 of his statement) that Ms Radimonaite started checking the Claimant’s work more closely than other people’s does not cause us to think that the burden of proof should shift:183.1 Firstly, it is natural that he might have noticed where his wife was working and whether Ms Radimonaite checked that box after the Claimant finished working on it. However, we do not accept that he was paying equal attention Page 40 of 54 to the other Warehouse Operatives, and to whether Ms Radimonaite checked their work too.183.2 Secondly, on his own account in paragraph 21 of the statement, it was not the case that he thought that Ms Radimonaite was checking up on the Claimant more than on others from day one. Rather, his suggestion was that after the Claimant had refused to sign the paper at the meeting about accuracy Ms Radimonaite had started watching the Claimant more closely. Even if his perception that the Claimant was being monitored more closely than others was true (and, as mentioned in the last sub-paragraph, we are not persuaded of that) then his account does not lead to the inference that a hypothetical comparator – being someone who was not Polish, and/or did not predominantly speak Polish, with little English, who had also refused to sign a document – would have been treated differently.183.3 His opinion that “it looked like [Ms Radimonaite] was trying to find [a mistake by the Claimant] at all costs” is only an opinion. The Claimant was not formally disciplined by Ms Radimonaite. While the reason for that is that the Claimant made no mistakes which justified disciplinary action, that does not support the conclusion that Ms Radimonaite was – because of race – hoping to find a mistake which justified disciplinary action.[184]This complaint fails. 3.2 Did Arune shout at the claimant.[185]As per the findings of fact, it is true that Ms Radimonaite spoke to the Claimant in a loud voice sometimes. She did so to others as well.[186]She, Ms Radimonaite, spoke loudly when she wanted to attract the attention of a worker who was some distance away in the warehouse. We have not been persuaded that she spoke unusually loudly to her colleagues when they were a short distance away.[187]The Claimant and her husband were unable to give clear and specific information about particular incidents, such as the time and date, and why shouting was not necessary. To the extent that they recall that Ms Radimonaite shouted to the Claimant that the Claimant had dropped something, there are no facts which cause us to infer that a hypothetical comparator – being someone who was not Polish, and/or did not predominantly speak Polish, with little English, who had also dropped something – would have been treated differently.[188]This complaint fails 3.3 Did Arune tell the claimant off for minor things. Page 41 of 54[189]To the extent that this allegation relates to things other than the 24 February 2022 incident, or the incident we discussed when analysing paragraph 3.1 of list of issues, it fails on the facts. The word “minor” is too vague. We have not found facts that the Claimant was told off, by Ms Radimonaite, for doing thing for which another employee would not have received a telling off from Ms Radimonaite. Ms Radimonaite did accept (in the grievance appeal interview) that she sometimes spoke to the Claimant if errors had been made. However, that was her job as supervisor. We accept her evidence that it was her responsibility to ensure that the targets set by her employer were met, 3.4 On 24th February 2022 did Arune tell the claimant off for standing and talking while other employees were chatting and standing too.[190]This is an allegation for which the Claimant has provided a specific date but has not provided us with a satisfactory explanation about why she is confident about that date.[191]It is a specific one off incident.[192]We accept that the Claimant has an accurate memory that there was a particular occasion when Ms Radimonaite said to the Claimant, “Get back to work”.[193]If the Claimant is correct about the date, then it was just under 7 months before the date on which the she contacted ACAS. It was also more than 9 months before the date on which the Claimant submitted her claim to the Tribunal. This allegation did not appear in that claim. The first time that it was specified as one of the acts of discrimination which the Claimant was alleging as part of this claim was in the Further Information document submitted in May 2023, so 15 months after the alleged incident.