Ms S Stevenson v The Validium Group Ltd and Others: 3323609/2021 and 3305400/2022

EMPLOYMENT TRIBUNALS

Case No 3323609/2021, 3305400/2022

Between

Ms S StevensonClaimant

Mr Mark Stephens (Counsel)Respondent

Before

Employment Judge Young

Members

Ms J Hancock

Mr D Wharton

Mr Tom Pacey (instructed by Counsel) for claimant

Mr Mark Stephens (instructed by Counsel) for respondent

Date 18 July 2025

REASONS

The Law

[1]The Claimant was employed by the First Respondent Business as a personal assistant. The Second Respondent ran the First Respondent although it was not direct shareholder, but rather a shareholder in the company that owned the First Respondent. The Claimant contacted ACAS on 7 October in relation to all the Respondents. The ACAS early conciliation was issued on 17 November 2021. The Claimant presented her first claim form (3323609/2021) [21-40] on 16 December 2021 which named all 7 Respondents. The Claimant then contacted ACAS again on 11 March 2022. The second ACAS early conciliation certificate was issued on 22 April 2022 only in relation to the First Respondent. The second claim form [60-84] (3395400/2022) was presented on 9 May 2022 and named all 7 Respondents. The second claim form dealt predominantly with the unfair dismissal claim. Hearing and Evidence

[2]We were provided with a 1135 page agreed bundle (including the index), a Claimant’s bundle (‘CB’) of 47 pages which contained the Claimant’s witness statement of 20 pages and an agreed chronology and cast list. We had written witness statements from 8 of the 10 witnesses we heard oral evidence from. We heard evidence from the Claimant and her witnesses Mr Mike Shaw (former director of the First Respondent and consultant for the Second Respondent), Mrs Anne Shaw (nee’ Payne (former director of the First Respondent and consultant for the Second Respondent) who did not have witness statements and attended under witness order. Mrs Shaw provided an additional email trail which was labelled as pages 51 & 52 of the Claimant’s bundle.

[3]We heard from the Respondent witnesses Mr Aseem Sadana (Third Respondent and Chief Operating Officer (COO) of the Second Respondent), Ranjan Singh (Fourth Respondent Chief Executive Officer (CEO) of Third Respondent), Carmelita Lubos (Fifth Respondent Chief of People), Edward Hill (Sixth Respondent Senior HR manager March 2021- June 2023), Sarah Sexton (Seventh Respondent, Executive Assistant at Second Respondent)

[4]On day 1 (Monday 7 April) there was an application by Mr Pacey on behalf of the Claimant for witness orders for Mr Mike Shaw and Mrs Anne Shaw (nee’ Payne). The basis of the application was that the 2 witnesses were previously available to attend by consent, but there was a sale purchase agreement that prevented them from attending due to a confidentiality clause in that agreement. Mr Pacey said that the witnesses were available to attend but needed a witness order.

[5]The application for the witness order was made in writing on 7 April 2021 and was contained at pages 21-25 CB. Mr Pacey clarified that the basis of the application was not in reference to late disclosure as contained in the application for a witness order; it actually had nothing to do with the application. There was a discussion about whether the Respondent could waive the confidentiality clause so that the witnesses could give evidence freely. Mr Stephens explained that the Sale contract was with Marcole not any of the Respondents. Mr Stephens questioned why the Claimant should be allowed to provide witness evidence at the last moment. After further discussion, Mr Stephens confirmed that the Respondent would not object to the Employment Tribunal examining the witnesses in chief rather than witness statements being provided. Mr Stephens said that the Respondent preferred if the evidence came in cold. Mr Pacey agreed. It was made clear to Mr Pacey that the Employment Tribunal examination in chief of the witnesses did not mean that the Claimant could cross examine them. Mr Pacey confirmed that he understood this. There was a discussion as to the relevance of the witnesses and it was agreed that the witnesses could produce a draft statement explaining what relevant evidence they had to give and produce a copy of the clause the witnesses said was prohibiting them giving evidence before a decision on making the witness orders could be made. Mr Pacey agreed that the clause and statements of 1 page each would be produced to the Employment Tribunal no later than 1pm on Tuesday 8 April 2025 so we could have a 2pm start on Tuesday 8 April 2025. The Employment Tribunal also agreed that the hearing would be to deal with liability only as there would not be sufficient time to deal with both in the time allocated.

[6]On day 2 (Tuesday 8 April 2025) the Employment Tribunal did reading until 2pm. The witnesses Mr & Mrs Shaw attended via CVP at 2pm. The Employment Tribunal heard from the witnesses regarding the evidence they were to give. Mr Pacey told the Employment Tribunal that Mr Chauncy was in possession of confidential information in an envelope and the Claimant now wanted to disclose those documents. Mr Pacey was not able to tell the Employment Tribunal how long Mr Chauncy had been in possession of those documents. The Employment Tribunal told Mr Pacey that if he wanted to rely on those documents, the Claimant needed to make an application before the start of the evidence. Mr Pacey acknowledged this instruction.

[7]Following receipt of the one page statements from Mr & Mrs Shaw and having heard them, the Employment Tribunal made a decision to grant the witness orders. Mrs Shaw was also ordered to produce an email dated 19 November 2020 as part of her evidence. Oral reasons were given and will not be repeated here. The Claimant made an application for the Claimant to attend judgment by CVP as the Claimant’s counsel was based in Scotland.

[8]On day 3 (Wednesday 9 April 2025) the Employment Tribunal went through the issues having asked questions on day 2 to be answered on day 3. The Claimant had been asked what the dates were in contemplation in relation to issue 17(6). Mr Pacey explained that the Claimant was saying that issue 17(6) that the Respondent contemplated making the Claimant redundant unless she was able to undertake the business support executive role, relates to the accumulative effect of all the discrimination that the Claimant experienced until that date. The Claimant accepts that she does not know what is in the Respondent’s mind but at the latest, it was the 27 April 2021 when it became clear that the Respondent planned to get rid of the Claimant. the Claimant was asked what were the issues of unwanted conduct were that the Claimant was relying on. Mr Pacey clarified that in relation to issue 17(11), the Claimant was relying on receiving the job description and email dated 7 May 2021 as examples of unwanted conduct. In relation to issue 17(16) Mr Pacey explained that the acts relied upon were contained in paragraphs 18-24 of the particulars of claim up to the rescheduled Occupational Health appointment until 15 November 2021. Mr Pacey clarified that the Claimant was not relying on any acts of discrimination after July 2021. Mr Pacey also indicated that there might be a possible disclosure application. It was pointed out to Mr Pacey that we needed to any applications regarding disclosure before the Claimant’s evidence started. Mr Pacey was given some time to take instructions. Mr Pacey said that the Claimant was not in a position as yet to make the application because he had only been sent over some of the documents from his instructing solicitor but not all of them. He said that he needed another 10 minutes to receive some screenshots of the documents. After taking a 10 minute break from 11:00-11:10, the Respondent had been shown the screenshots. Both the Respondent and the Claimant agreed that 3 of the documents were not relevant. Mr Pacey explained that one of the documents is already in the bundle. Mr Pacey said that he didn’t have instructions to make an application at that time. The Employment Tribunal were told Mr Chauncy was speaking with the witnesses and there could be further documents, but the Claimant was happy to proceed with witness evidence.

[9]It was agreed that the Claimant and Mr Pacey could attend judgment via CVP.

[10]On day 4 (Thursday 10 April). Mr Pacey was asked by the Employment Tribunal whether there were any further documents. Mr Chauncy did not attend Employment Tribunal that day, but his assistant, Ms Angel Leworthy was to attend and she would bring any documents with her. The Employment Tribunal continued hearing evidence from the Claimant who had started her evidence on day 3. However, at 11:34 on return from a short break, Mr Pacey said that the documents had arrived and now he needed to make an application to have leave to rely upon the additional documents. Mr Pacey explained that the documents were provided by Anne Shaw and included emails from Anne Shaw and a list of disclosure from the Respondent. After taking a short break for Mr Pacey to take instructions, he confirmed that these were documents that were in Mr Chauncy’s possession when he attended the Employment Tribunal on day 2. Mr Pacey said that the explanation for why the documents were not disclosed earlier on day 2 was that Mr Chauncy was saying he was under restriction from a director (Brian Cole is the director of R1) to be able to speak to the witnesses and that he prioritised proofing and he didn’t have time and apologises for the restrictions. The Employment Tribunal decided that the Claimant’s application was refused as it was not made promptly and having regard to the overriding objective, it was not fair to the Respondent to disclose documents at this point which could require further instructions and evidence. The Claimant had been told to make the application before the start of evidence and had decided not to. Reasonable adjustments for the Claimant

[11]The Claimant required an opportunity to stretch her legs and regular breaks. Such adjustments were made. Claims and Issues

[12]The Claimant claims are direct disability discrimination, indirect disability discrimination, harassment related to disability, discrimination arising from disability, reasonable adjustments, victimisation, redundancy payment, unfair dismissal.

[13]As there were 2 claim forms, the list of issues for both claim forms were combined at the start of the hearing. the issues in the case are set out below: Time Issues 1. Were the claims presented in time with regard to the factual events on which they rely? C alleges discrimination based on events in March 2021 and earlier. 2. When did the discriminatory acts/omissions upon which the Claimant relies occur? Do the discriminatory acts/omissions amount to conduct extending over a period of time? 3. Did the last of any such conduct take place more than three months (subject to Acas Early Conciliation) prior to the date of the presentation of(1) the first claim on 16 December 2021 and

(2) second claim on 9 May 2022? 4. If any of the discriminatory acts/omissions are out of time, is it just and equitable to extend time? 5. Claim 1 was presented 16 Dec 2021, ACAS was notified on 07 October 2021 and the ACAS EC certificate was issued on 07 November 2021. 6. Claim 2 was presented 09 May 2022, ACAS was notified on 11 March and the ACAS EC certificate was issued on 22 April 2022. 7. Who was the Claimant’s employer at the time of her dismissal? 8. What was the reason for the dismissal? The First/Second Respondents say that it was redundancy; alternatively, capability and/or some other substantial reason, namely (i) the Claimant’s alleged refusal to accept the only role available to her, (ii) the irretrievable breakdown of the working relationship and/or (iii) long-term absence. The Claimant says her dismissal was a sham. 9. Did the First/Second Respondents act reasonably in treating the pleaded reason(s) as sufficient reason(s) for dismissing the Claimant, taking into account the size and administrative resources of the First/Second Respondents and in accordance with equity and the substantial merits of the case? 10. Did the First/Second Respondents adopt a fair procedure? 11. If the dismissal was unfair: (1) Did the Claimant’s own conduct contribute to her dismissal and if so, to what extent? (2) Should any reduction to compensation be made in light of Polkey v AE Dayton Services Ltd

[1987] UKHL 8

? 12. Did either the Claimant or First/Second Respondents unreasonably fail to follow the Acas Code of Practice on Disciplinary and Grievance Procedures? If so, should any adjustments be made to compensation? Statutory redundancy payment (s.141 ERA 1996) 13.If the Claimant was dismissed by reason of redundancy:

a. Was C offered any alternative roles? R will say that on 06 August and 2021 C was offered an alternative role with working hours, location and pay that were virtually identical to her role before October 2020.

b. Was the role offered to C on 06 August 2021 a suitable alternative role

c. Did C refuse the role?

d. If C did refuse the role, what was her reason for refusing, and was her refusal reasonable?

e. Did C lose her right to a statutory redundancy payment by reason of s.141 ERA 1996? Disability discrimination Disability and knowledge

[14]The Respondents accept on the basis of the OH report dated 21 June 2021 that the Claimant was a disabled person within the meaning of s.6 of the Equality Act 2010 at the relevant times, by reason of her conditions of malignant melanoma, neuropathic pain, seizures, temporary loss of vision and mobility issues. The Claimant says she also suffers from lymphedema, pernicious anaemia and stress and anxiety.

[15]Did the Respondents know, or should they have reasonably known, of the Claimant’s disability at the relevant times? The Respondents say that before 21 June 2021 they (and in the case of R1 the directors appointed on 06 October 2021) did not have full knowledge of C’s impairments. The Claimant says the First Respondent knew of her disability since 2013 and the Second to Seventh Respondents knew, or should have known, about the same from late 2020 or early 2021. Direct discrimination (s.13, s.23 EQA 2010)

[16]Did the Respondents treat the Claimant less favourably than they would have treated a hypothetical comparator whose circumstances, including abilities, were not materially different to those of C?

[17]The instances of allegedly less favourable treatment on which C relies are as follows:(1) At an HR Teams meeting on 4 March 2021, the Fifth Respondent announced that the Claimant (and the Seventh Respondent) would be leaving the HR team. The Claimant says the decision was made by the Respondents without consulting or notifying the Claimant in advance of the Teams meeting.

(2) The Respondents decided to move the Claimant into a Business Support Executive role. On 4 March 2021, C says that the Seventh Respondent said the Claimant was moving into that role so that she could protect the Claimant in the new role. R7 has no recollection of making this comment, but says it created three new roles and was making one available to the claimant

(3) At a welfare meeting on 27 April 2021: (a) The claimant understood her role since the acquisition of R1 by R2 in October 2020 had been as Executive Assistant to R3 and the HR Team. She complains that R6 alleged that her role had been temporary in nature. (b) The Sixth Respondent told the Claimant that her role no longer existed due to recent changes within the business. Claimant’s case is that she had not been told about this which is denied by the respondents. (c) The Sixth Respondent told the Claimant that she could consider applying for the Business Support Executive role, which was full time and required travel to London two to three times per week. The Claimant alleges that the respondents (including the Third and Fourth Respondents) reneged on their decision that she would be moved into this role automatically and that the Sixth Respondent told her to consider the role as it was presented to her, even after she expressed concerns about it. The Respondents deny there had ever been a decision to move the Claimant into this role automatically.

(4) On 29 April 2021, the Sixth Respondent sent the Claimant a job description for the Business Executive role, even though the Respondents had been told by the Claimant could not meet the requirements of the role as she could not work full-time or travel.

(5) On 7 May 2021, the Sixth Respondent reiterated that the Claimant had, since the acquisition, carried out a temporary role and if she returned from sick leave, she would have no role to come back to and/or no work to do, due to recent changes, in respect of which he gave no information. He confirmed that she could be considered for the Business Support Executive role. This position was supported by the Respondents (including the Third and Fourth Respondents).

(6) The Respondents (including the Third and Fourth Respondents) contemplated making the Claimant redundant unless she was able to carry out the Business Support Executive role. The Claimant said that the Respondents did not consult or notify her about this in advance of OH appointment on 13 May 2021 and she found out about the Respondents’ contemplation of her redundancy from the OH referral form.

(7) The Claimant says that on 14 July 2021, the Respondents rejected the Claimant’s grievance submitted on 9 July 2021, without investigating the same or offering a right of appeal. The Respondents says that the letter of 14 July was not a rejection of C’s grievance but was instead an appropriate response to C’s letter of 09 July.

(8) C says that between July and November 2021, the Respondents conducted a sham process to re-do the Claimant’s grievance, even though a decision had already been communicated to the Claimant. The Respondents deny that the grievance process was a sham.

(9) C says that between July and November 2021, the Respondents applied pressure on the Claimant to attend a grievance hearing even though (i) a decision on the grievance had already been made, (ii) she remained on sick leave and her health had deteriorated due to the Respondents’ treatment of her, and (iii) she had told the Respondents she would not to be directly involved in the process. The Respondents say that they attempted to arrange a grievance hearing with C in order to conduct a meaningful grievance process, but there was no pressure applied and the grievance process was concluded without C’s participation in accordance with C’s wishes.

(10) On 23 July 2021, the Sixth Respondent asked the Claimant to confirm if she would consider the Business Support Executive role, despite being aware it was unsuitable for her, C says R6 applied pressure on her accept the role; this is denied.

(11) The Respondents permitted the Sixth Respondent to continue contacting the Claimant even though she had raised serious concerns about him in her grievance. The Respondents say that R6 was merely carrying out his duties, and that direct email/telephone contact between C and R6 effectively ended in July 2021.

(12) In correspondence of 6 August 2021, the Respondents offered C the Business Support Executive role working four days a week in Beaconsfield with no immediate requirement to travel to London (i) which was insufficient to address her concerns, (ii) stated that the Claimant could attend a grievance hearing because she had provided detailed instructions to her legal representative, and (iii) suggested that in view of the nature of C’s letter of 09 July, “it was difficult to avoid the implication that its underlying purpose was to promote a settlement”.

(13) The Respondents (including with the support of the Third and Fourth Respondents) threatened the Claimant with the termination of her employment, including on 14 July, 6 August, 23 August, 29 November and 7 December 2021. The Respondents say it pointed out that the claimant’s continuing employment was at risk and denies threatening the claimant.

(14) The Respondents suggested that the Claimant was unable to adjust to organisational change, including on 23 August 2021.

(15) The Respondents refused to respond to the Claimant’s requests for further information about their letter of 14 July 2021.

(16) The Respondents applied pressure on the Claimant to consider an alternative role without first addressing her concerns about their treatment of her, including on or around 15 November 2021.

(17) On or by 11 November 2021, the Respondents rejected the Claimant’s grievance and did not give her an opportunity to appeal the outcome. Rs will say that C expressed no interest in appealing the outcome and did not complain at the time.

(18) The Respondents failed to respond to the Claimant’s data subject access request within the statutory time period, provided a partial response outside of the statutory time period and/or failed to respond to her concerns that no searches had been carried out in respect of the Fourth Respondent.

(19) The Respondents failed to respond to the Claimant’s questions about the scope of searches conducted in response to her data subject access request.

(20) On 29 November 2021, the Respondents invited the Claimant to a meeting to consider the termination of her employment after she had raised concerns about the contents of their response to the data subject access request.