[194]It is not just and equitable to extend time for this incident. There is no reason that it would be memorable for Ms Radimonaite and we entirely accept her account that she has no specific recollection of what might have happened on 24 February 2022. (We refer in findings of fact to her assertion that she does recall an occasion when she told a group of employees, one of whom was the Claimant, to get back to work, and that we find her recollection to be accurate about that.) It would not be theoretically possible for her to give her version of events of what happened on exactly 24 February 2022 given the length of time before she was asked to comment. To the extent that the Claimant and Ms Radimonaite are recalling the same specific incident, it is hard to reconcile the Claimant’s account that she was singled out and Ms Radimonaite’s account that she told the whole group to get back to work. However, the delay has prevented any possibility of the Respondent seeking to investigate while the matter might be fresh in anyone’s mind and to see what other witnesses thought had been expressly stated and/or implied. Page 42 of 54[195]The prejudice to the Claimant of now extending time is comparatively slight.[196]It is not self-evident that the allegation would have succeeded if it were in time. It is not inherently suspicious that a Supervisor tells a worker to get back to work. On the contrary, that is their job. So the wrongdoing, based on the Claimant’s assertion, is that the other two individuals did not get the same reminder at the same time that she did. Even on the Claimant’s case, she does not allege that she was told to get back to work while she, the Claimant, was actually actively performing her duties. As a one off incident – which is what we have found that it was – this may not have been sufficient to persuade us that the burden of proof should shift.[197]This allegation is out of time and it is dismissed. 3.5 Did Arune leave the claimant out of their communication by asking others staff to pass on information to the claimant.[198]It is true that Ms Radimonaite did, in fact, ask other people to pass on information to the Claimant. Doing so does not amount to leaving the Claimant out of communication, but rather was a method of seeking to achieve communication.[199]Ms Radimonaite did this to employees of nationalities other than Polish. She did it with other people who could not speak English too, even where their main language was not Polish.[200]We are not persuaded that Ms Radimonaite did it more often with the Claimant than she did with people who were not Polish, or with people who could not speak English but whose main language was not Polish.[201]Furthermore, we are also satisfied that she did it occasionally with people who did speak English fluently. One of the reasons (in cases such as the Claimant’s) that Ms Radimonaite sometimes passed a message through an intermediary was that the intermediary might be able to communicate with Ms Radimonaite in English and with the recipient of the message in a different language, a language that Ms Radimonaite did not speak. However, one of the reasons that Ms Radimonaite sometimes passed a message through an intermediary was that it was an efficient method of getting a message to a colleague if the colleague was in a different location and Ms Radimonaite had to remain where she was.[202]We are satisfied that the Claimant was not being treated differently to comparators, and also satisfied that that she was not being treated less favourably either.[203]This allegation fails. 3.6 Did Arune fail to provide clear instructions to the claimant. Page 43 of 54[204]When Ms Radimonaite communicated directly with the Claimant, she did not always arrange for another colleague to be present so as to translate between Polish and English. Indeed, for day to day instructions she rarely (if ever) arranged that.[205]As just discussed when addressing the previous paragraph of list of issues, Ms Radimonaite did, in fact, sometimes give instructions to a worker and ask that worker to pass them onto the Claimant. However, when speaking directly to the Claimant, Ms Radimonaite failed to check whether the Claimant properly understood the information that Ms Radimonaite had communicated in English.[206]We are satisfied that, when speaking to the Claimant, Ms Radimonaite gave the same information (in English) to the Claimant that she gave (in English) to other workers. Ms Radimonaite did not provide less information (in English) or less clear instructions (in English) than she gave to other people.[207]In saying this, we note that the Claimant has provided no examples of any other employee receiving more detailed instructions than she, the Claimant, received from Ms Radimonaite. Rather her argument is that other employees (in particular, Abel) were able to make themselves understood when speaking English to the Claimant and that, in the Claimant’s opinion, Ms Radimonaite should have been more like Abel. However, that is a very different allegation to a suggestion that Ms Radimonaite treated the Claimant differently than Ms Radimonaite treated others.[208]We have already discussed the practice that, for employees who did not speak English, for example for Romanian workers, or workers from South Asia or East Asia, Ms Radimonaite was sometimes in the habit of arranging for a co-worker to pass along a message from her with her instructions.[209]We have already discussed that Ms Radimonaite did that for the Claimant, to the same extent, that she did it for speakers of languages other than Polish.[210]For the times when Ms Radimonaite did not adopt that practice, and instead attempted to communicate directly with the Claimant, there are no facts from which we could conclude that her reasons for not attempting to be clearer with the Claimant were that the Claimant was Polish.[211]We have considered as hypothetical comparators211.1 Someone – of any nationality other than Polish – whose circumstances were materially the same as the Claimant’s including that their main language was Polish and they spoke little English and Page 44 of 54211.2 Someone (of any nationality) whose main language was not Polish whose circumstances were materially the same as the Claimant’s including that they spoke little English.211.3 There are no facts from which we could conclude that either such hypothetical comparator would have been treated differently[212]We have also considered colleagues who did speak English well. The Claimant was not treated differently than such persons. She received the same instructions that they received.[213]This allegation fails. 3.7 Did Arune deliberately fail to provide helpful answers to the Claimant[214]As with all the other complaints, this is confined to dates up to and including 6 December 2022, the date on which the claim was issued.[215]Ms Radimonaite did not lie to the Claimant when she told the Claimant that she did not know the answers to particular questions.[216]What is true is that when the Claimant asked a question, and Ms Radimonaite did not know the answer, she, Ms Radimonaite did not proactively attempt to obtain the answer and supply it to the Claimant.[217]There are no facts from which we could infer that the Claimant has been treated less favourably than any hypothetical comparator, or that the treatment was because of race.[218]Our findings are that the Claimant has failed to prove any examples of actual comparators asking similar questions to those which the Claimant put to Ms Radimonaite and of Ms Radimonaite then proactively obtaining the answer from HR or from senior management. Paragraphs 10 to 12 of Mr Ligocki’s statement are too vague. He says that when he asked for help, or raised a query, he did not get a satisfactory answer from Ms Radimonaite despite the fact – according to him – that she was not too busy to help. However, he gives no specific examples or details of alleged occasions when “Lithuanian workers” or “British workers” did get the assistance denied to him.[219]This allegation fails. 3.8 Did Arune ignore the claimant[220]It is true that Ms Radimonaite was not proactive in developing friendly relationship with the Claimant and that she tended to communicate via third parties more often than directly with the Claimant. Page 45 of 54[221]We accept that the Claimant was telling the truth, in oral evidence in 2025, when she said that it is currently her genuine recollection that her perception at the time was that there were many occasions (between start of employment and 6 December 2022) when she said either “hello” (at the start of a shift) or “goodbye” (at the end of a shift) when Ms Radimonaite did not reply.[222]Ms Radimonaite denies ever deliberately ignoring a greeting from the Claimant.[223]The allegation of ignoring such greetings is not something raised by the Claimant’s grievance or in her written statement. Rather the context of the allegation that she was “ignored” was that issues which she raised with Ms Radimonaite did not receive a response. In that sense, the issue is effectively a repeat of paragraph 3.7, which we have dealt with already.[224]In the specific context of an allegation that Ms Radimonaite literally ignored the Claimant’s oral greetings, by failing to respond at all (deliberately, having heard and understood what the Claimant had said), this allegation fails on the facts. The Claimant has not proved, on the balance of probabilities, that that is what happened. 3.9 In December 2021 did the respondent unreasonably delay holding a meeting with the claimant regarding amended duties (“the Amended Duties Meeting”).[225]As an industrial jury, our assessment is that taking from 17 December 2021 (or possibly a day or two after) until the night shift of 10/11 January 2022 to arrange a meeting to discuss the contents of Dr Raza’s letter was excessive.