(21) The Respondents discussed the termination of the Claimant’s employment on 7 and 14 December 2021, wrongly believing that she had rejected an offer of allegedly suitable employment. Rs will say that C did reject the offer of suitable alternative employment which was first made on 06 August and kept open until December 2021.

(22) On or by 15 December 2021, the Respondents (including with the support of the Third and Fourth Respondents) decided to terminate the Claimant’s employment on 16 December 2021 and refuse to pay her a statutory redundancy payment.

[18]If so, was any such treatment because of disability? Discrimination arising from disability (s.15 EQA 2010)

[19]Did the following ‘things’ arise in consequence of the Claimant’s disability:(1) Her sickness absence.

(2) Her inability to work full-time.

(3) Her inability to travel and/or commute to London for work.

[20]Did the events set out in paragraph19 above amount to unfavourable treatment of C by Rs?

[21]If so, did the Respondents treat the Claimant unfavourably because of the above ‘things’ arising in consequence of her disability?

[22]If so, can the Respondents show that any such treatment was a proportionate means of achieving a legitimate aim? The Respondents say that the legitimate aims were dealing with the Claimant’s grievance, finding her a suitable role in light of her disability and effectively managing its human resources to meet the demands of the business. Failure to make reasonable adjustments (ss.20-21 EQA 201)

[23]Did the Respondents apply the following provision(s), criteria and practice(s) (“PCPs”) to the Claimant:(1) The requirement to attend a grievance hearing during sick leave and/or applying pressure to attend a grievance hearing during sick leave.

(2) The requirement to apply for a role without suitable adjustments and/or applying pressure to consider applying for a role without suitable adjustments.

(3) The requirement of the proposed Business Support Executive role, including the requirement to partly work from London, whether from the outset or at some future date.

(4) The practice of concluding all internal processes and dismissing the Claimant during sick leave and/or without meaningfully engaging with her on potential alternative roles and/or adjustments.

[24]If so, did the application of any of the PCPs put the Claimant at a substantial disadvantage in comparison to those without her disability? She says she suffered the following disadvantages:(1) Severe stress and anxiety.

(2) Deteriorating ill-health.

(3) Prolonged recovery from illness.

(4) Dismissal.

[25]If so, were the Respondents aware, or should they have been aware, that the Claimant was likely to be placed at substantial disadvantage by the application of any of the PCPs?

[26]If so, did the Respondents fail to make adjustments which may have alleviated any substantial disadvantage? Indirect discrimination (s.19, s.23 EQA 2010)

[27]Did the Respondents apply the PCPs identified at paragraph 23 above?

[28]If so, did the PCP put, or would it have put, those with the Claimant’s disability to a particular disadvantage? She relies upon the disadvantages set out at paragraph 24 above.

[29]If so, did the PCPs put, or would they have put, the Claimant at that disadvantage as compared with a hypothetical comparator whose circumstances, including their abilities, were not materially different to C’s ?

[30]If so, can the Respondents show that the PCPs were a proportionate means of achieving a legitimate aim? The Respondents say that the legitimate aims were dealing with the Claimant’s grievance effectively, finding her a suitable role in light of her disability, and the effective management of its human resources to meet the demands of the business. Harassment (s.26)

[31]Did the Respondents subject the Claimant to unwanted conduct, as set out at paragraph 17 above?

[32]If so, was such conduct related to disability?

[33]If so, did such conduct have the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? In deciding whether such conduct had the prohibited effect, the Tribunal must take account of the Claimant’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. Victimisation (s.27)

[34]Did the Claimant do a protected act by:(1) Making an allegation that the Respondents had contravened the Equality Act 2010, including by way of her grievance on 9 July 2021 and subsequent correspondence.

(2) Bringing proceedings under the Equality Act 2010, including by initiating Acas Early Conciliation on 6 October 2021 and presenting the first claim on 16 December 2021.

[35]Was the Claimant subject to the following detriments:(1) The Respondents failed to conduct a fair investigation into the Claimant’s grievance.

(2) The Respondents threatened to dismiss the Claimant.

(3) The Respondents refused to respond to the Claimant’s request for further information about their letter of 14 July 2021.

(4) The Respondents placed pressure on the Claimant to consider applying for the Business Support Executive role without suitable adjustments.

(5) The Respondents failed to respond to the Claimant’s data subject access request within the statutory period and/or her questions about the scope of the searches.

(6) The Respondents dismissed the Claimant on or by 15 December 2021.

(7) The Respondents withheld a statutory redundancy payment.

[36]If so, was the Claimant subject to any such detriments because she did a protected act, or the Respondents believed that she had done, or may do, a protected act? Findings of Facts14. We make these findings of facts on a balance of probabilities. Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.

15. Reference to numbers in square brackets are a reference to the bundle page numbers. References in the judgment to the Respondents are a reference to the First & Second Respondents. Otherwise, a Respondent will be referred to by the individual’s name or the number as a Respondent.

16. We found the Claimant to be a thoughtful witness whose evidence was predominantly truthful. The Claimant had a tendency to avoid answering questions where it might make others look bad rather than herself, although unhelpful to the Employment Tribunal did not detract from the Claimant’s veracity. We found Mr and Mrs Shaw’s evidence to be truthful but lacking in any dates of when things happened which was unsurprising given the passage of time. We found both Ranjan Singh and Aseem Sadana to be predominately truthful witnesses whose evidence was mostly consistent with the available documents in the bundle although it was clear to us that there were some documents missing and there were some issues we did not accept their evidence on. We found the evidence of Edward Hill, Carmelita Lubos and Sarah Sexton to be confused and inconsistent on many issues, whilst we did not consider that the witnesses were untruthful we considered that there was an element of post event justification which is why their evidence was so confused.

17. We also found the Respondents’ witnesses to be helpful witnesses who tried their best to recall matters that took place some time ago.

18. The Claimant started work on 14 July 2009 for the First Respondent as a personal assistant (PA) to Mike Shaw, the managing director of the First Respondent at that time and Anne Shaw (nee Payne as she was then), who was then executive director with responsibility for HR at the First Respondent. We refer to both Mike and Anne collectively as ‘the Shaws’.

19. The Claimant has no formal qualifications, having left school at 14, but by 2009 had substantial experience in the corporate world as a PA. The Claimant’s job as a PA with the First Respondent when she started was to look after the managing director with whatever he needed assistance with. The Claimant as the managing director’s PA would also look after the executive director and undertake any projects that were asked of her. The First Respondent was an SME business and so did not initially have a lot of structure. This led over time to the Claimant carrying out additional tasks to her PA role like taking on facilities projects, being involved in health and safety and project management with the IT director John Morton. Mike Shaw was adept at IT and a touch typist and so did not need any assistance with typing or any software programmes that are commonly used in the corporate sector from the Claimant. For example the Claimant never had any need to use PowerPoint, SharePoint or OneDrive whilst working as the PA to Mike Shaw. As the Claimant had not had significant exposure to standard Microsoft packages she was not familiar with PowerPoint, SharePoint or OneDrive. However, the Claimant would use Excel and Microsoft Word. Although the Claimant accepted that she did not use complex advanced features of Excel in her role.

20. Within a few months of the start of her employment, in 2010 the Claimant was diagnosed with pernicious anaemia [677-679]. In 2013 the Claimant was diagnosed with malignant Melanoma. This resulted in the Claimant having to take substantial amounts of time from work. Having recovered from the cancer and in remission, the Claimant was then unfortunately diagnosed with neuropathic pain syndrome (‘NPS’). The Claimant was supported by the Shaws. During this period of the Claimant’s employment, the Shaws exercised their discretion as employers to extend the Claimant’s sick pay beyond her contractual entitlement. We find that the First Respondent knew of the Claimant’s disabilities since 2013. Claimant’s previous role

21. In or around 2019 the Claimant requested to work part time 4 days a week rather than 5 days. The Claimant did not work on Fridays. The Claimant would still make up the time doing extra hours to the point that the Claimant would essentially be working 5 days in 4 days. The Claimant always made up for any time she took off for hospital/GP appointments or when she was off sick. The Claimant was described by Mike Shaw as a fantastic PA, doing everything that was asked of her and more.

22. In 2020 the Shaws agreed to sell the First Respondent to a private equity group called Marcol. Marcol are the controlling shareholder of the Second Respondent and has a seat on the board of the Second Respondent. Ranjan Singh was and is the CEO of the Second Respondent and has a seat on the board of Marcol. Aseem Sadana is the COO of the Second Respondent. A vehicle called Medtop Validium Ltd owned by Marcol was created for the purposes of purchasing the First Respondent and is the holding company of the First Respondent.

23. The sale took place in October 2020. On 6 October 2020 the Shaws stepped down from their role as directors of First Respondent. From March 2020, the First Respondent had instructed all the employees including the Claimant to work from home. The Claimant was told about the sale of the business in July 2020 the Claimant was the first in the business to be told. The Claimant met the prospective buyers in August 2020. At this meeting the Claimant was asked by Ranjan Singh to give him a summary of her career which she did.

24. When the First Respondent was sold to Medtop Validium, the Second Respondent had acquired 6 companies in quick succession in a 9 month period, soon after it was formed. The purpose of the purchases was to make the Second Respondent a pan-European leader in digital healthcare. The companies purchased were to provide different aspects of the digital healthcare market for the Second Respondent and the First Respondent was purchased for the Second Respondent to acquire a strong client base in corporate mental health. The Second Respondent was a primary shareholder in Medtop Validium as well as Marcol. When the First Respondent was brought under the control of the Second Respondent, they had also purchased another company called Doctorlink Innovations Ltd which was based in London/south-east. Doctorlink had an office in Beaconsfield virtually opposite the First Respondent’s offices where the Claimant worked. The other companies purchased were based in France, Germany and Ireland. The plan was to build a pan European leader in digital telehealth. The Second Respondent purchased a business to provide GP services (Doctorlink), a business to service 111 calls, a tech business to provide a medical grade assessment tool and the First Respondent was to provide mental health services. The Second Respondent went from 40 people to 800 people in the space of those 9 months. The Claimant described things as chaotic during that time and we accept that evidence. The Second Respondent went about trying to recruit to positions and integrating all the companies together.

25. In October 2020, the Shaws sent Aseem Sadana a profile document of a summary of the Claimant’s experience [466- 468]. This profile document was sent to Aseem Sadana on 29 October 2020 [469]. We find that Aseem Sadana did read the Claimant’s CV and he told Mike Shaw that it was a strong profile [470].

26. The Claimant met Aseem Sadana on 6 November 2020 on a virtual meeting and was introduced to Aseem Sadana by Anne Shaw (although Mike Shaw was present working in the background). At that meeting the Claimant told Aseem Sadana about her skills and background. However, at that meeting the Claimant was told by Aseem Sadana that he wanted her to be his executive assistant and that he wanted the Claimant to be an extension of him and top C-suite people and to undertake projects as and when required. The Claimant’s response was that was exactly how she worked for the Shaws. Aseem Sadana asked the Claimant to say goodbye to First Respondent executives John Morton (Operations Director) and Kevin Vallis (Commercial Director) and Birgit Lundgren (Clinical Director). We find that the Claimant’s role as the PA to the Shaws no longer existed after the sale to Medtop Validium. However, we find that the Claimant was redeployed when Aseem Sadana offered her the role of Executive Assistant on 6 November 2020 which she accepted. We find that Aseem Sadana accepted in his grievance interview that the Claimant was not told that in October 2020 that her role had changed [926]. This was reflected in the business structure where the Claimant was noted as Executive Assistant to the COO [263].

27. Around that time, it had been decided that the First Respondent’s Beaconsfield office should be closed because Doctorlink had an office across the road and that was to be maintained.

28. On the same day of 6 November 2020, [472] Mike Shaw sent an email to Aseem Sadana with the cost figures to close their Beaconsfield office. The Claimant had provided costs in an excel spreadsheet that Mike Shaw also referred Aseem Sadana to as an example of the standard of work that the Claimant could produce and was recommending the Claimant to Aseem Sadana. In the email Mike Shaw said that the staff were to be told that the office space issue would be reconsidered in the new year but the plan was for the staff to work from home. However, this turned out to be a temporary measure and the Second Respondent actually decided that the First Respondent’s staff would not work from home including the Claimant but would work at least some days from the various other offices of the Second Respondent from July 2021 (post lockdown). The First Respondent’s Beaconsfield office was closed by 24 December 2020 [480]. The Claimant had been given the responsibility to carry out this task and was commended by Ranjan Singh and Aseem Sadana for this work. We find that as part of her role Executive Assistant the Claimant would be given projects by Aseem Sadana including closing down the First Respondent’s Beaconsfield office.

29. As the Claimant had not had significant exposure to standard Microsoft packages and so was not as familiar with PowerPoint, SharePoint or OneDrive, Aseem Sadana was disappointed with the Claimant’s lack of skill in this respect. We accept this evidence that he had expected the Claimant to have advanced skills in the use of these packages.

30. In the Claimant’s first week working for Aseem Sadana, the Claimant was asked by Aseem Sadana to provide him with information. The Claimant’s evidence was that the First Respondent’s pre-acquisition system was not up to scratch, the Claimant couldn’t get into it and it kept crashing. The Claimant sent Aseem Sadana an email stating that she wasn’t able to do the task. The Claimant explained that she would come in at the weekend to complete the task. The Claimant received a phone call at 18:40 from Aseem Sadana who said to the Claimant that she shouldn’t let him down. The Claimant responded, ‘do you think I want to let anyone down’. Aseem Sadana’s evidence was that the Claimant said that she didn’t want to let him down and she was crying and upset. Aseem Sadana interpreted this incident as the Claimant acknowledging that she was not living up to expectations and that the Claimant was not happy with her job because she was struggling and seemed frustrated. We find that the Claimant’s skill level in respect of standard IT packages was not at an advanced level and that it was Aseem Sadana expectation that they would be. We find that whilst Aseem Sadana was disappointed with his expectations not being met, he did value the Claimant’s other skills and considered that the Claimant could be used in an executive assistant role but that she would need support in respect of the skills she was lacking and that could come in the form of a team of Executive Assistants an “exec support suite”. We find that Aseem Sadana had no intention of removing the Claimant from her post as his Executive Assistant at this juncture.

31. On 17 November 2020, Carmelita Lubos joined the Second Respondent as the Chief of People. Aseem Sadana emailed Carmelita Lubos to ask her to show the Claimant as both PA and admin on the organisation chart [478]. The organisation charts were being updated every day and were not dated or shared with staff.

32. Following the sale of the First Respondent and the purchase of the other companies there was concern about the possibility of redundancies. The Second Respondent was undertaking a programme to integrate all the companies together and at the time it was described as chaotic. Ranjan Singh held “All Hands Meetings” where he would provide information about and explain Health Hero’s intentions plans and developments, answer questions and comment on progress. At first these were held every fortnight, and later, once a month. All staff were expected to attend. At one of these meetings in December 2020 Ranjan Singh informed the business that there would be no redundancies. It was the Second Respondent’s intention that there would be no redundancies and the Second Respondent was recruiting staff. We therefore do not accept Ranjan Singh’s evidence that the Second Respondent had lost 50 million euros by January 2021 so there was a financial situation in January 2021 that meant redundancies were needed. It was not contained in Ranjan Singh’s witness statement and it was not mentioned in any documentation in the bundle. We find on a balance of probabilities that the reason for the 50 Million deficit arose from the expansion of the business and so it was something Ranjan Singh knew in December 2020 because when he was asked the question directly about what the deficit was attributed to, he evaded answering.

33. In January 2021, the Claimant and Sarah Sexton were moved to the HR department in order to provide some workplace support. The Claimant was doing administrative work to support HR but was not doing HR work. On 4 January 2021 Carmelita Lubos asked Sarah Sexton to manage the Claimant.

34. On Sunday 10 January 2021 the Claimant suffered from blackouts, seizures and loss of vision. At that time there was a concern that the Claimant’s cancer had come back and spread to her brain. The Claimant was booked for urgent scans at the hospital the following day. The Claimant texted Aseem Sadana, Anne Shaw and Carmelita Lubos to update them of her condition [494]. The Claimant attended hospital on 11 January 2021 when she was supposed to be at work. The Claimant was not able to get the scans done on that day and was booked for scans later that week. The Claimant returned to work in the afternoon. Knowledge of disability

35. On 12 January 2021, Aseem Sadana called the Claimant in the morning and asked how the Claimant was [504]. The Claimant explained to Aseem Sadana what had happened, the background to her hospitalisation and the history of cancer. Aseem Sadana was shocked and asked the Claimant to share this information with Sarah Sexton, which she did immediately after her call with Aseem Sadana. The Claimant told Sarah Sexton about what had happened to her on 11 January 2021 and went through her medical history saying that she had been diagnosed with melanoma years before and had ongoing health problems. Sarah Sexton encouraged the Claimant not to work or log in on Friday. We find that by January 2021 the Respondent knew that the Claimant worked part-time and was only working 4 days a week and did not work on Fridays and why. 36. On 14 January 2021, the Claimant told Sarah Sexton in an email of her Lymphedema [506] and asked about the policy on lifelong illnesses in another email [507]. Sarah Sexton responded that she would check with Carmelita Lubos [508] which she did and responded to the Claimant’s query all on the same date [509]. Edward Hill admits in his grievance investigation interview that he was told by Sophie Ashbury that the Claimant was disabled in mid April 2021 [933]. We find that the Respondent knew about all the Claimant’s conditions of malignant melanoma, neuropathic pain, seizures, temporary loss of vision and mobility issues from 12 January 2021 because the Claimant told Sarah Sexton knew about her all health issues and how they impacted the Claimant. They also knew that the conditions of long term neuropathic pain, residual lymphedema, seizures and cancer were disabilities.