[226]We do not doubt that retailers are busy in December, but it is not an unexpected upsurge in work. Reasonable employers are expected to be aware that they have duties to employees throughout the year, and a need to discuss a potentially urgent matter (such as fitness to work, or need for adjusted duties on health grounds) cannot necessarily be put on hold just because it is a busy period.[227]Similarly, while it is true that the Claimant worked nights, it is the employer’s responsibility to ensure that appropriately senior staff are available to have discussions at the correct time. This is not a business were only a tiny percentage of staff work nights. Night work is a feature of the Respondent’s business model. In any event, there seems to have been no particular difficulty in having Mr Cowlard meet the Claimant during the period 5.30am to 6am when their shifts overlapped.[228]So, from a point of view of reasonableness, the Respondent’s explanations for the delay are not strong ones. That being said, we are satisfied that there were material differences between the Claimant’s circumstances and Eleonora’s. The Page 46 of 54 Respondent’s explanations for the delay in arranging a meeting with the Claimant do not necessarily reflect well on it, but we do accept that it was comparatively easier to arrange a meeting with Eleonora, and that played a part in the fact that the meeting with Eleonora was arranged quickly.[229]The appropriate hypothetical comparator would be someone else who worked the night shift, and who submitted a doctor’s letter similar to [Bundle 306] in December 2021 (and then a chase up letter similar to the Claimant’s 3 January 2022 letter), but who was a different nationality to the Claimant.[230]There are no facts from which we can conclude that a hypothetical comparator would have been treated differently. Although the meeting could have been arranged sooner, it took place within 3 weeks. Mr Cowlard himself went ahead with it straight away upon finding out about the Claimant’s request. If there was a delay by an individual then it was by Dawid Cison and/or Ms Jeffery. However, taking into account that the delay was days/weeks rather than months, there are no facts that demonstrate to us that either of them deliberately acted more slowly than they would have done for someone of a different nationality.[231]This allegation fails. 3.10 Did Chris Cowlard hold the Amended Duties Meeting in a hall and write the notes of the meeting on his knees.[232]As per the findings of fact, it is true that Mr Cowlard did this. (The description “hall” is vague, but it was an area that was not enclosed so that only the attendees had access; there was the possibility of other people walking through the area.)[233]However, the explanation in the documents is not suspicious. That is, regardless of whether this might have been unreasonable or unfair or a breach of the employee’s privacy, there are no facts from which we could conclude that Mr Cowlard might have treated a hypothetical comparator any differently. A hypothetical comparator would be someone with whom Mr Cowlard was meeting to discuss amended duties (for reasons connected to the employee’s health) who was not Polish. It could also be someone (of any nationality) whose main language was Polish, or someone (of any nationality) whose main language was something other than English. There are no facts which demonstrate a reason for us to suspect that Mr Cowlard might have arranged a private meeting room (or any different location for the one which he used for the meeting with the Claimant) for a hypothetical comparator.[234]This allegation fails. 3.11 Did the respondent fail to share the recommendations for the claimant from the Amended Duties Meeting with other managers. Page 47 of 54[235]This allegation fails on the facts. Mr Cowlard did share the recommendations with Ms Radimonaite.[236]To the extent that the allegation is that he should have supplied written information to “managers” (specifically, as opposed to Ms Radimonaite who was a “supervisor), there are no facts from which we could conclude that he would have done so for a hypothetical comparator. 3.12 Did Arune deliberately send the claimant to complete tasks that were unsuitable for the claimant and ignore the amended duties recommendation.[237]We are satisfied that Ms Radimonaite did not deliberately send the claimant to complete tasks that were unsuitable for the claimant.[238]In terms of the allegation that Ms Radimonaite ignored the recommendations about amended duties, and did so because of race, the burden of proof does not shift. There are no facts from which we could conclude that a hypothetical comparator would have been treated differently by Ms Radimonaite.[239]The characteristics of an appropriate comparator would include that Ms Radimonaite received the same information about “amended duties recommendation” that Ms Radimonaite received in relation to the Claimant. For that reason, we do not regard Eleonora as an appropriate actual comparator. It is not true (or at least, has not been proven) that Ms Radimonaite received information about Eleonora that was comparable to that which she received for the Claimant. Eleonora did not work on the night shift for which Ms Radimonaite was the supervisor.[240]This allegation fails. 3.13 Did the respondent unreasonably delay discussing further amended duties for the claimant following the occupational health report that was issued in May 2022.[241]The Respondent did delay. The OH report was not particularly informative. However, the context was that having spoken to HR in March 2022, a meeting with Ms Jeffery was arranged. The outcome of the meeting was that an OH referral would be made. However, it was in the context of the Claimant’s suggesting that already, by 31 March, there had been a significant delay since around 17 December 2021.[242]As mentioned in findings of fact, Ms Jeffery’s oral evidence was that there had been unsuccessful attempts to arrange a meeting with the Claimant which the Claimant had put off.[243]The duration of the delay was from (shortly after) 4 May 2022 until 7 September 2022. So 4 months. As mentioned, Ms Jeffery was aware that (whether she Page 48 of 54 agreed or not) it was the Claimant’s position that there had already been a 3 month delay prior to that.[244]While we accepted that, for the delay prior to the meeting with Mr Cowlard, there were relevant differences between the Claimant’s circumstances and Eleonora’s such that Eleonora was not a comparator, we are now looking at a much more substantial delay than between 17 December and 10/11 January.[245]There is a stark difference between the treatment given to Eleonora and that given to the Claimant.[246]The delay is a long one. Even by the standards of an employer that might be slow to react, some of the time, to issues raised by employees, our assessment is that this was extraordinarily lengthy.[247]Given the stark differences between another employee’s treatment and that of the Claimant, there are facts from which we could conclude that, whether consciously or unconsciously, the Claimant’s nationality, or the fact that she mainly spoke Polish, with little English, influenced the failure to arrange a meeting more quickly to discuss the OH report.[248]It is a difference in treatment that calls out for an explanation.[249]Even on the basis of Ms Jeffery’s own oral account, the reason for part of the delay was connected to the Claimant’s requirement to have either Ms KasińskaJadczak or her husband accompany her. (That allegedly being the reason that the meeting did not occur in July or August).[250]The Respondent has not discharged the burden of proof. It has not shown that the reasons that the meeting did not take place sooner than it did (including sooner than 28 June) had nothing to do with race.[251]The Respondent has failed to prove the statutory defence. Its own HR department was involved in the process. This is not a case of an employee (whether senior or junior) ignoring the employer’s instructions and guidance. No correspondence has been disclosed showing that HR sought to encourage management to hold the meeting any more quickly.[252]This allegation succeeds. 3.14 Did the respondent fail to implement any alleged reasonable adjustments for the claimant.[253]Our findings in relation to sections 20/21 EQA are below. Page 49 of 54[254]For Ms Jeffery, after the meeting did eventually take place in September 2022, she proposed certain adjustments for the Claimant. She did not do less, at that stage, than she would have done for a hypothetical comparator.[255]To the extent that this is an allegation against Ms Radimonaite, she did not, because of race – or at all – fail to carry out the instructions of more senior managers to adjust the Claimant’s duties as instructed on 7 September 2022.[256]This allegation fails. 3.15 Did Arune ignore or treat the claimant impatiently because the claimant is Polish and speaks English poorly.[257]This allegation fails because we are not satisfied that there is a factual basis for it. It is very vague and to some extent is a summary of the other allegations that Ms Radimonaite allegedly shouted at the Claimant (because of race) and/or did not explain things thoroughly to the Claimant (because of race).[258]Overall, there was a difference in Ms Radimonaite’s communication with the Claimant in comparison with Ms Radimonaite’s communication with people (of any nationality) who spoke English reasonably well. (Ms Radimonaite speaks English well, albeit it is not her first language). However, there was no difference in Ms Radimonaite’s communication with the Claimant in comparison with Ms Radimonaite’s communication with people (of any nationality) who did not speak English well. The differences are those we have set out above in the analysis and the findings of fact, which were that there was a greater likelihood that (for the non-English speakers) the instructions would be delivered via a colleague rather than directly from Ms Radimonaite (though, as we have mentioned, sometimes instructions were delivered via a colleague, even for the English speakers, and sometimes Ms Radimonaite attempted direct communications, even for those who did not speak English fluently.)