[37]On 15 January 2021 the Claimant texted her colleague Julie Mayor about her health issues and stated, “I just can’t afford to lose my job”. [512] The Claimant took annual leave on 2 February 2021 to be able to attend a hospital appointment. [527] On 18 January 2021, the Claimant told the Respondent that she could not drive via an email to the Shaws which was shared with Carmelita Lubos. [513]

[38]The Claimant has a sick certificate dated 15 March for neuropathic pain. The Claimant was signed off until 12 April 2021 [572]. The next sick certificate was 12 April 2021 reason for sickness was again neuropathic pain [615]. The Claimant’s sick certificates dated 10 May 2021 [821] (period for the certificate was until 14 June), 14 June 2021 [773] (period for the certificate is until 31 July) are both for neuropathic pain/severe anxiety and stress. The sick certificate for 28 July 2021 was for neuropathic pain/ severe stress and anxiety, the period covered the Claimant until 20 September 2021 [865]. The sick certificate for 17 September 2021 was for neuropathy/ stress and anxiety, the period covered the Claimant until 6 October 2021 [880]. The sick certificate for 5 October 2021 was for neuropathy/ stress and anxiety, the period covered the Claimant until 16 November 2021 [888]. The sick certificate for 12 November 2021 was for neuropathy/ stress and anxiety, the period covered the Claimant until 15 December 2021 [967]. The sick certificate for 13 December 2021 was for neuropathy/ anxiety and stress, the period covered the Claimant until 7 February 2022 [984].

[39]We find that the sick certificates show continuing stress and anxiety which is severe from June-September 2021. The sick certificates show deteriorating ill health and prolonged recovery from illness. The constant swapping of the words stress and anxiety in the sick certificates led us to find that the Claimant’s stress and anxiety are inextricably linked.

[40]On 10 February 2021 Carmelita Lubos emailed Sarah Sexton to ask her to ask Aseem Sadana where the Claimant goes from a management perspective [530] Change to role?

[41]By 22 February 2021, it had been decided that the Claimant would with Sarah Sexton be part of “executive support suite” [534]. Issy White who had been Ranjan Singh’s Executive Assistant was struggling with the workload. Issy had come from a mergers and acquisitions background and was not from a PA or EA background like Sarah Sexton. Sarah Sexton had her suggestion that she be an Executive Assistant to Ranjan Singh and start date of 22 March 2021 as approved by Aseem Sadana [535].

[42]Around this time the Claimant expressed her concerns to Anne Shaw about her health and the security of her job. The Claimant’s evidence was that when on 14 January 2021 she had asked Sarah Sexton about the Second Respondent’s policy on life long illness [506], Sarah Sexton had referred her back to her contract of employment with the First Respondent [509]. The Claimant said that this led her to ask Anne Shaw to tell her a summary of her contract of employment. Anne Shaw’s response was to send the Claimant an email titled “thoughts” with the Claimant’s contractual entitlement to sick pay as 12 weeks’ pay and a redundancy pay calculation where the Claimant’s termination date was either before 14 July which is the Claimant’s work anniversary or after 15 July. [536]

[43]The Claimant’s evidence was that she was adamant that she did not specifically ask for a redundancy calculation and was not thinking about leaving her job at that time at all. Anne Shaw had provided the redundancy figures because she is a thorough person. The Claimant’s evidence was at no point did she have a discussion with Anne Shaw about settlement figures upon which the Claimant was prepared to leave her employment. Anne Shaw’s evidence was that the reason she provided the redundancy calculation was because the Claimant had expressed to her anxiety about her position financially; her evidence was that there was no discussion of redeployment or dismissal with Aseem Sadana or Ranjan Singh in relation to the Claimant before she went off sick. Anne Shaw said that such a request for redundancy figures was not unusual, as other members of staff had made that request of her. Mike Shaw’s evidence was that he had no knowledge of the Claimant discussing with his wife settlement figures and he had not discussed it with the Claimant himself.

[44]We find that the Claimant did ask Anne Shaw for redundancy figures but it was because she was concerned that the Respondent might make her redundant and she wanted to know what she would get if that happened. Both the Claimant and Anne Shaw gave evidence that there were constant discussions about redundancy in the business at the time as matters were chaotic. The Claimant was concerned about losing her job which was understandable as the Claimant’s health was very poor at the time and the Claimant admitted in evidence that the doctors were concerned that the cancer may have returned. The Claimant was trying to plan for her future if the worst case scenario arose. However, we accept the Claimant’s evidence that she had no intention of leaving the Respondent at that stage. This is supported by the Claimant’s text in January 2021 [512] to Julie Mayor that she did not want to lose her job. The Claimant was not looking for a settlement; the opposite was true; she wanted to stay working.

[45]The Claimant was struggling with pain management and decided to take some time off work in order to manage her pain. On 23 February 2021, the Claimant requested annual leave from 8-11 March 2021 in order to trial her medication for pain management [537]. The Claimant told Sarah Sexton of her pain management trial [551 & 552] on 3 March 2021. The Claimant was off sick on 25 February 2021 [542 & 543].

[46]On 1 March 2021, Edward Hill joined the Second Respondent as Group Senior HR Manager. [932] Prior to that Sophie Ashbury HR manager Doctorlink was dealing with the Claimant’s HR matters.

[47]On 3 March 2021, Sarah Sexton received an email from Carmelita Lubos, containing text messages that Carmelita Lubos had with Suzanne Ash in compliance [553]. Suzanne Ash had asked in the text messages whether the Claimant would be a suitable option to be Group Health & Safety Lead and needed to know the following day. This was not a standalone role but would have included the Claimant taking up duties along with her role at the time. The Claimant did have experience in health and safety which Suzanne had been told of. Carmelita Lubos and Sarah Sexton both agreed that the Claimant had enough on her plate and they didn’t want to put more pressure on the Claimant. However, the Claimant was never spoken to about these responsibilities, Sarah Sexton gave evidence that she thought that it was appropriate that the Claimant wasn’t spoken to about the responsibilities because the Claimant did not have qualifications in health and safety even though she had not asked the Claimant about her qualifications and neither did she know if this was correct or not.

[48]We find that as no discussion was had with the Claimant, Sarah Sexton and Carmelita Lubos assumed that because of the Claimant’s health issues it would not be appropriate for the Claimant to undertake these responsibilities and that is what they were referring to when they stated ‘pressure’ in the email correspondence regarding this issue. 4 March 2021 meeting

[49]On 4 March 2021 at an HR meeting, Carmelita Lubos announced that the Claimant and Sarah Sexton were leaving HR to work in another part of the business [557]. The Claimant knew nothing about this change in advance. The Claimant described it as a shocking and confusing experience and was stunned. The Claimant said nothing during the rest of the meeting.

[50]Although Carmelita Lubos had told Sarah Sexton about the change to the organisation structure, the Claimant had not been told by Carmelita Lubos or Sarah Sexton who was her manager at the time. Carmelita Lubos had expected Sarah Sexton to have told the Claimant [940], and Sarah Sexton explained in the grievance investigation interview she had mentioned it but had forgotten to advise her of final outcome in her grievance investigation interview [929]. We accept that Sarah Sexton had forgotten to tell the Claimant and this was not intentional but was an oversight.

[51]Immediately after the meeting, the Claimant asked Sarah Sexton (on Teams) what was going on regarding the change. The Claimant told her of her concern that she knew nothing of the move. Sarah Sexton told the Claimant that both of them would be working in a new executive support role. The Claimant’s evidence was that Sarah Sexton told her that she would be working with her and she would have oversight of the role. The Claimant said that Sarah Sexton told her that ‘She would be able to protect me’. The Claimant asked Sarah Sexton what she meant by this and whether she was referring to the Claimant’s medical condition and her disability. According to the Claimant, Sarah Sexton did not respond and remained silent. However, Sarah Sexton’s evidence is that she had no recollection of this conversation. Sarah Sexton’s evidence was that if she would have used that turn of phrase, it was in relation to her supporting the Claimant in the context of the team. We find that Sarah Sexton did say to the Claimant that she would be able to protect the Claimant. We find this because Sarah Sexton does not deny saying the words and the Claimant’s evidence was clear and consistent on what Sarah Sexton said. We find that Sarah Sexton did say those words to the Claimant because of her disabilities. We find this because her reaction to being asked about whether she said this because of the Claimant’s health conditions was silence rather than denial. We find that those words made the Claimant feel that she needed protection and that would have caused anxiety.

[52]It wasn’t until the 4 March announcement, that the Claimant had any hint that she was to be moved to a different role. The Claimant said that she was told in the conversation on 4 March 2021 by Sarah Sexton that they were both to be working in a new executive support role and the Claimant could write her own job description. The Claimant responded that she would want the business to provide the job description. Sarah Sexton reassured her that the job was hers. We accept the Claimant’s evidence about what was said by Sarah Sexton and find that Sarah Sexton said these things to the Claimant, we find this because by telling the Claimant that the job was hers, Sarah recognised that she had made a mistake and was trying to take the sting out of the tail of the Claimant learning about the change for the first time in Carmelita Lubos’ announcement, Sarah was trying to placate the Claimant. We do not accept at that stage that the First or Second Respondents were creating 3 new roles as of 4 March 2021. The Respondents' witnesses’ evidence is wholly inconsistent on this issue.

[53]On the one hand when Carmelita Lubos was asked in the grievance investigation interview [940] who made the decision that the Claimant would no longer work in HR, in describing what the Claimant would do after the move from HR, she stated “The job was not really different to what SS was doing and had previously been doing before the acquisition, mainly just being in a different team.” And when Carmelita Lubos was specifically asked the question about what the Claimant would do after leaving the HR team [941], she repeats that the Claimant’s role would be the same, her background was a PA to the co-founders of Validium for 11 plus years – the role was very much the same. Furthermore, Sarah Sexton’s statement in the grievance investigation interview that “My understanding is that Sherren had the same job from November 2020 until she went off sick and was doing Aseem’s work” [929]

[54]Yet, in the same interview later in relation to whether the part time role in Beaconsfield offered was an existing role Carmelita Lubos states, “This role was created as part of the new org structure back in Feb/March and part of the Business Exec Support Team. Given the acquisition of Validium and her line managers leaving the business, her original role as PA to the cofounders no longer existed. She had been performing ad hoc activity from the acquisition in October up until this new role/team were created in Feb/March.” [942]

[55]We find that the move out of HR was a change in department only, not a change in the role. We find this because the email sent at the time on 4 March by Sarah Sexton to Carmelita Lubos stated, “Could we inform the team at this week's touchbase about Sherren and I moving away from the team?” [557] There is no mention of new roles. It was not seen as a change in role at that time by either Sarah Sexton or Carmelita Lubos. We find that the Respondent did want to create a hub team and this would not sit under HR but in its own function, as is evident from the structure chart. [263], [282] [296] [321]

[56]On 15 March 2021 the Claimant sent to the Respondent a sick note for 4 weeks without any adjustments until 12 April 2021 [572]. The Claimant says in her email accompanying the sick note at 13:38 that the 4 weeks is a minimum. Julie Mayor who is HR/ payroll sent the email and sick note to Aseem Sadana, Sarah Sexton and Anne Shaw [573]. Aseem Sadana then forwarded the email to Carmelita Lubos. We find that there was a discussion between Aseem Sadana and Carmelita Lubos about the Claimant being off sick, because following that email, Aseem Sadana sent an email at 18:20 to Carmelita Lubos asking her if she had discussed the Claimant’s email with Anne [573]. Carmelita Lubos’ response at 18:52 was “ No Anne and I are speaking tomorrow morning. Think we need to be careful with whatever we do while she is on sick leave”.

[57]We find that the reference to “we need to be careful whatever we do” is the first indication that the First Respondent and Second Respondent had decided that the Claimant’s employment should be terminated. We find it is Aseem Sadana who indicates to Carmelita Lubos the decision to terminate the Claimant. This is supported by Edward Hill’s email dated 17 March 2021 with the calculation of redundancy, where he states “happy to advice if you guys need more clarification” [589]. Edward Hill referenced ‘guys’ because he knew that the calculation was for Aseem Sadana.

[58]On 17 March 2021, Carmelita Lubos requests that Edward Hill [589] provide a calculation of termination for the Claimant. We find that the request for termination was not a request for redundancy payment because in the calculation table provided, Edward Hill states “You will probably need to add Holiday and Ex Gratia payment and solicitors fees into the costings”. We find that the reference to ex gratia indicates that this was not a genuine redundancy situation not least because Edward Hill admitted in evidence that he was only looking at redundancy in relation to the Claimant, he did not carry out calculations for other members of the Business Support Executive team e.g. Sarah Sexton or Issy White, but also because there would be no requirement for an additional ex gratia payment if it was a genuine redundancy. On 18 March 2021, Aseem Sadana shared the figure proposed with Ranjan Singh. Aseem Sadana also sought advice from the Shaws as to what kind of settlement the Claimant wanted. Welfare meeting on 27 April 2021

[59]Sophie Ashbury an HR manager previously at Doctorlink had been handling the Claimant’s absence from an HR perspective but in mid-April, Sophie resigned. Edward Hill took over the Claimant’s case. On 20 April 2021, Carmelita Lubos emailed both Sophie Ashbury and Edward Hill that “as expected Aseem wants this to progress more quickly”. [646] Carmelita Lubos’ oral evidence was that this was not Aseem Sadana wanting to move quickly to remove the Claimant but that he wanted the sickness management process to go as fast as possible.

[60]We do not accept Carmelita Lubos’ evidence on this point as it contradicts her email on 21 April 2021 [640] “On 21/04/21 Aseem expressed surprise that Sherren was still with us.” Furthermore, at paragraph 28 of Carmelita Lubos’ written statement she states, “At around this time we took external advice. The main points I took were that there were potential disability discrimination issues, and an OH referral was essential.” Aseem Sadana oral evidence was damming on this point in relation to receipt of the 15 March email [573] he said we were already thinking about how long this episode would continue and whether we would need to part ways, was there a settlement we should plan, and what would it take.

[61]On 20 April 2021 following an earlier meeting in the week between Edward Hill, Carmelita Lubos and Aseem Sadana, Edward Hill advised the First & Second Respondents that they would need to conduct a welfare meeting and obtain an occupational health report before any decision could be made regarding the Claimant [637].

[62]Edward Hill produced a timeline and options which were emailed to Carmelita Lubos and Sophie Ashbury. The options laid out only included a stage 1, stage 2 and stage 3 [636-637]. It was proposed at stage 1 that Edward Hill reach out to Anne Shaw as the First & Second Respondents wanted Anne Shaw to continue the relationship with the Claimant [637]. It was proposed at stage 1 that they have a welfare meeting with the Claimant so that they could refer her to Occupational Health. Stage 2 was set out as the OH referral which would determine whether the Claimant could return to work. Edward Hill then stated that the outcome of the OH referral could be used as “leverage” for stage 3, which is to either go down the ill health/ capability route or, if she is fit to return, then down the redundancy route. Edward Hill also stated that both options would fall under the without prejudice and subject to contract discussions. When Aseem Sadana was asked in evidence why the option of the Claimant returning to work to a job was not contained in stage 3, he responded that he could not say why. Edward Hill admitted in his evidence that there was no formal redundancy process at that time.

[63]We find that there was no option of returning to work laid out because the Respondents were not considering the Claimant returning to work as an option. They had by this time decided that the Claimant needed to leave the First Respondent and they were working out the best way to do that. This is evident when Carmelita Lubos stated on 15 April 2021 in reference to the Claimant as SS “ …SS is still thinking she can come back to a job” [636].

[64]On 21 April 2021, Edward Hill emailed Sophie Asbury that he would approach Anne Shaw to ask her to arrange a welfare meeting with the Claimant and agree to be referred to OH. [642]

[65]Edward Hill met with Anne Shaw on 22 April 2021 to ask her whether the Claimant would consent to attending an OH appointment and whether she would accompany the Claimant to a welfare meeting. The Claimant was reluctant but Anne Shaw explained to her that it was part of her obligations under her contract of employment. Anne Shaw did not express any concern that the referral to OH was at an early stage to the Claimant; however, she did think it was, and she considered that the Second Respondent had low confidence in the Claimant at that stage and that was part of the reason for the referral.

[66]On 26 April 2021, the Claimant was invited to a welfare meeting with Edward Hill for 27 April 2021. Edward Hill had asked Anne Shaw to arrange the meeting, due to her longstanding relationship with the Claimant. The Claimant understood that the predominant purpose of the meeting was to conduct a welfare check and to find out how she could be supported in her return to work. Anne Shaw forwarded Edward Hill a summary of the history of the Claimant’s health conditions. The Claimant’s summary included a reference to the Claimant's condition impacting her movement and that she had had a disabled badge since 2014. [678]

[67]Prior to the meeting Anne Shaw shared with Carmelita Lubos an email that the Claimant had sent to Anne Shaw 23 April 2021 for the purposes of informing the Second Respondent of the details of her health conditions and how she was affected by them for the meeting on 27 April [665-66]. In that email the Claimant states “I have been issued with a issued with a disabled badge since 2014”, I have a walking stick as an aid”, “ I am in debilitating pain 24/7”. [665]

[68]The Claimant attended the meeting on 27 April 2021 with Anne Shaw. During the meeting, the Claimant shared further details of her health and the impact her health was having on her. Among other things, Edward Hill asked the Claimant to attend an Occupational Health assessment, to which the Claimant consented. Edward Hill told the Claimant the role the Claimant was doing prior to going off sick was a temporary role and Health Hero (the Second Respondent) was currently assessing the role requirement. “Just to be clear the role you were doing no longer exists, and as part of redeployment there is a role available for you to apply/consider which is the Business Support Executive” [689]. Edward Hill confirmed to the Claimant that the role was not the same as the previous role, that as the C-suite executives were all based in London, the role required a commute to London 2-3 days a week.

[69]The Claimant explained that she was not able to drive and that she could not use public transport without financial implications and she could not afford public transport. The Respondents requested that the Claimant consider the Business Support Executive role and asked if the Claimant was willing to travel to London, as the role was available should the Claimant wish to be considered. Edward Hill confirmed that the Claimant would be sent the new job description the following week. The Claimant was anxious and stressed as a result of being told that she no longer had a role. The fact that the Claimant was upset was apparent to Edward Hill because following the meeting on 27 April 2021 he forwarded an email from Anne Shaw to Carmelita Lubos to tell her that the Claimant was “…is exhausted and upset, but appreciates the discussion this afternoon is a necessary part of the process”,[685].

[70]In the welfare meeting, the Claimant said that she had an interview with Aseem in November 2020 and had been told by Aseem that the role would slowly build up and that no letter or offer was made, nor confirmation of the new role.

[71]We find that Edward Hill did tell the Claimant that her role had been temporary on 27 April 2021. However, we accept the Claimant’s evidence was that she had not been told prior to the meeting of 27 April 2021 that her role was temporary. None of the Respondent witnesses were able to state when the Claimant was told that the role she was given by Aseem Sadana in November 2020 was temporary. We find that the Claimant was not told that her role was temporary at any time before 27 April 2021. We find as a matter of fact that the Claimant’ role was not temporary in any event, we accept that the role would evolve because the nature of what Aseem Sadana would be doing as COO would change once all the companies were integrated into Health Hero and the Claimant role was to be an extension of Aseem Sadana, but that was not the same at the role being temporary.

[72]We find that Edward Hill’s reference to “HH were currently assessing the role requirement etc” [689] was an indication of what had actually happened, in that since the Claimant became sick, the Respondents reassessed their requirements for the role. It was a new development and that is why it was a business update. This is further supported by Edward Hill’s email to Carmelita Lubos later on 28 April when in response to Carmelita Lubos’ email timed at 10:16 who had received a draft of the Claimant’s job description she stated “so you and Sarah need to ensure the role doesn't look like the role Sherren was doing”[712], Edward Hill responded “ ok. it is harder when i do not know exactly what they do, or what sherren was doing apart from aseems pa” [714]. In the meeting, the Claimant confirmed that she had seizures and blackouts. Edward Hill confirmed in evidence that a change to the job description that included the travel to London was made after the Respondent received the occupational health report. We find that the reason why the job description was so was so that they could create a job description that demonstrated that the Claimant’s role did not exist and that the Claimant could not do it because of her disabilities.

[73]We find that the effect of this “update” was that the Respondent was reneging on what Sarah Sexton had told the Claimant about the Business Support Executive role on 4 March 2021, when the Claimant was told that she would be joining Sarah Sexton in the executive support role and that she could write her own job description. The fact that Edward Hill used language like the Claimant would have to be “considered” for the role, and the role was available for her to “apply/consider”, illustrated that the Respondent was not going to give the role to the Claimant automatically, as had been previously indicated by Sarah Sexton. [703]. We find the reason for that was because of her long term sickness and this is evidenced by Aseem Sadana oral evidence (which we accept) that the Respondent was already thinking by 15 March 2021, how long was the Claimant going to be off work and whether they would need to part ways was there a settlement we could plan what would it take. He had to plan scenarios as there was the potential that she wouldn’t come back soon from being sick. We find that the Claimant’s reference to the financial implications of her taking public transport did not mean that the Claimant’s mobility issues were not a problem in the Claimant using public transport, as this was later confirmed in the occupational health report dated 10 June 2021.

[74]After the meeting on 27 April 2021 the Claimant was sent a copy of the notes of the meeting in an email timed 15:44 from Edward Hill [689-690] and told in the email that “Please feel free to amend as you see fit or if there is anything I have missed out.” [690].

[75]On 28 April 2021, the Claimant sent her proposed amendments of the notes to Anne Shaw to review [740-748]. In her version the Claimant stated “As highlighted to you in the meeting, all that the business has done is set back my recovery, caused further and additional anxiety” [748]. The Claimant reviewed the email and added her own comments and then it was sent to Anne Shaw to review for her [697-701, 704-710]. Anne Shaw denied that this was evidence that she was advising the Claimant at that time. We do not accept Anne Shaw’s evidence; we find that she was advising the Claimant at that time.

[76]We find that Edward Hill telling the Claimant that her role did not exist and that she had to apply for a role that specifically would require her to work full time and travel to London which she could not do without reasonable adjustments, did cause her additional anxiety and prolonged her recovery from illness. We also accept the Claimant’s evidence that the effect of the 27 April meeting and the events surrounding it compromised the Claimant’s health physically and mentally and knocked the Claimant’s confidence.

[77]On 29 April 2021, Edward Hill sent the Claimant a job description for the Business Executive role [718], the job description included full-time work and extensive travel. The job description was applicable to Issy White.

[78]We find that at the time the Claimant was sent the job description, the Respondent knew that the Claimant could not work full time as she had been working part time, had limited mobility and could not drive as the Claimant had informed them of her limitations in February 2021 and in her email dated 23 April 2021 to Anne Shaw. For the avoidance of doubt we find the Respondent knew the Claimant who was part-time and could not work full-time time had limited mobility and could not drive and so could not fulfil all the requirements of the job description. Although the job description applied to Issy White at no point was Issy White told that her job had disappeared. In fact Sarah Sexton’s evidence which we accept was that Issy continued to do personal family work like sorting out Ranjan Singh's car insurance during this period. Carmelita Lubos’s evidence which we accept, was that Issy White did go on to work as a business support executive.

[79]On 5 May 2021, the Claimant sent her response to Edward Hill’s minutes [754-758] to him. In it she stated “Sherren : The business is aware I am unable to drive for the foreseeable, therefore I am unable to get to a train station easily without a financial implication, which will also apply to train fares, the budget of additional travel cost does not work with my salary or finances” [756-757]. We find that the Claimant could travel or commute to work but walked with a stick, so her mobility was limited.

[80]On 6 May 2021 Edward Hill forwarded the Claimant’s response to his minutes to Carmelita Lubos suggesting that he was inclined to move towards a Without Prejudice conversation. [759].

[81]In response to the Claimant’s email dated 5 May 2021, Edward Hill emailed the Claimant on 7 May 2021 to ask that she “… please give some thought as to whether you wish to be considered for this role and let us know when you have reached a conclusion? Then the business can determine the next steps”. [765] Edward Hill also added in his response that “we will wish to consider the forthcoming medical report before moving forward.” [765]

[82]Edward Hill also reiterates, “In your email of 05 May you say you were unaware that the role was temporary. While it may be the case that you did not realise that the role you began in late 2020 was temporary, the situation today is that even the new role has disappeared. As you have been out of the business for eight weeks you may not be aware of the more recent changes, but the fact is that if you were to return to work next week now there would be no work for you to do in your existing role.” [765] We find that the reason why it was reiterated in the email that the Claimant’s role no longer existed and was temporary was force the Claimant to consider the “new” role that the Respondents knew she couldn’t do because her disabilities. We find that the Claimant’s role was not temporary and it did exist. The Claimant had been assured that the role was hers and told Edward Hill this, so the only reason to renege on this arrangement was to force the Claimant into a clean exit via a proposed redundancy.

[83]On 29 April 2021, Edward Hill submitted the Occupational Health referral document completed on 29 April 2021, stating “ Her role no longer exists due to the acquisition of the business for which Sherren works; we are considering the option of redundancy however there is an alternative role that is potentially available to Sherren but requires travel to London primarily but also to other parts the UK subject to business requirements.” [723]. The Claimant was sent an invitation to Occupational Health on 30 April 2021 for an appointment on 13 May 2021.However the Claimant’s oral evidence which we accept was that she was not ready for the first appointment, and she told this to her GP and Edward Hill. The Claimant said that Edward Hill didn’t come back to her to say you don’t or do need to attend appointment. The Claimant did attend the Occupational Health appointment on 13 May and explained to Dr Dainty, the Occupational Health physician what she felt. Dr Dainty asked the Claimant if she had the referral form and said that the Claimant needed this before they could engage. The Claimant said she responded that she could not face it, but Dr Dainty said that they could not go any further before she had seen the referral document. The Occupational Health appointment did not go ahead in substance and needed to be rescheduled.

[84]The Claimant received the referral document a few days after 13 May 2021. She saw for the first time that the Respondents were considering making her redundant. Whilst we accept the Claimant’s evidence that this was the first time redundancy was being considered, the Respondent had not made a decision on redundancy at that point and so consultation could still take place. However, we find that the Respondent did not tell her about the redundancy because it wasn’t genuine and they didn’t want to consult with her about it. They only wanted the Occupational Health doctor to tell them what the Claimant couldn’t do in relation to the new role not what the Claimant could do.

[85]On 25 May 2021 Aseem Sadana approached Anne Shaw to request that she explore with the Claimant an offer of 2 months ex-gratia pay on top of her notice pay. Anne Shaw asked what the offer was based on as it wasn’t based upon redundancy and refused to have any discussions with the Claimant about settlement and suggested that it should be the Second Respondent that should be having that conversation [788].

[86]On 27 May 2021 Mike Shaw was asked to provide a redundancy calculation for the Claimant [801] to assist discussions regarding the Claimant between Aseem Sadana and Anne Shaw.

[87]On 8 June 2021, Edward Hill was contacted by Mr Christopher Chauncy. The Claimant explained that Mr Chauncy was a solicitor who was a family friend who had represented her brother. Edward Hill explained that Mr Chauncy wanted to clear the air and wanted to have a meeting with Edward Hill before the Occupational Health appointment. Mr Chauncy wanted to talk about the Claimant’s job as the Claimant was feeling lost and confused with it all and Mr Chauncy wanted to get some information [809]. Edward Hill expresses in an email to Carmelita Lubos that the Claimant’s case “will likely go to ET” [816]. On 10 June 09:37, Mr Chauncy emailed Edward Hill [814- 815]. In that email he asked for an explanation of the situation and that he “wants further discussion as may be appropriate” [814]. Later on 10 June 2021 11:13 Edward Hill forwards Mr Chauncy’s earlier email that day to Carmelita Lubos stating that “I would normally make a decision on this, but this case is more complex due to the technical as aspect of her being covered under DDA and the nature of her current situation.” [813]

[88]The next appointment for the Occupational Health was booked for 3 June 2021, but it didn’t happen because the Occupational Health doctor was not available [798]. Another appointment was booked for 10 June 2021 which did take place [798]. Occupational Health reported on 10 June 2021 and the reasonable adjustments suggested on 10 June 2021 by Occupational Health to enable the Claimant to return to work were a part-time role up to 30 hours per week, working predominantly from home or an office close to home with assisted travel e.g. taxi door to door.

[89]The report stated, “She has not yet regained her previous levels of mobility. She still feels unsteady on her feet but reports she can currently walk with the aid of a stick or cane for a maximum of 5 minutes before needing to stop and rest. She is unable to drive at present because of the history of sudden incapacity from loss of consciousness. She is able to read and use a computer. She remains independent although regularly receives help from friends and family.” [827] The Occupational Health doctor concludes that the uncertainties around her cancer and her recent symptom presentation i.e. seizures are causing her to experience anxiety.

[90]The report also states that the Claimant can attend meetings with her employer, which are stressful but she would need a trusted colleague with her, she would attend with and rest breaks if the meeting was prolonged [827].

[91]On 14 June 2021, the Claimant was signed off sick for 6 weeks [820] because of neuropathic pain and severe stress and anxiety. The Claimant received the occupational health report on 16 June 2021 but did not read it until 18 June because it went into the Claimant’s junk mail [825].

[92]By email dated 23 June 2021 Edward Hill emailed Aseem Sadana and Carmelita Lubos that he has received the occupational health report and that he proposed that he discusses the report with the Claimant and then arranges a without prejudice meeting to discuss options of capability/redundancy or offer the new role on the basis she works from home and is part time [832].

[93]On 9 July 2021, the Claimant made a DSAR request via a letter to Carmelita Lubos [845-847]. In her request the Claimant requested that the search may be limited to Ranjan Singh, Aseem Sadana, Edward Hill, Carmelita Lubo, Sarah Saxton, Sophie Ashbury, Jules Mayor and Isabelle Whyte. The Claimant also stated, “However, in relation to those matters, please ask the Named Persons whether they are aware of others who are likely to have exchanged emails containing personal data relating to me.” [845]

[94]On 9 July 2021, the Claimant’s solicitors Armstrong Teasdale wrote to the first and second Respondents on behalf of the Claimant setting out the Claimant’s grievance [849-852]. In the letter, it referred to the Claimant being subjected to “unlawful discriminatory behaviour” since the Claimant disclosed her disability in January 2021. [850] The letter alleged that the Claimant had been targeted by the Respondents because of her disability and her sickness absence (paragraph 7) and that the Respondents had already decided to terminate her employment [852] and the Claimant had no consultation. Specific allegations were made against Carmelita Lubos in undermining the Claimant at the meeting on 4 March (paragraph a), Ms Sexton in respect of comments made about protecting the Claimant on 4 March (paragraph b) which implied that the Claimant needed protecting, Edward Hill in respect of his conduct at the 27 April meeting about the Claimant not having a role, the Claimant’s current role being temporary in nature, asking the Claimant to consider applying for the role, the role requirement of travel when the Respondent knew the Claimant could not travel and sending the Claimant a job description which they knew Claimant could not comply with (paragraphs c-g).

[95]In paragraph 6 of the letter dated 9 July 2021, the Claimant’s solicitors stated that the occupational health report dated 10 June 2021 “…confirmed that our client’s disability would not allow her to work full-time, travel to London two or three times per week and/or travel more widely. The Company and/or Health Hero have been aware of these limitations since at least January 2021.” [851-852]

[96]The letter dated 9 July 2021 asked at paragraph 10 that the allegations made in the letter be investigated as a formal grievance and explained that the Claimant was not well enough to participate in the grievance process and that any proposed meeting to discuss the outcome of the Occupational Health report should be postponed until the outcome of the grievance investigation [852]. The Claimant's Solicitors stated in the alternative, if the Respondents wanted to “explore an alternative resolution”, then they would be prepared to engage with the Respondents on a without prejudice basis. [852].

[97]The Respondents engaged a solicitor called James Chambers, who wrote back on 14 July 2021 to the Claimant’s solicitors [853] stating that the Claimant’s substantive role had disappeared when the former directors (the Shaws) had resigned and the Claimant was moved to a temporary role. Mr Chambers wrote that one of the changes on the acquisition of Validium is that the COO and the executive are now based in central London and that if the Claimant is to carry out the role then there is a reasonable expectation that she would spend at least some of her working time in the central London office. The letter acknowledged that the Claimant was “…offered an alternative Business Executive Assistant post in the new organisation”, and that “she feels she could work up to 30 hours per week, based at home on an office close to home with assisted travel.” [853]

[98]Mr Chambers wrote that the Respondents deny any discrimination in the letter. Mr Chambers states in the letter, “The key question arising from the medical report, it would seem, is whether such role exists and is practicable, and if not whether my client has a duty to create such a role by way of adjustment.” [853] Mr Chambers also states, “In these circumstances it is entirely understandable and is not discriminatory, for my client to address Ms Stevenson’s situation and to consider termination of her employment as a potential outcome;” [853]

[99]At the end of the letter dated 14 July 2021 Mr Chambers states that the Respondents are willing to consider a negotiated settlement. We find that the Respondents had decided in that letter that they did not want to deal with the Claimant’s grievance but wanted to negotiate a settlement. The Respondent indicate in the letter that they are willing to consider the possible adjustments in relation to working up to 30 hours per week or based at home or an office close to home with assisted travel and that they have not ruled out this possibility. But they do not explain why it is not possible for the reasonable adjustments to apply. Carmelita Lubos’ evidence was that she instructed the solicitor to write the letter in the terms that it was written because she regarded it as prelitigation and we accept this evidence. However, the effect of the rejection of the grievance in the letter did lead to the Claimant losing trust in the Respondent as set out in the 16 July 2021 letter [856].

[100]The Claimant’s solicitors responded on 16 July 2021 [856-858] to the 14 July 2021 letter. It is pointed out by the Claimant's Solicitors that the Respondents' denial of the allegations are made before they were investigated and there was no attempt to investigate them at that point. We find that the Respondents did not attempt to investigate the Claimant’s discrimination allegations, the Respondents were not in a position to deny the allegations when they had not yet investigated them but made a decision in an open letter that there was no basis to the Claimant’s allegations. In the letter dated 16 July 2021 the Claimant's Solicitors ask the Respondents to confirm that they have received the Claimant’s DSAR and will respond in a month.

[101]On 21 July 2021 Rebecca Allen HR Business Partner to wrote to the Claimant [859] to ask her before they investigate the grievance whether she was prepared to attend a grievance investigation. [859] We find that this question to the Claimant was an attempt to pressure the Claimant to attend the grievance hearing.

[102]On 23 July 2021 Edward Hill wrote to the Claimant “The current position is that we have an executive assistant role that would require you to travel to London two or three times a week as the executive team is based in central London. Otherwise we do not have a current role for you.” And then adds “Could you please conform whether you are prepared to accept the existing role that has been offered to you, and if not please explain clearly the adjustments that the company would need to make in order for you to accept the role. I am sure you understand that we cannot keep this vacancy open indefinitely.” [860] We find that the Respondents knew what reasonable adjustments the Claimant was asking for because they set out the reasonable adjustments in their solicitors’ response letter dated 14 July. There was therefore no sensible reason for the Respondents to ask the Claimant what reasonable adjustments she wanted; they knew and they acknowledged they knew. We find that this correspondence was an attempt to pressure the Claimant to accept the role without reasonable adjustments. In particular, the statement “we cannot keep this role open indefinitely”, considering that they had not made an offer of the role until that correspondence on 23 July from Mr Hill and the Claimant was still off sick, was made to compel the Claimant to make a decision on an unsuitable role.

[103]The Claimant’s solicitors referred to the email from Rebecca Allen dated 21 July and Edward Hill email dated 23 July in a letter to the Respondents dated 27 July 2021 [861-863]. The Claimant’s solicitors’ response states, “it seems that Mr Hill is continuing to be allowed to contact our client directly and be involved in this matter. That is wholly inappropriate given the concerns our client has raised and Mr Hill’s involvement in the same. Please immediately explain why Mr Hill has been permitted to continue contacting our client and confirm that Mr Hill will be removed from this matter with immediate effect.” [862] They confirm that the reasonable adjustments that the Claimant wants are set out in the 10 June 2021 occupational health report. The Claimant's Solicitors ask the Respondents, “Who at the Company and/or Health Hero was involved in giving your firm instructions to write the 14 July letter? 2. When were the instructions provided?” [861]. The Claimant’s evidence in relation to the necessity of the Respondents answering these questions was that she did not know. We find it was not necessary for the Respondent to answer these questions.

[104]The Claimant’s oral evidence was that her response to Edward Hill’s 23 July letter was contained in her solicitors’ letter dated 27 July 2021 [861-863]. We find that the Claimant was in “in utter shock at the manner in which she is continuing to be treated by the Company and/or Health Hero, including after raising her concerns in good faith” [862] as set out in the Claimant's Solicitors' letter dated 27 July 2021. We find that the 27 July letter was the first time that the Claimant indicated that she did not wish to be contacted by Edward Hill. However, we do not consider that it was unreasonable for the Respondent to permit Edward Hill to contact the Claimant. She had not stated before that she did not want contact. Edward Hill was the person dealing with her case as part of HR. The Claimant’s evidence was that she thought she was being played with because Edward Hill was asking about adjustments that he already knew about. Although the content of 23 July 2021 letter left a lot to be desired, we do not consider that it was inappropriate that it was Edward Hill to have contact with the Claimant per se. Edward Hill did not have any contact with the Claimant after the Claimant's Solicitors' letter dated 27 July 2021.

[105]By letter dated 6 August 2021 from Mr Chambers, the Respondents offer the Claimant the role of business support executive stating “In order to clarify the position and in the hope of resolving the matter of your client’s role, my client is prepared to offer her the role of Business Support Executive, based in Beaconsfield, working four days each week. If she accepts, your client will report to Sarah Sexton, PA to the CEO, and will be expected to carry out work for the London-based Executive Team, but there will be no immediate requirement for her to work in central London. Please confirm whether your client wishes to accept this offer, and if not what further adjustments she would require for it to be acceptable.” [866]

[106]It is also set out in the letter dated 6 August 2021 “It is important that your client understands that if terms and conditions cannot be agreed, ultimately my client will have no choice but to consider terminating her employment.” [867]

[107]The letter dated 6 August 2021 also states “Your client has been asked when she could attend a grievance hearing, which could be conducted remotely, but she has not agreed to do so. As she has clearly been well enough to provide extremely detailed instructions to your firm about her complaints, and continues to instruct you in relation. To her employment, it is clear that she understands the issues and is capable of dealing with them. For these reasons my client does not consider it unreasonable to ask her to attend a grievance hearing in line with standard practice and the ACAS code.” [867]

[108]The letter dated 6 August 2021 concludes “Given the combative and accusatory tone of that letter, it is difficult to avoid the implication that its underlying purpose was to promote a settlement because your client does not wish to return to work. As you are aware, both sides have taken steps to engage as suggested by you, but without success.” [867]

[109]We find that this offer in the letter dated 6 August 2021 does not set out what the Claimant’s salary would be. We find that the reference to “no immediate requirement to work in central London” is ambiguous as it suggests that at some point, which is not immediate, the Claimant will be required to travel to London, which is not the reasonable adjustments suggested by the occupational health report. We also find that the Respondents’ solicitor’s letter was combative, but what one would expect in correspondence between lawyers. The Claimant had posed settlement as a possible option and so it was not unfair for the Respondents’ solicitor to point settlement as a possible motivation for the Claimant. Notwithstanding, we accept the Claimant’s evidence that she did not trust the Respondent and was shocked and hurt by the Respondent’s letter. We accept the Claimant's evidence that she did not want a settlement but wanted to stay working. We find that the letter of 6 August 2021 was telling the Claimant that there was a requirement for her to attend the grievance hearing.

[110]In response to Mr Chambers’ letter dated 6 August 2021 the Claimant's Solicitors write on 13 August 2021 [869-871] that the offer in the 6 August letter was an offer for the role of executive assistant but the Claimant had understood the job that was available was the role of business support executive and stated they want details of the terms of the alleged offer referred to in Edward Hill correspondence of 23 July 2021 and when this offer was made.

[111]The letter stated “open to considering suitable offers that take into account the reasonable adjustments she requires (subject to terms), as your client well knows, there are a number of serious concerns she has raised that remain outstanding (including those set out in this letter). Clearly, before the parties can meaningfully discuss our client’s return to work, those matters would first need to be resolved” [870]. However, we find that there is nothing raised in this letter that is a concern outstanding for the Respondents to resolve. The only outstanding issue is the answer to the Claimant's Solicitors' questions. We find that those questions were not concerns about the Claimant’s treatment.

[112]The Claimant's Solicitors go into great detail in the letter dated 13 August 2021 about the reasons why the Claimant cannot attend the grievance hearing making reference to the Claimant’s previous sick certificates which state the reason for being unfit to work as neuropathic pain and severe stress and anxiety which they said the Claimant says was caused by the Respondents actions and the fact that the Claimant’s grievance has been communicated clearly required no further input from the Claimant [871]

[113]In the letter dated 13 August 2021 the Claimant's Solicitors repeated their questions from the letter dated 27 July 2021 and asked further questions about how the alleged offer of a full time role came about. We find that the Respondents did not respond to these questions or the questions in the 27 July 2021 letter at any time. We find that these additional questions did not require an answer from the Respondents either.

[114]Following the Claimant’s solicitors' letter dated 13 August 2021, Mr Chambers said he was responding to all the Claimant’s solicitors’ correspondence since 9 July 2021, including the 13 August 2021 letter, by letter dated 23 August 2021. Mr Chambers wrote, “Please note that if your client refuses the role and does not wish to accept a severance package, my client will have no option but to contemplate terminating her employment if an alternative solution cannot be reached.” [873]

[115]The letter dated 23 August 2021 also added, “My client acknowledges that the changes since October 2020 have had a significant impact on your client’s role and that she has found the changes difficult to accept. Your client’s position has undoubtedly been made harder by the fact that she has long-term health problems. My client acknowledges that it is very likely more problematic for her than for others to adjust to new circumstances as a consequence of her health issues.” [873]

[116]We find that there was nothing to suggest that the Claimant did not accept the changes in October 2020; it is clear that the Claimant did adapt by engaging in training regarding her gaps in the use of Microsoft 365 and moving to the HR department, working on the closing Beaconsfield office project and accepting her new line manager. We find the comment had no basis in fact and was intended to disparage the Claimant. The only reason why the Claimant could not accept the business support role was because of her disabilities. We find that for the Respondents to then say that the Claimant was finding it hard to accept the changes was because of her physical limitations due to her disabilities was unreasonable.

[117]In September 2021, the Respondents decided to investigate the Claimant’s grievance and on 6 September 2021, Mr Chambers wrote to the Claimant's Solicitors to inform them that a grievance hearing had been arranged for 22 September 2021 and that it is hoped that the Claimant will attend [875]. On 15 September 2021, Mr Chambers wrote to the Claimant's Solicitors and stated, “It is hoped that your client will cooperate with my client in dealing with her grievance and moving towards a resolution.” [877]

[118]On 15 September 2021 the Second Respondent sent the Claimant an invitation to attend the grievance investigation [879]. The Claimant sent the Respondents a sick certificate dated 17 September 2021, which states that the Claimant was unfit for work due to severe stress and anxiety [880]. The Claimant's Solicitors responded to this invitation by letter dated 20 September 2021, stating that the Claimant cannot attend as she is not well enough to participate in any grievance hearing. [881] We find that whilst the sick certificate states that the Claimant is not fit for work rather than the Claimant not being fit to attend a grievance hearing, in light of the fact that the Claimant has made this point repeatedly that she is not fit to attend a grievance hearing and the Respondents’ letters make no mention of this, we find that this letter was additional pressure to the Claimant to attend the grievance investigation. It is only on the 23 September 2021 letter that the Respondents accept that the Claimant is not required to attend the grievance hearing because, after taking advice the Respondents decided that they could hear the grievance without the Claimant attending a grievance hearing. [883] We find that the Respondent had legal advice at least from 14 July 2021 and there seems to be no good reason why they decided in September and no earlier that the Claimant didn’t need to attend a grievance hearing. No more information came to light about the grievance. The repeated letters asking the Claimant to attend put undue pressure on the Claimant because the Respondent wanted to negotiate a settlement.

[119]Theresa Marks, HR of the Second Respondent, was appointed to investigate the grievance. Ms Marks interviewed Aseem Sadana on 18 October 2021 [925-927], Sarah Sexton on 19 October 2021 [928-931], Edward Hill on 20 October 2021 [932-937], Carmelita Lubos on 26 October 2021 [938-943].

[120]On 27 October 2021, the Respondents responded to the Claimant’s DSAR. The Claimant’s Solicitors wrote to the Respondents on 16 November 2021 stating that the Claimant has not received any emails from Ranjan Singh in the documents provided. [970] On 2 December 2021, the Claimant's Solicitors asked the Respondents to respond to their query regarding Ranjan Singh's emails by return [979]. The Claimant's Solicitors chased a response on 10 December 2021 [982-983] and stated, “we note your clients have failed to respond to our client’s queries in relation to the scope of the searches conducted in response to our client’s subject access request,”. In that correspondence the Claimant's Solicitors also refer to the Claimant’s deteriorating ill health [982] as the reason why she could not attend the meeting scheduled for 2 December 2021. Carmelita Lubos’ written evidence was that as far as she was concerned, the SAR had been addressed by 11 November 2021. But in oral evidence Carmelita Lubos stated that she was made aware in February 2024 but then clarified this was in relation to the disclosure. Aseem Sadana's oral evidence was that he was not involved in the request but that the IT team dealt with the request. However, later in evidence, Aseem Sadana stated that when he was told that there were missing documents he asked IT to do another search and send them over.

[121]We find that the DSAR response was provided outside the statutory time period and it was a partial response. The Respondent did not respond to the Claimant’s concern that no search had been done on Ranjan Singh. However, the request was complex the Claimant accepted this in evidence and that is why the response was delayed. 4 weeks was not sufficient time to comply. We accept Aseem Sadana’s evidence that he asked IT to do another search that included Ranjan Singh when he discovered documents were missing, as there are emails from Ranjan Singh in the bundle i.e. page 463.

[122]By this time, the Claimant was looking for alternative work. The Claimant made an application on 15 October 2021 to Paradigm housing [890], but the role was full-time and so the Claimant could not take it up. The Claimant accepted in cross-examination that she had checked out of returning to work by October 2021, but not by February 2021. However. we find that this was perfectly understandable as the Claimant had received the documentation from the DSAR, which indicated in the emails that the Respondents wanted to negotiate her out of the business.

[123]By letter dated 11 November 2021 [956-965] the Respondents found that there had been no discrimination as the outcome of the grievance investigation and the Claimant’s grievance was not upheld. There was no offer of an appeal set out in the outcome letter. The Claimant’s oral evidence is that she did not get an opportunity to appeal the grievance. Carmelita Lubos accepted in evidence that there was no appeal set out in the letter. We find that the Claimant was not given an opportunity to appeal and did not ask for an appeal. The grievance decision was a sham in that the decision was already made but it was legitimate for the Respondents to investigate and record what the Respondents’ position was regarding the Claimant’s grievance.

[124]On 15 November 2021, Mr Chambers wrote to the Claimant's Solicitors asking the Claimant to respond to the offer, having dealt with the Claimant’s grievance and her DSAR [968]. We find that this was a legitimate request by the Respondents to the Claimant to have a response to the offer as at that point there were no outstanding concerns that impacted the Claimant’s ability to consider the role. The Respondent stated on 14 July 2021 there was no discrimination and found by the outcome letter [956-965] of the grievance dated 11 November 2021 sent to the Claimant on 12 November [955] there was no discrimination.

[125]The following day on 16 November 2021 [969] the Claimant's Solicitors respond to the 15 November 2021 correspondence stating that the Claimant is still not in a position to discuss her to return to work as her health had continued to deteriorate.

[126]By early November 2021 the Respondents received confirmation that in October the Claimant had notified ACAS in respect of several named individuals, including Carmelita Lubos. Carmelita Lubos’ evidence is that it did not influence the Respondents' next steps.

[127]On 29 November 2021 [971-972], the Second Respondent emailed the Claimant with an attached letter dated 28 November 2021 which is titled “meeting to discuss the potential termination of your employment” [972] and stated in the letter “ As your substantive role has disappeared and you have declined twice to take up the suitable alternative role offered to you, the company must now consider terminating your employment.” It also stated, “ it is important for you to understand that if we cannot find a role for you that is acceptable, we will terminate your employment” [973]. The letter invites the Claimant to attend a meeting on 7 December 2021 to be conducted by video link and states, “At the meeting we will discuss your overall situation, any other roles that you may be able to undertake, and any adjustments you may require. It is important for you to understand that if we cannot find a role for you that is acceptable, we will terminate your employment.” [973] We find that the attempt to have a conversation with the Claimant about other roles that she may be able to do was an example of the Respondent meaningfully engaging with the Claimant about alternative employment.

[128]In the letter it also states “In the spring of this year you were invited to accept a role in the new executive support team, but you were unable to accept that role for health reasons. Subsequently in August you were offered a role with the same hours and location as your previous role – four days a week based in Beaconsfield with no requirement to travel to London, and with the same pay as before” [973] We find that the reason for this letter being sent to the Claimant on 29 November 2021 was because the Respondents felt that there was nothing preventing the Claimant from accepting the role and that she had not responded unequivocally.

[129]We find that in all the letters dated 14 July, 6 August, 23 August and the correspondence of 29 November 2021 the Claimant is threatened with termination of employment. We also find that in the correspondence sent on 29 November 2021 that the Respondent wrongly state that they made an offer in the spring of 2021 when it the Claimant was invited to be considered for the business support executive role. Furthermore, the offer in August 2021 did not state that the Claimant’s role would be as the same pay as before.

[130]On 2 December 2021, the Claimant's Solicitors wrote to say that the Claimant is not well enough to attend the meeting on 7 December 2021. [979]

[131]By email 8 December [980], the Respondents attached a letter dated 7 December 2021, inviting the Claimant to attend a meeting to discuss the termination of her employment. The meeting is set for 14 December “If you fail to attend the meeting or to respond to this invitation we will have no choice but to conclude that you do not wish to attend such a meeting and that you are content for a decision to be made about your employment without your input. It is important for you to understand that the decision could be to terminate your employment, and that you have declined to accept a suitable alternative role.” [981].

[132]By letter dated 10 December 2021 [982-983], the Claimant's Solicitors wrote to the Respondent stating that the offer made is not suitable because the business support executive role did not implement reasonable adjustments which allowed the Claimant to do the role and the offer of a role in August 2021 made it only a temporary reasonable adjustments in relation to the immediate requirement for the Claimant to work in London and that was totally unsuitable. [982-93]. Furthermore, the Respondent had made it clear that they had already decided to terminate the Claimant’s employment. So the Claimant was concerned that if she returned to work the Respondent would engineer her termination one way of the other. The letter also concluded “in relation to which she is in the process of issuing proceedings in the Employment Tribunal).” [983] The Claimant submitted a sick certificate dated 13 December 2021 stating that the Claimant was unfit to work until 7 February 2021 [984]. We find that this was an unequivocal rejection of the offer with a clear explanation for why the offer was rejected.

[133]The Claimant did not attend the meeting on 14 December. We accept Carmelita Lubos' evidence that she made a decision about the Claimant’s termination on 14 December 2021, but we find we have no notes of what took place on 14 December.

[134]By letter dated 15 December 2021 by Carmelita Lubos sent by email on 15 December 2021 to the Claimant, she is informed that her employment had been terminated and her termination date is 16 December 2021. The Claimant was to be paid in lieu of notice. The reason for dismissal set out in the letter is that the Claimant’s substantive role has disappeared and that the “Claimant has refused to accept a demonstrably suitable alternative.” [988] They also say that “Quite apart from the disappearance of your substantive role, it is apparent that, regrettably, the working relationship between you and your employer has completely and irretrievably broken down.” [988]. The Respondents also add “You have been continuously absent for work since March 2021 and have recently provided a medical certificate until February 2022, but we have not had any indication that you will accept the role that is available if and when you are fit to return. In these circumstances the company cannot reasonably be expected to keep the role open for you indefinitely.” [988-989]. The Claimant was offered an appeal. We find that the Claimant was not offered or paid a redundancy payment. The Claimant was dismissed whilst she had a current sick certificate.

[135]We find that in April 2021 of Business Support Executive was not an offer of a job but an invitation to apply for the role of Business Support Executive. The offer by Edward Hill on 23 July 2021 of an Executive Assistant role was not a suitable alternative employment as there were no reasonable adjustments applicable to that offer. This is supported by Edward Hill’s oral evidence that he was not aware that there was ever an offer of suitable alternative employment to the Claimant.

[136]The offer of 6 August 2021 of the business executive support based in Beaconsfield was not a suitable alternative employment. As the Claimant was entitled to have a reasonable expectation that the reasonable adjustments put in place would remain so until the Claimant’s disability no longer required them. It was nothing to suggest at that point that the Claimant’s disability was temporary in nature and although the Claimant had been told by her medical professionals in January 2021 that she was not to drive for 12 months, 12 months had not expired at by August 2021 and there was no suggestion by the Respondents that the reason for the not guaranteeing the reasonable adjustments of not traveling to London was because of the Claimant’s 12 month driving restriction. In fact, no explanation for not guaranteeing the reasonable adjustments was provided by the Respondents. Before the Claimant was dismissed, there was no evidence that the Respondents proposed any other alternative roles to the Claimant or sent the Claimant a list of alternative roles. Although Carmelita Lubos’ evidence was that the reason for not offering the Claimant’s redundancy payment was because the Claimant refused suitable alternative employment, we do not accept that evidence. Carmelita Lubos was clearly wrong. The offer clearly was not a suitable alternative employment and Carmelita Lubos knew this as it did not apply the reasonable adjustments proposed by the occupational health report. We find that the occupational health report statement “The main perceived barriers and limits to undertaking this new role is that it is full time and secondarily involves a lot of travel. Sherren feels she could likely manage a part time role of up to 30 hours per week in the future which she did before. If she can continue to improve as she is at present, then she could also I think likely work predominantly from home or in an oﬃce close to home soon with assisted travel such as a taxi door to door.” The report also stated under the question “are any impairments temporary or long term”, “Many of Sherren's impairments are long term but they can I think be controlled and managed optimally with treatment.” [834] and “Sherren is taking regular medication and is currently stabilising on these with little or no side effect. Once this is achieved then her medication should not impair her abilities to do her job safely.” [835] This meant the Respondent knew that the Claimant’s disabilities were long term and therefore there was no reason for the Respondent to make an offer of temporary employment to work at Beaconsfield. The Law Time ‘Just and Equitable’

[137]Section 123 Equality Act 2010 sets out that time limits in respect of discrimination claims brought under the Equality Act 2010 (‘EqA’). The section 123 EqA 2010 says: “(1) [Subject to [[section 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. (2) Proceedings may not be brought in reliance on section 121(1) after the end of—

(d) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section—

(e) conduct extending over a period is to be treated as done at the end of the period;

(f) 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—

(g) when P does an act inconsistent with doing it, or

(h) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[138]The EAT in South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

EAT, establishes that where a Claimant wishes to assert that there is a continuing act or an act extending over a period of time, there must be findings made that there had been discriminatory acts committed by the Respondent in order to form part of an act extending over a period of time or a continuing state of affairs.

[139]In the recent EAT decision of Worcestershire Health & Care NHS Trust v Allen

[2024] EAT 40

HHJ James Tayler held “I cannot see any reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination. It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there is no absolute bar that prevents there being conduct extending over a period in such circumstances.” [paragraph 14]

[140]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996 (‘ERA 1996’). Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[141]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’. (Abernethy v Mott Hay and Anderson

[1974] ICR 323

, CA.)

[142]The EAT decision of Associated Society of Locomotive Engineers and Firemen v Brady

2006 IRLR 576

, EAT establishes the principles to be applied in determining the real reason for dismissal in an unfair dismissal matter. In summary Elias J explains in paragraph 71 that is open to a Tribunal to find that whether or not the conduct or whatever reason put forward by the employer is in principle is satisfied but the onus is on the employer to establish it was the real reason. Elias J comments “The Tribunal did not in fact have to go on to determine what the real reason was…. The only question is whether there is a proper evidential basis for their decision.” [paragraph 71, Elias J]. Elias J makes the following conclusions in paragraphs 78-79 that where an employer makes the potentially fair reason an excuse to dismiss an employee in circumstances where he would not have treated other in a similar way then the potential reason asserted for dismissal will not be that reason at all as that reason is not what has brought about the dismissal even if the potentially fair reason merited dismissal an Employment Tribunal is entitled to conclude that is not the true cause of the dismissal but is not just when an employee has been treated differently to others that a finding of unfairness can be found; “…once the employee has put in issue with proper evidence a basis for contending that the employer has dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the Tribunal is left in doubt, he will not have done so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the Tribunal to find the dismissal unfair even in the absence of such strong evidence. In a case of mixed motives such as malice and misconduct, the principal reason may be malice even although the misconduct would have justified the dismissal had it been the principal reason.” [Paragraph 79]

[143]Under s98(4) ERA 1996 “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.”

[144]Finally, tribunals must decide whether it was reasonable for the Respondent to dismiss the Claimant for that reason.

[145]If the reason is for redundancy, Employment Tribunals should have regard to the seminal decision in Williams v Compair Maxam [1982] I.C.R. 156. In Williams, the Employment Appeal Tribunal set out four factors that a reasonable employer might be expected to consider:a. Whether the selection criteria were objectively chosen and fairly applied.

b. Whether the employees were warned and consulted about the redundancy.

c. If there was a Union, whether the Union’s view was sought.

d. Whether any alternative work was available.

[146]The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.

[147]Under s122(2) of the Employment Rights Act 1996, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so. Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable. 52 Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services

[1987] IRLR 503

, HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed. Redundancy

[148]The right to be paid a redundancy pay is contained in section 135 Employment Rights Act 1996 (ERA) “(1) An employer shall pay a redundancy payment to any employee of his if the employee—(a) is dismissed by the employer by reason of redundancy, or

(b) is eligible for a redundancy payment by reason of being laid off or kept on short-time. (2) Subsection (1) has effect subject to the following provisions of this Part (including, in particular, sections 140 to 144, 149 to 152, 155 to 161 and 164).”

[149]The definition of redundancy is contained in section 139, which states: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to — … (b) the fact that the requirements of that business —(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”

[150]As to whether there has been a diminution in the requirements of the business for employees to carry out work of a particular kind is always a question of fact for a Tribunal to decide.

[151]Tribunals should not look to the employee's contract or, exclusively, his or her function alone to determine the question. The parties’ intentions or beliefs do not determine the issue either. The existence of a redundancy situation is a legal question.

[152]In considering whether the requirements of the business for employees to carry out work of a particular kind has ceased or diminished, in the EAT decision of Packman-v-Fauchon

[2012] ICR 1362

, the EAT confirmed that it is not necessary that the kind of work undertaken by the Claimant which needed to have ceased or diminished, the pertinent issue is one of causation. What matters is whether the dismissal was wholly or mainly attributable to that state of affairs, i.e. the diminution of the need for employees generally to carry out work of a particular kind.

[153]An employee is only entitled to a redundancy payment if he or she was dismissed in circumstances as defined by section 139 ERA 1996.

[154]Notwithstanding the provisions of sections 138-141 ERA 1996 describe where an employee may lose their right to a statutory redundancy payment. The criteria is in summary that:(i) An employer must give notice of dismissal because of redundancy;

(ii) An employer must make the employee an offer of re-employment;

(iii) The new job must start immediately after the old one ends or in any event within 4 weeks;

(iv) to withhold a redundancy payment, if the employee refuses the offer, the offer must have been (a) suitable for the employee and (b) the refusal was unreasonable (section 141 (2)-(4)).

[155]Whether alternative employment is suitable or not requires consideration both of the question of what is meant by suitable alternative employment, and what is meant by an unreasonable refusal of an offer. The matter of whether or not a job offer is suitable alternative employment is a question of fact for the Employment Tribunal. The Employment Tribunal must undertake answering the question in two stages. The first stage is whether or not the job offered is subjectively suitable for the Claimant. Relevant factors to be considered include whether the job utilises similar skills or experiences, whether or not the pay is suitable, the similar or improved status, the place of work and the nature of the work to be done. At this first stage, the test requires consideration of the Claimant’s actual contract of employment and job and whether the role offered is subjectively suitable for the Claimant. The second stage requires the Employment Tribunal to determine whether or not the Claimant has been reasonable in rejecting the role. Employment Tribunal ought to look to the Claimant’s reasons for rejecting the role and assess whether those reasons are objectively reasonable or unreasonable.

[156]In McKindley v William Hill (Scotland) Ltd

1985 IRLR 492

, EAT, the Employment Appeal Tribunal said of offers of suitable alternative employment: ‘To be intelligible the agreement must embody important matters such as remuneration, status and job description.’

[157]In considering stage 2 of the test, Phillips J stated in the EAT in Everest’s Executors v Cox

[1980] ICR 415

at page 418 : “The employee’s behaviour and conduct must be judged looking at it from her point of view on the basis of the facts as they appeared or ought reasonably to have appeared to her at the time the decision had to be made.”

[158]In Devon Primary Care Trust v Readman

[2013] EWCA Civ 1110

Lord Justice Pill provides guidance on the test to be applied in determining whether the employee unreasonably refused a suitable offer of employment. Pill LJ states at paragraphs 20 and 21 “…the first is whether, as the EAT found, the Tribunal erred in law in its consideration of whether the respondent unreasonably refused the offer of employment. If it did, the second issue is whether the EAT was entitled to substitute its own view, or whether it should have remitted the case to the Tribunal as fact-finding Tribunal.” Burden of Proof in Discrimination

[159]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.

[160]The burden of proof is set out at Section 136 Equality Act 2010 (“EQA 2010”). Section 136 EQA 201 says:- “This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[161]It is for the Claimant to prove the primary facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of any other explanation, that there has been a contravention of the Equality Act. If a Claimant does not prove such facts he will fail – a mere feeling that there has been unlawful discrimination, harassment or victimisation is not enough.

[162]Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise. Could conclude means “a reasonable Tribunal could properly conclude from all the evidence”.

[163]As set out above at the first stage the Claimant must prove “a prima facie case”. “However, the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that there has been discrimination. Each case is fact specific, and it is necessary to have regard to the totality of the evidence when drawing inferences. Once the burden of proof has shifted it is for the Respondent to show that the relevant protected characteristic played no part whatsoever in its motivation for doing the act complained of.

[164]It is, however, not necessary in every case for the tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal pointed out in Laing v Manchester City Council

[2006] IRLR 748

“If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.

[165]This approach to the burden of proof has been confirmed by the Court of Appeal in Ayodele v City Link and another

2017 EWCA Civ 1913

. Direct Discrimination

[166]Section 13 EqA sets out the statutory position in respect of claims for direct discrimination because of disability. “(1) person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.” 166. The comments of the Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA 33

, albeit a sex discrimination case under the pre Equality Act 2010, Sex Discrimination Act 1975, are still very much applicable to direct discrimination under the Equality Act 2010.. Mummery LJ giving judgment says at paragraph 56, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[167]It can be appropriate for a Tribunal to consider in a direct discrimination case, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was. (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] IRLR 285

) Indirect Discrimination

[168]Section 19 EQA 2010 sets out the statutory provision in respect of indirect discrimination as: “(1) A person(a) (A) discriminates against another

(b) (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— (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. (3) The relevant protected characteristics are— (a)[…] disability;”

[169]Baroness Hale in Essop v Home Office; Naeem v Secretary of State for Justice

[2017] UKSC 27

[2017] IRLR 558

, provides helpful guidance in approaching indirect discrimination claims which can be summarised as: (1)indirect discrimination does not require an explanation of why a particular PCP puts one group at a disadvantage when compared with another. (2) indirect discrimination does not require a causal link between the less favourable treatment and the protected characteristic (being concerned with 'hidden barriers which are not easy to spot'). (3) The reasons why one group may find it harder to comply with a PCP are many and various; they and the PCP itself are ultimately 'but-for' causes (in that if they are removed the problem is solved). (4) There is no requirement that every member of the group sharing the protected characteristic be at a disadvantage – in Essop some BME/older employees will have passed the assessment, just as some women chess players will have done well in scoring. (5) The factual disparity of impact (without the need for establishing its reason) can be established by statistical evidence (as the SDA 1995 and the RRA 1976 had made clear on their wording). (6) It is always open to the Respondent to show that its PCP is justified. This is an essential part of the action for indirect discrimination, which should not be underplayed by Tribunals; it involves no stigma or shame on the employer relying on it as a defence.

[170]Langstaff P provides guidance in Bethnal Green & Shoreditch Educational Trust v Dippenaar

UKEAT/0064/15

[2016] ELR 173

, in how to apply the burden of proof in section 136 EQA 2010 when considering a claim of indirect age discrimination. It is for a Claimant to show both the PCP and the disadvantage before applying the reversal. Justification in respect of indirect discrimination

[171]When considering the defence of justification, the role of the Tribunal is to reach its own judgment, based on a critical evaluation, balancing the discriminatory effect of the act with the business needs of the Respondent.

[172]The burden is upon the employer to show that the treatment is a proportionate means of achieving a legitimate aim. Unfavourable treatment because of something arising in consequence of disability

[173]Section 15 of EQA 2010 states: - (1)“A person(a) (A) discriminates against a disabled person

(b) (B) if – A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Subsection (1) does not apply if A shows that A did not know and could not have reasonably been expected to know, that B had the disability.”

[174]The correct approach when determining section 15 EQA 2010 claims is set out in the EAT decision of Pnaiser v NHS England and others

UKEAT/0137/15/LA

at paragraph 31.

[175]The approach is summarised as follows: (a)The Tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises; (b)The Tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment; (c)Motive is irrelevant when considering the reason for treatment; (d)The Tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly; (e)The more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact; (f)This stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator; (g)Knowledge is required of the disability only, section 15 (2) EQA 2010 does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;

[176]In the EAT case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

, Langstaff P, summarises the approach as, ''[t]he current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something,” and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.''

[177]In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

2019 ICR 230

, SC, Lord Carnwath giving judgment in the Supreme Court held that in most cases (including the present), little is likely to be gained by seeking to draw narrow distinctions between the word ‘unfavourably’ in S.15 EqA and analogous concepts such as ‘disadvantage’ or ‘detriment’ found in other provisions of the Act. Lord Carnwath referred those determining such questions to the EHRC Employment Code as providing helpful advice as to the relatively low threshold of disadvantage required to engage section 15 EQA 2010. Justification defence under section 15 EQA 2010

[178]Having already set out the position on justification under section 19 EQA 2010 indirect discrimination above. The principles espoused in the abovementioned section apply equally to justification under section 15 EQA 2010.

[179]In the case of indirect discrimination, it is the provision, criterion, or practice (PCP)] which needs to be justified whereas in the case of discrimination arising out of disability it is the treatment.

[180]Although it is worth noting that unlike section 19 where knowledge of the disability is not a necessary component, knowledge of the disability is a requirement to justify section 15 discrimination arising from disability claim. Reasonable adjustments

[181]The duty to make reasonable adjustments is set out in sections 20 – 21 EQA 2010, and in Schedule 8 (dealing with reasonable adjustments in the workplace).

[182]The pertinent parts of Section 20 says: - “(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.”

[183]Section 21 EQA 2010 establishes that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

[184]In the case of Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013]

UKEAT/0579/12

the EAT held at paragraphs 29 and 31 of the HHJ David Richardson’s judgment that the Tribunal should identify(1) the employer’s PCP at issue,

(2) the identity of the persons who are not disabled in comparison with whom comparison is made,

(3) the nature and extent of the substantial disadvantage suffered by the employee, and

(4) identify the step or steps which it is reasonable for the employer to have to take and assess the extent to what extent the adjustment would be effective to avoid the disadvantage.

[185]The statutory duty is for the Respondent to take such steps as are reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage. The test of “reasonableness” therefore imports an objective standard (see Smith v Churchills Stairlifts plc

[2005] EWCA 1220

.) Harassment

[186]Section 26, EQA 2010 sets out the legislative framework for harassment: “(1) A person(a) (A) harasses another

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

(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— ..disability;”

[187]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment:(a) Did the employer engage in unwanted conduct,

(b) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her,

[188]In a case of harassment, a decision of fact must be sensitive to all the circumstances. Context is all-important. The fact the conduct is not directed at the Claimant herself is a relevant consideration, although this does not necessarily prevent conduct amounting to harassment and will not do so in many cases.

[189]Richmond Pharmacology v Dhaliwal confirmed that not every comment that is slanted towards a person’s protected characteristic constitutes violation of a person’s dignity etc. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase.

[190]Mrs Justice Slade’s comments on how a Tribunal should approach the words “related to the protected characteristic” are helpful in the EAT decision of Bakkali v Greater Manchester (South) t/a Stage Coach Manchester

[2018] IRLR 906

[2018] ICR 1481

(EAT). She says, whilst it is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a Claimant – “related to” such a characteristic includes a wider category of conduct and as such requires a broader enquiry when making a decision. (See paragraph 31 (Slade J presiding)

[191]Tribunals must not devalue the significance of the meaning of the words used in the statute (i.e., intimidating, hostile, degrading etc.). They are an important control to prevent trivial acts causing minor upset being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. (Grant v Land Registry

[2011] IRLR 748

[192]Considering whether there has been harassment includes both a subjective and objective element. Underhill J in Pemberton v Inwood

[2018] EWCA Civ 564

summarised the position as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b))”

[193]Section 212(1) EQA 2010 says “detriment does not, subject to subsection (5) include conduct which amounts to harassment.” Section 212 EQA 2010 means that an action that is complained of must be either direct discrimination or harassment, but it cannot be both. Equally such an action cannot be both harassment and victimisation. It must be one or the other. This is because the definition of detriment excludes conduct which amounts to harassment. Victimisation

[194]Section 27 EQA 2010 sets out the relevant statutory provisions in respect of claims for victimisation.(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (j) B does a protected act, or (k) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[195]Section 39(4) EQA 2010 provides that an employer (A) must not victimise an employee of A’s (B): by subjecting B to any other detriment — s.39(4)(d).

[196]The issue of causation is fundamental to proving victimisation. In the seminal case of Nagarajan v London Regional Transport

1999 ICR 877

, HL: The House of Lords ruled that victimisation will be made out, even if the discriminator did not consciously realise that he or she was prejudiced against the complainant because the latter had done a protected act.

[197]Lord Nicholls put it like this in Nagarajan “Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances”.

[198]The Code explains that at paragraph 9.11- 9.12. “9.11 Victimisation does not require a comparator. The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act. 9.12 There is no time limit within which victimisation must occur after a person has done a protected act. However, a complainant will need to show a link between the detriment and the protected act.”

[199]A considerable length of time may elapse between the protected act being done and the detriment being suffered. (See Chambers v Abbey National plc ET Case No.2200567/98).

[200]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (See West Yorkshire Police v Khan

[2001] IRLR 830

) Analysis and Conclusions

[201]We heard oral submissions from both parties. During which Mr Stephen told the Employment Tribunal that the Second Respondent accepted liability for the acts of all the Respondents. The parties also provided written submissions. We took both the oral and written submissions into account in coming to our decision. Indirect Discrimination-issue 27 Issue 27 referencing issue 23(1)

[202]We have found that there was a requirement for the Claimant to attend the grievance hearing during her sickness period and we found that there was pressure applied to the Claimant by the repeated correspondence asking her to attend a grievance hearing. We found that the Claimant’s anxiety was related to her disability of seizures based upon the occupational health report. As we found that the stress and anxiety was inextricably linked we do conclude that the Claimant was disadvantaged by this PCP because she experienced severe stress and anxiety related to her seizures (which is a disability) and deteriorating ill health and prolonged recovery from illness; both of which related to her neuropathic pain which is also disability. We do not consider that dismissal was a disadvantage in respect of this PCP because the Respondent no longer applied the PCP after 23 September 2021 and the Claimant was dismissed on 16 December 2021.

[203]However, the Respondent did not require the Claimant to attend the grievance hearing and the Claimant had not provided any explanation of what reasonable adjustments were not put place that would have removed the disadvantage.

[204]We find the pool includes employees who raise a grievance at the First Respondent or Second Respondent. We that conclude that the Claimant had not provide sufficient evidence that a pool of those who are disabled who bring a grievance employed by the First Respondent or Second Respondent are disproportionately affected by the particular disadvantages relied by the Claimant. Without any evidence from the Claimant we cannot make any findings in respect of the disadvantages. In those circumstances the Claimant’s complaint is not well founded and is dismissed. Issue 27 referencing issue 23(2)

[205]We have found that there was a requirement for the Claimant to apply for the role of business support executive without reasonable adjustments. We conclude that the pool applicable is employees required to apply for any role within the Respondents because their substantive role has disappeared. The Respondents’ submissions suggest that Issy White as an evidential comparator, the job description of the role of business support executive was prepared for Issy White as well. However, Issy White’s substantive role had not disappeared.

[206]We conclude that the disadvantage relied upon of dismissal had a disparate effect on disabled employees because they are more likely to require reasonable adjustments to a role, and if their role had disappeared, it would be more likely to result in their dismissal. This particular disadvantage did apply to the Claimant. We do not accept that the Respondents’ legitimate aim was trying to find the Claimant a suitable role in light of her disability, because if that was the case they would have allowed her to apply for the role with reasonable adjustments. We accept there was a legitimate aim of effectively managing human resources to meet the demands of the business, however, the PCP was not a proportionate means of achieving that aim. It would have been less discriminatory to have made the reasonable adjustments. In the circumstances the Claimant’s complaint is well founded and succeeds. Issue 27 referencing issue 23 (3)

[207]We have found that there was a requirement of a proposed role of business support executive including the requirement to work partly from London. We conclude that the pool applicable are employees required to apply for the business support executive within the First and Second Respondents because their substantive role has disappeared. The Respondents’ submissions suggest that Issy White as an evidential comparator, as Issy White the job description of the role of business support executive was prepared for Issy White as well. However, Issy White’s substantive role had not disappeared so she is not in the pool. We conclude that that the disadvantage relied upon of dismissal did not have a disparate effect on disabled employees because the Claimant provided no evidence that any disabled employees who lived close to or were living in London, for which there was a requirement to work from London caused them that disadvantage. It wasn’t clear to us that the requirement would cause any one in the pool any of the disadvantages relied upon by the Claimant. In the circumstances, the Claimant’s complaint is not well founded and is dismissed. Issue 27 referencing issue 23(4)

[208]There was no evidence that there was a policy, practice or criterion requirement for concluding all internal processes and dismissing the Claimant during sick leave and or without meaningfully engaging with the Claimant on potential alternative roles and or adjustments. We found that the Respondent did dismiss the Claimant whilst she was on sick leave, but there was no evidence that would suggest that this was a practice. The dismissal was a one off event. We found that the Respondent did meaningfully try to engage with the Claimant on potential roles, though we also found that the First & Second Respondents didn’t send the Claimant any vacancy lists. We therefore conclude that the Claimant’s complaint is not well founded and is dismissed.

[209]The Respondent says that the reason for dismissal is by reason of redundancy or in the alternative, some other substantial reason in their written submissions. The SOSR is detailed as(a) the Claimant’s refusal to engage with Validium other than via aggressive and obstructive legal letters, focused only upon severance of the relationship, which evidenced the irretrievable breakdown of the working relationship and/or

(b) the Claimant’s refusal to consider or accept the only role available to her and/or

(c) her long term absence. However, in the Respondents’ grounds of resistance to the second claim form, they state that the reason for dismissal was redundancy and in the alternative some other substantial reason and/or capability [97]. The ‘some other substantial reason’ is detailed as the Claimant’s repeated and unreasonable refusal to accept the only role that was available to her, and Second Respondent requirement to fill the role that had been offered to the Claimant an irretrievable breakdown in the working relationship Longterm absence (nine months up to the point of dismissal) with no indication when the Claimant would return to work.

[210]We conclude that this inconsistency in respect of the alternative some other substantial reason is not only not supported by the dismissal letter which sets out the reason as redundancy but is also not supported by the evidence of the Respondents’ witnesses. Although we acknowledge that the Claimant chose to engage with her employer through solicitors, we do not conclude that it amounted to a failure of the Claimant to engage with her employer. The allegations that the Respondents made regarding the Claimant not accepting the offer of employment were also not valid. In as early as 23 June [832], Edward Hill wanted to discuss with Aseem Sadana and Carmelita Lubos the offer of redundancy or an alternative part time role on the basis that the Claimant worked from home. Notwithstanding the Respondents’ reflect this position in their solicitor’s 14 July correspondence of acknowledging what the Claimant was prepared to accept as they refer to the Claimant wanting the role to allow her to work up to 30 hours per week, based at home on an office close to home with assisted travel. Yet the Respondents did not make this offer to the Claimant, but made offers that did not guarantee the reasonable adjustments of working from home or an office close to the Claimant.

[211]The real issue for the Respondents was that they did not like the form of engagement through solicitors and the existence of lawyers’ involvement meant that the spectre of litigation loomed large. We therefore conclude that the reason for dismissal was not the SOSR that the Respondent has stated in the response form or in their written submissions.

[212]We also conclude that there was no redundancy situation in December 2021 when the Claimant was dismissed or at any time from November 2020. We accepted that the Claimant’s original role supporting the Shaws was gone in October 2020. But it was not the case that the only role available to the Claimant was the business support executive role in London. The Claimant had a role she had been offered a role by Aseem Sadana in November 2020 and had not been told at the time that the role was temporary, but she had done the role until she went off sick in March 2021.

[213]There was nothing suggested or inherent in the role that was temporary and this issue of temporary only arose after the Claimant went off sick and the Respondents learned of her disability. We found that Ranjan Singh said in December 2021 that there would be no redundancies and actually recruited. We heard no evidence that anyone else (not Sarah Sexton or Issy White) was put at risk of redundancy. There was no documentation at all of letters or emails being sent to the Claimant in October or November or December 2020 that the Claimant was at risk of redundancy. Nor thereafter was the Claimant told she didn’t have a role up to April 2021, nor were any lists of vacancies sent to the Claimant, or meetings labelled consultation on redundancy or any variation on those words.

[214]We conclude that the Claimant’s long-term absence would not have resulted in the Claimant’s dismissal. The Respondent did not start the capability process when they could have but we found they were not considering the Claimant returning to work as an option. The OH report clearly stated that the Claimant’s medication was working and that she could attend work with reasonable adjustments in June 2021.

[215]We are not convinced, therefore, that there was a real redundancy situation. We conclude that it was a sham. In those circumstances, there was no fair reason for the Claimant’s dismissal. Given our findings, it is difficult to see on what grounds the Claimant would have been dismissed considering the factual matrix in this case. The Claimant was unfairly dismissed. The Claimant's complaint is well founded and succeeds. Redundancy payment

[216]There was no diminishment of work with Aseem Sadana in respect of the role the Claimant was offered. We did not accept Ranjan Singh’s evidence that there was a financial situation leading to redundancy. There was no redundancy situation after October 2020 for the Claimant as she was redeployed and so the Claimant is not entitled to a redundancy payment. The complaint not well-founded and is dismissed. Direct Disability Discrimination & Harassment related to disability Issue 17(1)

[217]We found that the Claimant was told she was leaving the HR team, and this was unfavourable treatment; however, we do not conclude that it was because of the Claimant’s disabilities. We found that the Respondent genuinely was creating a hub team of EAs and this would not sit under HR but in its own function. In the circumstances, the complaint is not well founded and is dismissed.

[218]We found that the Claimant was told she was leaving the HR team, and it was clearly unwanted conduct because the Claimant found it a shocking and confusing experience and was stunned. However, we do not conclude that was related to the Claimant’s disabilities. We found that the First Respondent was genuinely creating a hub team of EAs and this would not sit under HR but in its own function. The purpose was not to violate the Claimant's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. In the circumstances, the complaint is not well founded and is dismissed. Issue 17(2)

[219]We found that Sarah Sexton did say those words, that this was unfavourable treatment because of the Claimant’s health conditions, as the words suggested that the Claimant needed protecting. In applying a hypothetical comparator, we consider that Sarah Sexton would not have said this to someone who was not disabled. In those circumstances, the complaint is well founded and succeeds. Issue 17(3)

[220]We found that the Claimant’s role was not temporary and her role did exist. To tell the Claimant that, was less favourable treatment. The First & Second Respondents did renege on their decision to move her into the role automatically and this was less favourable treatment also because the Respondents had never mentioned this until the Claimant was off sick and after the Claimant told them of her disability. The Respondents had already decided that they needed to consider whether they would need to part ways via a settlement because the Claimant had been off on sickness leave due to her disabilities. We conclude that a hypothetical comparator who was not disabled and off sick because of their disabilities would not have been told that their role was temporary or didn’t exist, or that an offer of the role would be pulled. In those circumstances, the complaint is well founded and Issue 17(4)

[221]We found that the cm was sent a job description that was written specifically so that it did not match the Claimant’s role, which was less favourable treatment. We found that the reason for this was so that they could create a job description that demonstrated that her role did not exist and that the Claimant could not do it because of her disabilities. Applying a hypothetical comparator of someone in the same circumstances as the Claimant who is not disabled, we conclude that the Sixth Respondent would not have done this to someone who was not disabled. By way of evidential comparator, there was no evidence that there was any discussion about making sure that the job description did not match Issy White’s role who was not disabled. In those circumstances, the complaint is well founded and Issue 17(5)

[222]We found that the reason why the Sixth Respondent reiterated in the email dated 7 May that the Claimant’s role no longer existed and was temporary was force the Claimant to consider the “new” role that the Respondents knew she couldn’t do because of her disabilities. We consider amounted to less favourable treatment. Applying a hypothetical comparator of someone in the same circumstances as the Claimant who is not disabled, we conclude that the Sixth Respondent would not have done this to someone who was not disabled. In those circumstances, the complaint is well founded and succeeds. Issue 17(6)

[223]We found the reason the Respondents did not tell the Claimant about proposing to make her redundant is because it wasn’t genuine and they didn’t want to consult with her about it. They only wanted the Occupational Health doctor to tell them what the Claimant couldn’t do in relation to the new role not what the Claimant could do. This was less favourable treatment. We conclude that this was because of the Claimant’s disabilities. Applying a hypothetical comparator of someone in the same circumstances as the Claimant who is not disabled, we conclude that the Respondents would not have done this to someone who was not disabled. In those circumstances, the complaint is well founded and succeeds. Issue 17(7)

[224]We found the reason why the Respondents rejected the Claimant’s grievance was because they didn’t want to deal with her grievance. They wanted to take the negotiated settlement option. Applying a hypothetical comparator of someone in the same circumstances as the Claimant who is not disabled, we conclude that the Respondents would have rejected the grievance of someone who was not disabled. In those circumstances, the complaint is not well founded and is dismissed.

[225]We found the reason why the Respondents rejected the Claimant’s grievance was because they didn’t want to deal with her grievance. This was unwanted conduct. We do conclude not wanting to deal with the Claimant’s complaints was related to the Claimant disability, the Respondent would have had to investigate possible discrimination and they did not want to because they knew the Claimant was disabled and therefore knew they were at risk and wanted to evade it because of the way they had treated the Claimant regarding her disability. We do not conclude that the purpose of the rejection was to violate the Claimant's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, but the effect was to violate the Claimant's dignity. In those circumstances the Issue 17(8)

[226]We found that it was legitimate for the Respondents’ to investigate and record what the Respondents’ position was regarding the Claimant’s grievance. Even though the decision was a sham and therefore less favourable treatment. We therefore do not conclude that the carrying out of the grievance process was because of the Claimant’s disability. In those circumstances, the complaint is not well founded and is dismissed.

[227]The grievance process was unwanted conduct because the Claimant considered that the decision was a sham. However, we do not conclude that the carrying of the grievance process in so insofar as it was investigated was related to the Claimant’s disability. In those circumstances, the complaint is not well founded and is dismissed. Issue 17(9)

[228]The Respondent had concluded on 23 September that the Claimant did not need to attend a grievance hearing based upon information that they had on 9 July 2021 regarding her grievance. Yet they continued to pressure the Claimant to attend a grievance hearing when the Claimant said that she was not well enough to attend. We conclude that this was unwanted conduct, it related to her disability because the Claimant was off sick due to her disability and was saying she could not attend because it. We conclude that the purpose and effect were to violate the Claimant's dignity. In those circumstances, the complaint is well founded and succeeds. Issue 17(10)

[229]We found that 23 July 2023 was an attempt to pressure the Claimant to accept the role offered in the email. We conclude that this was unwanted conduct. Our conclusion is that the unwanted conduct related to the Claimant’s disability because the offer was in respect of a job the Claimant could not do because of her disability and the Respondent knew this to be the case and so the Claimant could not accept the role. The purpose of the conduct was to violate the Claimant's dignity, as was the effect of the conduct, because the Claimant was in utter shock at the way she was being treated. In those circumstances, the complaint is well founded and Issue 17(11)

[230]Although we found that the Sixth Respondent continued to contact the Claimant even though she had raised a grievance, we do not conclude that this was because of the Claimant’s disability. The Claimant did not state until after 23 July that she was not happy with the Sixth Respondent contacting her, and Edward Hill did not have any contact with the Claimant after the Claimant's Solicitors' letter dated 27 July 2021. We found that Edward Hill contacting the Claimant was not the problem; it was the content of the 23 July letter. We conclude that the Respondent did not permit the Sixth Respondent to contact the Claimant because of her disability but because he was the HR person handling the Claimant’s case. In the circumstances, the complaint is not well founded and is dismissed.

[231]Although the contact from Edward Hill was unwanted conduct, we do not consider it was related to the Claimant’s disability. We found that it was Edward Hill contacting the Claimant because he was the person in HR with responsibility for the Claimant's case, but the contact did not continue when it was objected to. In the circumstances, the complaint is not well founded and is dismissed. Issue 17(12)

[232]We found that the offer of 6 August was not insufficient to address the Claimant’s concerns, as the concerns raised in the letter were not about the Claimant’s treatment. There was no less favourable treatment. We considered that the Respondents’ solicitors' reference to the Claimant being able to attend the grievance because she gave detailed instructions and the statement that in view of the Claimant’s letter dated 9 July, ‘it was difficult to avoid the implication that its underlying purpose was to promote settlement’ was combative. So we conclude that it was not because of the Claimant’s disability. We conclude that the Respondent would have instructed their solicitors to make the same points applying a hypothetical comparator. In the circumstances, the complaint is not well founded and is dismissed.

[233]We found that the offer of 6 August was not insufficient to address her concerns as the concerns raised in the letter were not about the Claimant’s treatment and whilst the statement that the Claimant could attend the grievance because she had given detailed instructions and the statement in view of the Claimant’s letter dated 9 July ‘it was difficult to avoid the implication that its underlying purpose was to promote settlement’ was unwanted conduct. But we do not consider it was related to the Claimant’s disability. It was normal combative correspondence between solicitors. In the circumstances, the complaint is not well founded and is dismissed. Issue 17(13)

[234]We found that the Respondents did threaten the termination of the Claimant’s employment on multiple occasions (correspondence of 14 July, 6 August, 23 August and 29 November 2021). We conclude that this was unwanted conduct. It was related to the Claimant’s disability because the Respondent wanted to get rid of the Claimant because of her long term sickness and disability. Furthermore, threats were related to the Claimant’s disability because they were also related to the Respondents’ saying that the Claimant was refusing to accept the roles offered to her which were specifically made without the requisite reasonable adjustments. We also conclude that the purpose of these threats were to create an intimidating, hostile, degrading, humiliating or offensive environment, as it is explicit in the threat that if the Claimant didn’t accept the unsuitable role she would be dismissed. In those circumstances, the complaint is well founded and Issue 17(14)

[235]We found that the Respondents’ statement that the Claimant was finding it hard to accept the changes in the 23 August letter was made because of her physical limitations due to her disabilities. This was less favourable treatment as it had no basis in fact and was made to disparage the Claimant. In those circumstances, we consider that the Respondent made these comments because of the Claimant’s disability. The Respondent did not provide an explanation in evidence as to why they instructed their solicitors to make these comments. We consider that the Respondents would not have made such comments to a hypothetical comparator as there was no reason to and the only reason the Respondent did it to the Claimant was because of her disability. In the circumstances we conclude that the Issue 17(15)

[236]We found that there was a refusal of the Respondents to respond to the Claimant’s requests for further information but we considered that those requests were legitimate not to answer. This was not less favourable treatment. The Claimant did not present any evidence from which we could infer that the reason why the Respondent did not answer the questions was because of the Claimant’s disability. The Claimant has not shifted the prima facie evidential burden and in those circumstances the complaint is not well founded and is dismissed.

[237]The refusal to respond was unwanted conduct; however it was not related to the Claimant's disability. The Claimant did not present any evidence that would suggest the reason why the Respondent did not answer the questions was because of the Claimant’s disability. In those circumstances, the Claimant was not subjected to Harassment related to disability and the complaint is not well founded and is dismissed. Issue 17(16)

[238]We find that it was legitimate for the Respondents to ask the Claimant on 15 November for the Claimant to consider the alternative role, as they had addressed the Claimant’s concerns about their treatment of her by that time. We conclude it was therefore not less favourable treatment. There were no outstanding concerns raised by the Claimant. In those circumstances, the complaint is not well founded and is dismissed.

[239]We do consider that the request for the Claimant to respond to the offer on 15 November 2021 was unwanted conduct. However, the Claimant had not at that point explained why the 6 August offer was not acceptable and there were no outstanding concerns when the Respondents sent the 15 November 2021 letter. Whilst there was an outstanding request in relation to the Claimant’s DSAR, this did not impact on the Claimant’s ability to consider the role as it was presented at that stage. The 15 November 2021 letter was pressure but the Respondents had addressed the Claimant’s concerns admittedly not as the Claimant might have wanted by then as had by then the First Respondent had done the grievance investigation, notwithstanding its status. In those circumstances, the complaint is not well founded and is dismissed. Issue 17(17)

[240]We have already concluded that the rejection of the Claimant’s grievance on 14 July was harassment related to disability. We found the decision of 11 November 2021 was a sham as the decision had already been made and that the First & Second Respondents did not give the Claimant an opportunity to appeal by 11 November 2021. This was less favourable treatment. The findings in relation to the rejection of the grievance are findings from which we can infer that the reason why the Respondent rejected the grievance on 11 November was because of the Claimant’s disability, however there are no findings that the Claimant referred us to from which we can infer the reason why the Respondent did not give the Claimant an appeal was because of the Claimant’s disability. The Claimant did not ask for an appeal or complain at the time that she did not get an appeal. We find that the Respondents would not have rejected the grievance of a non-disabled hypothetical comparator, as the evidence suggests the lack of consultation, the fact that no one else was told they were being made redundant or their role had disappeared, as well as Sarah Sexton telling the Claimant that she had a role was cogent. We conclude that the Claimant was discriminated against because of her disability. In those circumstances, the complaint is well founded and succeeds. Issue 17(18) &(19)

[241]The Respondent did fail to respond to the Claimant’s DSAR within the statutory time limit and this was less favourable treatment. But we found that the delay was because of the complexity of the request. We also found that the Respondent did not respond to concerns that a search had not been done in respect of the Fourth Respondent, Ranjan Singh or questions about the scope of the searches done but they did provide emails from Ranjan Singh. In those circumstances, the complaints are not well founded and are dismissed.

[242]The failure of the Respondent to respond to the Claimant’s DSAR within the statutory time limit and not respond to concerns that a full search had not been done in respect of the Fourth Respondent Ranjan Singh and or questions about the scope of the searches done was unwanted conduct. However, we do not conclude that the reason was related to the Claimant’s disability; the delay was due to the complexity of the request and the Respondent did do a search in respect of the Fourth Respondent. In those circumstances, the complaints are not well founded and are dismissed. Issue 17(20)

[243]We found that on 29 November 2021 the Claimant was invited to attend a meeting and after she had raised concerns about the contents of the Respondents’ DSAR response was less favourable treatment, however, we found that this was chronological and not linked events. We found that the reason for this letter being sent to the Claimant on 29 November 2021 was because the Respondent felt that there was nothing preventing the Claimant from accepting the role and that she had not responded unequivocally. In those circumstances the Claimant has not shifted the burden of proof and there is no direct disability discrimination. The complaint is not well founded and is dismissed.

[244]The letter of 29 November 2021 was unwanted conduct but was not sent to the Claimant for any reason that relates to the Claimant’s disability. The reason for this letter being sent to the Claimant on 29 November 2021 was because the Respondent felt that there was nothing preventing the Claimant from accepting the role and that she had not responded unequivocally. In those circumstances, the Claimant has not shifted the burden of proof and there is harassment related to disability. The complaint is not well founded and is dismissed. Issue 17(21)

[245]We found that the First Respondent did not make an offer of suitable alternative employment. The First Respondent therefore wrongly believed that the Claimant had rejected an offer of suitable alternative employment, this was therefore less favourable treatment. The letter of 7 December referred to the Claimant’s termination of employment because the Claimant had declined the offer of suitable alternative employment. There is no evidence of what was discussed on 14 December 2021 although we accept that Carmelita Lubos made the decision to dismiss on 14 December. We conclude that the evidence that throughout the Claimant’s employment since she told the Respondent about her disability, the Respondents acted to create a situation so they could dismiss the Claimant and the finding that Carmelita Lubos knew that the offer of alternative employment from 6 August was not suitable at all, are all facts from which we infer that the reason for the discussion on 7 December and on 14 December letter of dismissal was because of the Claimant’s disability. A non-disabled employee who rejected a job that the Respondent knew not to be suitable would not have been sent such a letter. The Claimant has shifted the burden and the Employment Tribunal does not accept the Respondent’s explanation that they genuinely believed that the Claimant declined an unsuitable offer of employment. They never made one as Edward Hill accepted. In those circumstances, the complaint is well founded and Issue 17(22)

[246]We found that the decision to terminate the Claimant’s employment was because of Respondent did not want the Claimant to continue employment because of her disability and the fact she was taking lots of sick leave. Aseem Sadana evidence’s, “we were already thinking about how long this episode would continue and whether we would need to part ways“ supported that finding. The Claimant had established facts from which the Employment Tribunal infers Direct Disability Discrimination. We do not accept the Respondents’ explanation that it was a genuine redundancy and that it was because the Claimant refused suitable alternative employment which is why they refused to pay her a redundancy payment. It was never a genuine redundancy the Claimant was not redundant at any point. No redundancy process was started in any way; there was no consultation at all. Although Aseem Sadana had concerns about the Claimant’s skill set, this was not sufficient to end the Claimant's employment as he continued to use the Claimant for projects. It was only after the Claimant explained her disability and the implications that the parting of ways began to be discussed. It was shortly after the Claimant was off sick in January 2021 that, in March 2021 Aseem Sadana started to discuss terminating the Claimant. There was no reason why the Respondent did not apply the reasonable adjustments to the role. The Respondent would not have treated a non-disabled hypothetical comparator with no material differences in that way as is evident from how Issy white who was in the same role as the Claimant, was treated. The Claimant was dismissed and denied a redundancy payment because of her disability. In those circumstances, the Issue 19- Discrimination arising from disability

[247]We have found that the Claimant’s sickness absence and inability to work fulltime were due to her disabilities. All the Claimant’s sick certificates mentioned that she was off due to her neuropathic pain and we found that the Claimant’s stress and anxiety was linked to her seizures which were also a disability. We found that the Claimant did not have an inability to travel or commute to work. The Claimant could travel but needed assistance as her mobility was limited.

[248]The list of issues does not refer specifically to the actual unfavourable treatment complained of but the particulars of claim of the Second Claim form is explicit in paragraph 40 [82] of what the specific treatment complained of is. All the paragraph numbers referenced in paragraph 40 of the particulars of claim of the second claim form cross reference in respect of the list of issues. References to paragraph numbers are a reference to the particulars of claim of the second claim form concerning complaints of discrimination arising from disability.

[249]We conclude that all acts by the Respondents mentioned in paragraph 40 of the particulars of claim of the second claim form amount to unfavourable treatment based upon our conclusions that such acts amounts to less favourable treatment in relation to the equivalent complaints of direct disability discrimination except for issues (paragraph 13) 17 (1), (paragraph 27(d)) 17 (11), (paragraph 27(e)) 17(12), (paragraph 27 (h)) 17(15), (paragraph 27 (i)) 17(16) because of our conclusions that these acts were not less favourable treatment or did not happen in relation to complaints of direct disability discrimination.

[250]Also (paragraph 27(c)) issue 17(10) does not amount to unfavourable treatment because we found this was harassment.

[251]We also conclude that issues 17(3), 17(4), and 17(22) were because of the Claimant’s sickness absence and so the Respondents did treat the Claimant unfavourably because of her sickness absence arising in consequence of her disability. Our conclusions in relation to these issues under direct disability discrimination apply equally to discrimination arising from disability. The rest of the issues where we found less favourable treatment were because of the Claimant’s disability, not because of something in consequence.

[252]We also conclude that the Respondents’ actions were not a proportionate means of achieving a legitimate aim of effectively managing human resources to meet the demands of the business it would have been less discriminatory to have made the reasonable adjustments.

[253]In those circumstances the complaints of issues 17(3), 17(4), and 17(22) are well founded and succeed. Reasonable adjustments- Issue 23

[254]We found that there were requirements in respect of issues 23(1), (2) and (3). However, we did not find that there was a requirement in respect of issue 23 (4).

[255]We also found that the PCPs did cause the Claimant to suffer the disadvantages relied upon, except issue 24(4) as the PCPs were no longer applied by the time of the Claimant’s dismissal. We found that the Respondent had knowledge of the Claimant’s disability by January 2021 and the implications and so the Respondents were aware that the Claimant was likely to be placed at a substantial disadvantage by 27 April 2021 when Carmelita Lubos was provided with an email setting out all the Claimant’s disabilities and the impact on her of those conditions, with the exception of the dismissal which had not happened in April 2021. The Respondents failed to make the reasonable adjustments of providing assistance in relation to travel on a long term basis which had been recommended by the occupational health report.

[256]There is no explicit reference to the steps that the Claimant asserts that the Respondent should have taken to remove the disadvantage in the list of issues. However, paragraph 27(c) of the particulars of claim of the second claim form does specifically say “the Respondents were aware that the role was unsuitable for the Claimant because it took no account of the reasonable adjustments that the Claimant required (and which the OH report had recommended) in order to perform it” [78]. The occupational health report refers to the recommended reasonable adjustments of a part time role, 30 hours per week, work predominantly from home or in an office close to home, with assisted travel such as a taxi door to door. [833] These are the steps that the Claimant relies upon, and this is explicitly referred to in the Claimant’s submissions (paragraph 11).

[257]We therefore conclude that the steps of part time role, 30 hours per week, work predominately from home or in an office close to home with assisted travel such as a taxi door to door would have avoided the disadvantage of dismissal in respect of the PCPs in issues 23(2) and 23(3) because had the Respondents applied the reasonable adjustments the Claimant could have accepted the role. The EAT decision South Staffordshire and Shropshire Healthcare NHS Foundation Trust v Billingsley EAT 0341/15 makes it clear that the effectiveness of the step need only have a chance of avoiding the disadvantage and we found that even though the Claimant lost trust after receiving the DSAR and the Claimant’s evidence was that she applied for roles in October 2021 because she had checked out of returning to work, before that the Claimant was saying through her solicitors that she was “open to considering suitable offers that take into account the reasonable adjustments she requires (subject to terms” [870].

[258]We also conclude that the steps would have avoided the disadvantage of 24(1), (2) and (3) because the Claimant was suffering from additional anxiety and was not able to recover quickly because of being told she had to apply for a role without reasonable adjustments and that she would have to work partly from London.

[259]We do not conclude that the steps would have avoided any of the disadvantages in relation to the PCP under issue 23(1) as whether the steps were taken would not have avoided the disadvantages resulting from the Respondents requiring the Claimant to attend a grievance hearing.

[260]We conclude that the Respondents failed to take the steps to avoid the disadvantages by making reasonable adjustments as set out in the occupational health report dated 10 June 2021 in relation to issues 23(2) & 23(3). In those circumstances. those two complaints are well founded and succeed. Victimisation

[261]The Respondents concedes that the 9 July letter was a protected act and we conclude that it was and falls under section 27(2) (d) Equality Act 2010. We also find that the initiation of ACAS early conciliation on 7 October 2021 was also a protected act as the conciliation mentioned specific individuals and Respondents would know that the Claimant was complaining of disability discrimination, as that was the basis of her grievance. We conclude that this is a protected act under section 27(2)(c). The Claimant’s claim form dated 16 December 2021 raised claims of disability discrimination and is a protected act under section 27(2)(a) Equality Act 2010.

[262]We found that the Respondents had already made a decision in respect of the Claimant’s grievance and so there was no fair investigation into the Claimant’s grievance. That clearly was a detriment. However, we do not consider that the reason why the Respondent responded to the Claimant’s 9 July letter (by not having a fair investigation) was because she had made a protected act. We accepted Carmelita Lubos’ evidence that she instructed the solicitor to write the letter in the terms that it was written because it she regarded it as prelitigation. Carmelita Lubos was the decision maker insofar as she was involved in giving instructions to the solicitors to write the 14 July letter in terms, and so the Claimant’s grievance did not materially influence the Respondents to make a decision on the grievance on 14 July.

[263]However, we do not accept that Respondents carried out the detriments under issues 35(2), (3), (4),(5),(6) or (7). Issues 35(2),(4),(6) were because the Claimant was disabled and or because of her sickness absence and inability to work full time and was not materially influenced by the Claimant’s protected acts.

[264]In respect of the Respondent’s failure to respond to the Claimant’s solicitors' request for information, we found that the questions did not relate to the Claimant’s concerns. In respect of issue 35(3), we therefore conclude there was no requirement to answer those questions as they did not converge with the Claimant’s concerns. We do not accept that the answers to the questions were privileged, as the Respondents suggest in their submissions but there was no requirement for the Respondents to answer the questions and that is why they didn’t answer. The reason the Respondent did not answer the DSAR within the requisite period was because the request was complex, the Claimant accepted this in evidence and so it would have taken some time to comply with. A 4 week period is not a long time in this context. Therefore, there was no detriment and so there could be no victimisation. The complaint is not well founded and is dismissed.

[265]In respect of issue 35(7) we have to conclude that the refusal to pay the Claimant redundancy pay was not a detriment. The Claimant provided no evidence that she felt any sense of grievance in not being paid the redundancy payment. We applied the EAT in Warburton v Chief Constable of Northamptonshire Police

2022 EAT 42

applying the “reasonable worker” test in Shamoon v Chief Constable of the Royal Ulster Constabulary and Chief Constable of West Yorkshire Police v Khan. Khan emphasises the nuance in applying the test of ‘a reasonable worker’. The EAT express that the test is not a wholly objective one. Griffith J states, “The key test for present purposes is for the employment tribunal to ask itself: Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? It is not necessary to establish any physical or economic consequence for this question to be answered in the affirmative” (paragraph 50). However, we found that the Claimant was not redundant and therefore it follows that she would not be entitled to a redundancy payment. So, without any evidence, we could not conclude that the refusal of something the Claimant wasn’t entitled to was a detriment. In the circumstances, the complaint is not well founded and is dismissed. Time

[266]All acts of discrimination or harassment prior to 8 July 2021 would be out of time if they are not a continuing act. We have found that the first act of discrimination was on 27 April 2021 and the last act of discrimination was on 15 December 2021. We consider relying on Allen that the discrimination was mostly carried out by the same people and was of similar nature in that it was all driven towards exiting the Claimant from her employment. In those circumstances, we consider that the acts of discrimination and harassment, reasonable adjustments and discrimination arising from disability are a continuing act and therefore allegations that predate 8 July 2021 are in time. Approved by: RECONSIDERATION

[1]I have undertaken preliminary consideration of the Respondents’ application for reconsideration.

[2]The basis of the Respondents’ application is that the Respondents want clarification on the findings of fact made in the written reasons sent 22 July 2025.

The Law

[3]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68 of the 2024 Rules of Tribunal Procedure).

[4]Rule 70(1) of the 2024 Rules of Tribunal Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[5]Rule 69 of the 2024 Rules of Tribunal Procedure says “Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.”

[6]In Outasight VB Ltd v Brown [2015] ICR D11, the Employment Appeals Tribunal (‘EAT’) confirmed that the law regarding the reconsideration of a judgment in light of new evidence did not change with the introduction of the 2013 or 2024 Tribunal Rules. The interests of justice test include the conditions set out in Ladd v Marshall

[1954] 3 ALL ER 745

. In summary: 1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, 2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, 3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

[7]The approach to be taken to applications for reconsideration was considered in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. In paragraph 34 of that decision, Simler P stated that: “a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[8]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[9]As is the case with all powers under the 2024 Tribunal Rules of Procedure, any preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.

Conclusion

[10]The Employment Tribunal’s written reasons sent 22 July 2025 clearly state at paragraph 14, “Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute.” I am content that the written reasons do exactly that. There is no ambiguity in the findings with respect of the matters raised regarding paragraphs 73, 75, 99 or 214 in the Respondents’ application that would result in the reasons being either unclear or requiring further findings in respect of the issues in the claim. I am satisfied there is no reasonable prospect of the original decision being varied or revoked. I must also have regard to the public interest requirement so far as is possible, there be finality of litigation. In the circumstances, the Respondents’ application for reconsideration is refused. Approved