[259]However, there are no facts from which we could conclude that Ms Radimonaite was more “impatient” with the Claimant than she was with a hypothetical comparator.[260]We addressed “ignore” in relation to paragraph 3.8 of list of issues.[261]This allegation fails. Indirect discrimination 8. The protected characteristic relied upon is the claimant’s Polish nationality 9. Did the respondent, acting through Arune, apply the following provision criterion or practise [of] Ignoring or treating less patiently workers who did not speak English well. Page 50 of 54 11. Did the respondent apply this PCP generally including to persons with whom the claimant does not share the protected characteristic alleged?[262]On the facts, the Claimant has failed to prove that Ms Radimonaite did have a practice of “Ignoring or treating less patiently workers who did not speak English well”.[263]Had it been established that (for example) Ms Radimonaite would say hello and goodbye to people who spoke English well and deliberately omitted to say hello and goodbye to people who did not speak English well, then that would have potentially amounted to direct discrimination. However, taking into account the Supreme Court’s guidance in Onu, we would not have found it to have been a PCP within the meaning of section 19 EQA, because it would have been a practice that was because of something closely associated with the protected characteristic in question (in this case, the fact that the Claimant’s nationality is Polish). The same analysis would apply if we had found facts to show that Ms Radimonaite was “less patient” with people who did not speak English well.[264]The indirect discrimination fails because the Respondent did not apply the alleged PCP. Disability discrimination 17. Did the respondent apply the following PCPs to the claimant?a. Sending the claimant to attend heavy warehouse tasks including PTS, wholesale, franchise and picking.b. Requiring the claimant to complete heavy lifting in their role as a warehouse operative.c. Requiring the claimant to stand while working in the labels department.[265]In each case, if the words “Warehouse Operatives” are substituted into paragraph 17 to replace “the claimant” wherever it appears, then the Respondent did have the PCP. Furthermore, each of those PCPs was applied to the Claimant. The proviso / clarification is that paragraph 17b is established to the extent that the PCP was that Warehouse Operatives had to lift packages of up to 15kg. They did not have to lift packages which were in excess of that. There was a system in place for such packages to be identified; even to the extent that that system was (on the Claimant’s case) imperfect, we are satisfied that the employees were not expected or required to lift more than 15kg, and that there were no adverse consequences for any Warehouse Operative who identified that a package was in excess of 15kg and who (therefore) decline to lift it. 18. Did the PCPs put the claimant at a substantial disadvantage in comparison with those who are not disabled? Page 51 of 54[266]For items 17a and 17b, the Claimant was at a disadvantage, because of her disability, in comparison with those who are not disabled, when seeking to perform the duties required by the PCPs.[267]The Claimant’s condition began in around April 2017. Between April and May 2017 (which was before she was employed by the Respondent), the effects on her were as described in paragraphs 4 to 7 of her impact statement. Similar symptoms recurred in September 2017, and again in April 2018. It was around this time that she began to see Dr Raza. As a direct result of the disability, she had a procedure which, as mentioned in paragraph 14 of the impact statement, meant that: … I am unable to carry something heavy for a longer period, unable to pick/carry heavy items. Sometimes when I have something in this hand and it’s too heavy it falls out of my hand automatically. The scar has not healed properly. For a long time, I wore gloves at work to hide the scare. Because of this hand condition I have permanent amended duties at work: no hanging.[268]In addition, as per paragraph 29: My reoccurring condition when triggered totally stops me from daily activities such as eating, touching things, working, shopping, cleaning etc. I am exhausted, in pain in these days.[269]However, in relation to item 17c, this is a disadvantage that the Claimant was not at until around 28 November 2022. It arises from the matter covered by the Fit Note which covered the period 28 November 2022, for 3 months. 19. Did the respondent know or ought to have known that the claimant was at a substantial disadvantage because of the PCPs?[270]For the disadvantages arising from PCPs 17a and 17b, the answer is “yes”.[271]At latest, the employer had actual knowledge from 28 February 2022 onwards, when they received the Fit Note which specifically referred to the disability in the context of a requirement for amended duties.[272]Our assessment is that the Respondent ought reasonably to have known about the disadvantages from close to the start of the Claimant’s employment when the Claimant and Mr Ligocki spoke to Ms Jeffery and sought to explain the conditions and offered to provide documentation if required. 22. When did the respondents duty to make reasonable adjustments arise?[273]Our assessment is that the Respondent ought to have proactively been considering what steps to take (if any) to reduce the disadvantages to the Claimant from not long after the discussion which the Claimant and her husband held with Ms Jeffery. Page 52 of 54 20. If so, what steps could the respondents have taken to avoid that disadvantage? 21. Was it reasonable for the respondent to have taken those steps? 23. The claimant will contend that the respondent should have made the following adjustments:a. Moving her to work in the cleaning, labels, gun office or IHF.b. Reducing her contact with Arune.c. Providing the claimant with a chair when she was working in the labels department.[274]We deal first with item 23b in list of issues. This was not a step which it was reasonable for the Respondent to have had to take, and it was not a step which would have reduced the disadvantage to the Claimant of the fact that the Respondent applied the PCPs (as set out in paragraph 17 of list of issues) to her.[275]In terms of item 23c, our analysis is that there had been no failure to make this adjustment by 6 December 2022. The requirement for the step had only just arisen, by around 28 November 2022. However, we would not have accepted the employer’s argument that it would not have been practicable (whether on health and safety grounds or otherwise) to take this step, given that pregnant employees were provided with chairs in that department.[276]However, the steps that it was reasonable for the Respondent to have had to take to reduce the disadvantages to the Claimant were that it should have ensured that colleagues (especially the Grid Sorters, but also the Key Workers) were ready to proactively assist the Claimant with identification of items which were not to heavy for her to lift onto trolleys. It should also have enabled the Claimant to spend a larger amount of time on labelling, as this was a task that disadvantaged her less than others in comparison to persons without her disability. Time limits24. Insofar as there were a series of acts, did they constitute an act extending over a period (a continuing act)?25. Were the claims presented within the time limit contained in section 123 Equality Act 2010?26. If not, was the claim presented within such further period as the tribunal thinks just and equitable?[277]The period from 23 September 2022 (the day after early conciliation commenced) until 3 November (inclusive) is ignored for time limit purposes.[278]The reasonable adjustments claim is in time. The Respondent did not unequivocally tell the Claimant that it would not make reasonable adjustments, or do something inconsistent with agreeing to make them. After her request for Page 53 of 54 “amended duties” in December 2021, it held a meeting with her on 11 January, when she chased up (what she perceived as) inaction they arranged a meeting with Ms Jeffery on 31 March 2022, and there was an agreement for an OH referral to be made. That report said no “permanent” adjustments were needed, not no adjustments at all. Then the Claimant had to wait for the Respondent to arrange a meeting with Ms Jeffery to discuss (what the Claimant hoped would be) possible adjustments.[279]If we are wrong that the reasonable adjustments claim presented on 6 December 2022 (so less than 3 months after the meeting with Ms Jeffery was in time) then it would be just and equitable to extend time.[280]For similar reasons, the claim that it was race discrimination to delay holding the meeting until 7 September 2022 is in time.[281]We already said above that the allegation about 24 February 2022 (which we did not decide was otherwise upheld) is out of time and we do not extend time. That alleged incident does not form part of a continuing act with the complaints which we have upheld. Outcome and next steps[282]A remedy hearing will take place on Monday 8 September 2025. Approved by: