Ms L Hill v St Paul's C of E VA Primary and Nursery School and Others: 3323824/2021 and 3316504/2021
EMPLOYMENT TRIBUNALS
Case No 3323824/2021, 3316504/2021
Between
Ms L HillClaimantSt Paul's C of E VA Primary and Nursery School and OthersRespondent
Before
Employment Judge SkehanMr Stephenson (instructed by Counsel) for claimantMs Moss (instructed by Counsel) for respondentDate 22 May 2025
REASONS
[1]Both counsel set out detailed written submissions and comprehensive oral submissions. I am grateful to both for their assistance. At the commencement of the hearing, I revisited the documentation submitted by the parties. The claimant had submitted a bundl (‘CB’) running to 390 pages. The respondent provided a separate bundle (‘RB’) stretching to 490 pages. References to page numbers below are references to these bundles unless otherwise indicated. I was provided with a witness statement from the claimant and a draft statement from Mr Nutton, (the Chair of Governors and third respondent).[2]There is no dispute between the parties in relation to the applicable law and I do not recite it in any detail herein. In general terms a tribunal can only grant interim relief if it decides that the claimant is likely to establish at a full hearing that the prohibited reason, (specified in section 103A ERA) was the reason, or principal reason, for the dismissal. ‘Likely’ in this context means more than just a reasonable prospect of success. While there is no need to establish that the claimant will succeed at trial, the tribunal should consider whether the claimant has a pretty good chance. The employment judge is required to make as good an assessment as he or she is properly able as to whether or not the claimant is likely to succeed and, by necessity this involves a far less detailed scrutiny of the respective cases of each of the parties and the evidence that will ultimately be undertaken at a full hearing. Where interim relief is sought in a whistleblowing case under s.103A ERA, the claimant must show that there is a pretty good chance that the ET will find that:a. She made her disclosure(s) to the employer;b. She believed that it or they tended to show one or more of the matters itemised in section 43B(1)(a)-(f) ERA;c. Her belief in that was reasonable;d. She believed the disclosure(s) was or were made in the public interest;e. That belief was reasonable; andf. The disclosure(s) was or were the principal cause of the dismissal.[3]With this in mind, I turn to the claimant’s case. Nothing within this decision constitutes a finding of fact. I have not heard any ‘live’ evidence and my conclusions have been reached following consideration of the available documentation and submissions only. By way of background, the claimant was a primary school teacher employed by the first respondent. The claimant says that she at all material times suffered from Long Covid or post viral fatigue and developed depression in May 2021. The claimant claims that her conditions amount to a disability as defined within the Equality Act 2010. The claimant sent her first ET1 to the ET on 9 September 2021. This litigation included claims of direct disability discrimination, discrimination arising from disability, harassment, victimisation and a failure to make reasonable adjustments. At this point the claimant remained employed. The claimant states at paragraph 30 of her first ET1 that she was told on 23 April 2021 to ‘prepare [her] self for dismissal’.[4]The claimant sent her second ET1 to the employment tribunal on 23 December 2021. The claimant’s legal claims are summarised in a schedule attached to the ET1 running to 30 paragraphs including an allegation that the claimant has been automatically unfairly dismissed on 16 December 2021 by virtue of S103A ERA 1996. The second ET1 also included the claimant’s application for interim relief. The matter is defended, the first ET3 was submitted on 14 October 2021 and the second ET3 submitted shortly before this hearing on 24 January 2022. I do not attempt to set out the background to this litigation in any detail and concentrate only on the circumstances relevant to the claimant’s application for interim relief.[5]The claimant’s employer and respondent to this application is a relatively small single entry form primary C of E school. The headteacher is Ms Cohen (the fifth respondent). The school has 12 teachers, some who work part-time and a total staff of 32 The claimant relies upon her grievance of 27 October 2021 and her appeal against the outcome of that grievance on 14 December 2021 both separately and cumulatively as protected disclosure[s]. The claimant’s grievance relates mainly to allegations that the respondent failed to comply with their obligation to make reasonable adjustments. The claimant highlights a large number of complaints and complains of bullying, harassment, victimisation, disability discrimination and failure to make reasonable adjustments on the part of the headteacher. The grievance concludes by requesting a reasonable adjustment for the governors to remove the claimant’s line management responsibility from the headteacher and allocate her line management to the deputy head.[6]The respondent submits that the Claimant made inflammatory, malicious and baseless but serious allegations against the headteacher, like the suggestion the headteacher might have concocted evidence against her [237-238 RB]. The respondent points to specific parts of the claimant’s grievance that they say indicate that the claimant could not have any reasonable belief that she had been bullied or discriminated against in the way that she has alleged and point to documentation potentially supporting their argument. For example: Excessive negative scrutiny by MC [234-238 RB] cf. FS saying MC was nothing but supportive [351-353 RB]; Failure to plan creating distressing uncertainty for C [235 RB] cf. C making clear it was difficult for her to plan because she did not know her future fitness [230-231, 334, 351 RB] “Dictatorial and uncompromising” [236 RB] cf. flexibility and compromise throughout, accommodating the C’s demands [225, 227-229, 232, 334- 335 RB] “Exceeding Doctor and OH recommendations… visit to the forest” [237 RB] cf. C saying she was looking forward to that trip [231 RB] “Pressure to increase return to work…” [237] cf. every step only proceeded if C agreed [227-229, 232, 334-335 RB] “No offers of assistance or help” [236] cf. admitted adjustments made, weekly support meetings, team meetings to help with feelings of isolation [232 RB]; Requirement to sign the visitors’ book and missing from birthday list [237 RB] cf. [174-175, 219-220, 337 RB]; MC saying “why do you sit a lot” as part of her bullying etc. [236 RB] cf. FS having said that, not MC [334, 352 RB][7]The claimant’s grievance was investigated by a third party (the seventh respondent), who produced a grievance investigation report. The claimant had sight of a draft grievance investigation, that the claimant says has been sent to her by mistake. The claimant thereafter received a substantially longer final grievance investigation. The claimant put considerable weight upon the expansion of final investigation report, saying Mr Nutton was instrumental in expanding the investigation report ‘so that it demonised me and provided what looked like a valid reason to dismiss me……’. The claimant’s grievance was unsuccessful and the outcome communicated by letter from Mr Nutton dated 7 December 2021. Within this letter an allegation of ‘upward bullying’ is made against the claimant and various conduct issues are set out. The letter says, ‘the governing body will need to consider these recommendations further and take any necessary steps in accordance with our policies and procedures’.[8]The claimant appealed the outcome of her grievance by 10 page letter dated 14 December 2021. Within the first paragraph the claimant says, ‘… I regard the investigation as grossly one-sided and biased in favour of an outcome desired by the school and quite possibly the investigator personally….’[9]Mr Nutton said in his witness statement that the, ‘…. The final straw was when the claimant wrote to me on 14 December 2021 with her appeal. She raised a number of wild accusations……, The school had instructed an independent investigator at considerable cost to us. If we had really wanted to engineer an outcome in our favour, which is denied, we could have just dealt with the grievance ourselves and not incurred significant cost…… It was clear that [the claimant’s conduct] amounted to misconduct under the school’s disciplinary policy. I carefully considered whether the schools policy should be followed……. I concluded that following the procedure would be futile and would lead to the claimant inevitably raising more malicious/unfounded allegations are questioning the integrity of the process….’. Mr Nutton called an extraordinary meeting of the governing body asking for volunteers to determine an issue relating to the claimant. Three governors volunteered to form a panel. They had no prior involvement in decisions relating to the claimant. They have not seen the claimant’s grievance appeal at the time they made a decision to dismiss the claimant. Mr Nutton presented a management case and recommended summary dismissal. The panel deliberated in private and returned later that evening with their conclusion that the claimant’s employment should be terminated summarily by reason of her misconduct or in the alternative some other substantial reason. We have not seen any minutes of the meeting and there has been no order for disclosure at this early stage of the litigation.[10]The claimant says that the panel who made the decision to dismiss had not seen her appeal letter. She says, ‘Had [Mr Nutton] told the panel about my appeal, I suspect I would not have been dismissed………. ‘.[11]Mr Stevenson submits that the only plausible explanation in the circumstances is that the claimant was dismissed because of her protected disclosures.[12]The respondent says that the principal reason for the claimant’s dismissal was a complete breakdown in the relationship between the claimant and the respondent or the claimant’s conduct. It says that the relationship between the claimant and school was so broken that there was no point in following any disciplinary procedure as it would not have made any difference to the outcome but would have exposed the school and its staff to yet further malicious and untrue accusations from the claimant. The respondent submitted that the claimant must also have considered trust and confidence to be entirely broken by reference to her questioning of the motivation behind the most trivial of events and reference is made to a birthday list and a signing in book. Ms Moss submits that to the extent that the claimant’s dismissal had anything to do with the grievance, it was because of the manner in which the grievance was raised, separable from the fact disclosures were made or because of the consequences of the grievance and similarly separable.[13]In considering this matter, although the claimant will have to prove all aspects of her claim, I have started with the issue of causation as it appears at first glance to be the most problematic. Other than the narrow points set out below, I do not consider whether the grievance and/or the grievance appeal is likely to constitute a protected disclosure in accordance with the statutory provisions.[14]The I note that:a. this is a claim where the claimant says that she was told in April 2021 that she should prepare herself for dismissal. The claimant subsequently issued proceedings and the alleged protected disclosures were made following this time. This timeline alone raises potential alternative reasons for dismissal other than the alleged protected disclosures.b. If it is found as fact that substantial elements of the claimant’s grievance are malicious and untrue complaints against the headteacher, there is an argument that such matters are unlikely to constitute protected disclosures as (assuming that they meet the other statutory requirements) the claimant will have had no ‘reasonable belief’ that the allegations’ tended to show breaches of the Equality Act. If the principal reason for the claimant’s dismissal is found to be a breakdown of relations due to those complaints, the section 103A claim is unlikely to be successful. I am unconcerned for the purposes of this application in any ‘ordinary' unfair dismissal or discrimination claim. While there has been no detailed consideration of the evidence, this is not a case of bare allegations made against the claimant, there is on the face of the documentation to which I have been referred, evidence appearing to support the respondent’s position.c. On the evidence available there appears to be an argument that the principal reason for the claimant’s dismissal, is related to the claimant’s conduct resulting in a breakdown in relationships that is properly severable from any alleged protected disclosure. This is impossible to assess without a detailed consideration of the evidence.d. While the final written investigation report is longer than the previous draft, I am unable to assess whether it is likely that any adverse inference can be drawn from the disparity without a detailed consideration of the evidence.e. I consider that there is considerable potential for different findings of fact relating to the part played by the claimant’s grievance appeal in her dismissal. While Mr Stevenson relies upon the grievance appeal as a protected disclosure either alongside the original grievance or on its own, the dismissing panel were unaware of the appeal. Mr Stevenson relies upon a manipulation type argument referring to Royal mail group Ltd v Jhuti [2019] UKSC 55, alleging manipulation on the part of Mr Nutton in concealing the alleged protected disclosure. The facts of this matter do not reflect those of Jhuti and Jhuti is likely to be applicable to a very limited number of scenarios. It is difficult to commence any assessment of the chances of success of such an argument in the absence of detailed consideration of the evidence of the decision makers and Mr Nutton.f. To be successful within her section 103A claim the claimant must show that the principal reason for her dismissal was the protected disclosure. A finding that the timing of the claimant’s dismissal has been influenced by a protected disclosure or that the dismissal has been tainted or influenced by a protected disclosure or ‘but for’ her grievance and grievance appeal she would not have been dismissed would be insufficient.[15]In summary, in review of the entirety of the evidence and submissions presented to me I am unable to conclude that the claimant has a pretty good chance of success or is likely to succeed with her claim that the alleged protected disclosure(s) were the principal reason for her dismissal contrary to section 103A ERA. As I have reached this decision considering mainly maters of causation, I do not go further to examine the other factors that the claimant would need to address to show a pretty good chance of success overall with this claim. I reiterate that this conclusion has involved a far less detailed scrutiny of the respective cases of each of the parties and the evidence than will ultimately be undertaken at a full hearing. The application is refused and is dismissed.[1]At the start of this trial the Claimant pursued a preliminary application for specific disclosure. This was raised through a note which was produced and sent to those representing the Respondents at 17.32 on Friday 6 September 2024. That was effectively the night before the commencement of this trial. This trial was originally listed for 20 days to commence on Monday 9 September so the application was produced very late in the day albeit that Miss Mckie, before us representing the Claimant this morning, indicated that there had been some mention of it over the telephone to Miss Moss during the course of Friday afternoon but no doubt the substance of that application was not made clear to Miss Moss until 17.35 on 6 September, so the application was made extremely late in the day[2]This is a case which has been ongoing for many many years and the orders for disclosure were made pursuant to a Case Management hearing which was before Judge Cowen on 21 February 2023, that is when this case was listed and various orders for disclosure were made and, as we understand it, disclosure was effected some time ago and there had been various other applications for specific disclosure.[3]It is worth mentioning that we have already got a liability bundle before us in excess of 5500 pages and a mitigation bundle of considerable size and we have got witness statements running to some 550 pages before us so the number of documents in this case is already extremely voluminous.[4]That application was then responded to by those who act for the Respondents, Miss Moss, in a note that we had before us this morning. It is worth us mentioning that we didn’t see the Claimant’s application until this morning because it hadn’t been forwarded on to us. That is not unusual when applications are lodged late in the day.[5]Essentially, the application falls into two parts. The first part is that the Claimant’s seek further disclosure of documents already disclosed but which have sections of those documents redacted and those are listed in the application. Those documents were disclosed some time ago and have been in the possession of the Claimant for some considerable time.[6]A second part of the application essentially revisits an application that was made to the Tribunal on paper back in May 2024 and 9 May when an application in writing was made by those acting for the Claimant and then subsequently there was a response from the Respondent’s solictors dated 28 May which we originally didn’t have before us but was supplied to us this morning. It then went before EJ Quill and he dealt with it on 19 August 2024.[7]So before we come to the two distinct aspects of this application it is, I think, worth mentioning that in all cases before the Tribunal, the Tribunal must have mind to the overriding objective which is at paragraph 1 of the Employment Tribunal Constitution of Rules of Procedure Regulations 2013, Schedule 1 (then in force).[8]The overriding objective is to enable Employment Tribunals to deal with cases fairly and justly which includes, so far as is practicable, ensuring that the parties are on an equal footing, dealing with cases in ways that are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings and avoiding delay so far as is compatible with the proper consideration of those issues and saving expense.[9]So dealing with the fresh application, that is the application advanced for the first time last Friday, being the application for the redacted documents that have already been the subject of disclosure to be produced without the redactions.[10]This is an application that is made very much late in the day. There have been a number of other specific disclosure applications and already we have an enormous bundle and an enormous amount of paperwork in front of this Tribunal for us to deal with during the course of this hearing. It is not appropriate for such an application to be made so late in the day. The application could have been made at a much earlier stage when those redacted documents were first disclosed. If the subject matter that has been redacted and the possibility and the wording that has been redacted been so important, then it would have been possible for the Claimant to have made the application many months sooner. They haven’t done so and in this Tribunal’s view it is not within the overriding objective for us to contemplate such an application at the eleventh hour.[11]We would also say that nobody knows what is underneath those redactions in terms of the nature of his application, the respondents obviously know but we don’t know and therefore we cannot assess whether what is under those redactions is relevant or necessary and one can only assume that the Claimant’s are pursuing something of a fishing expedition to see if there is anything under those redactions which may assist them at this stage. It may have been something that the Tribunal would have considered in more detail had it been made timeously but it hasn’t been and therefore, applying the overriding objective, that part of the application is refused.[12]Turning to the second part of the application, which is essentially the revisiting of the application made on 9 May that was before EJ Quill. It is a revisitation of that application despite the fact that Ms Mckie indicated to the Tribunal this morning that it was a fresh application under Rule 29, it relates to the same documents and those are a series of attendance notes that were made by a Miss Aida Smilovich of Wentworth Sherwood, who was involved in discussing with the seventh Respondent, aspects relating to the seventh Respondent being involved in producing an independent report. There were discussions but nobody knows what was said, even the respondents have not seen those attendance notes. Obviously the Claimants don’t know what is in them and we have no idea what is in them.[13]Judge Quill dealt with that application and sent a response on 19 August and in that response he indicated that it was his finding that legal advice of privilege did apply to those attendance notes and that in those circumstances they should not be the subject of specific disclosure unless privilege had been waived and he left that question open to the Tribunal.[14]It is not open for this Tribunal to reconsider the decision of EJ Quill other than in circumstances set out in Rule 29 of the Employment Tribunal Rules of Procedure and that is only where it is necessary in the interests of justice for us to do so. We are guided by a recent Employment Appeal Tribunal authority which is the case of Serco v Wells UKEAT0330/15/RN and in Serco v Wells the EAT set out some parameters to consider when one Judge is asked to revisit an Order that had been made by a previous judge and in that case the EAT said as follows: “A Case Management Order will not be susceptible to variation or revocation by a Judge of equivalent jurisdiction unless it is necessary for the interests of justice i.e. that there has been a material change of circumstances since the original order was made or the original order was based on a mis-statement or otherwise in undefined but rare and out of the ordinary circumstances”. So we now know that we cannot routinely revisit decisions made by colleagues as employment judges and employment tribunals, except in those circumstances and no submissions had been made to us by those representing the Claimant that there has been a material change in circumstances and we accept Miss Moss’ submissions that the position remains exactly as it was when Judge Quill dealt with this application in August pursuant to the application and the response from the parties on 9 and 28 May and in those circumstances we cannot interfere with the decision of Judge Quill.[15]It would, of course, have been open to the Claimant should they wish to do so to apply for a reconsideration of Judge Quills decision but no such reconsideration was pursued.[16]Therefore, we are bound by Judge Quills decision and therefore Judge Quill said there was advice privilege which protected those attendance notes and that they should not be disclosed save for in circumstances where privilege has been waived. We need to just deal with the waiver of that privilege and in that respect we had been referred to an authority by the Claimant and that is the case of The University of Dundee v Chakrobarty [2023] CISH 22. We are grateful to the Claimants for handing up that case and we have read paragraph 20 to which we were referred. We do not consider that waiver is engaged here and the reason for that is nobody knows the contents of those notes and it seems to us that this is a classic case of a fishing expedition where the Claimant was hoping to find something prejudicial to the Respondent’s case and in those notes, which nobody has seen, it is therefore impossible for us to conclude that there has been a waiver of privilege because we don’t know what is in those notes and in those circumstances waiver is not engaged.[17]We also do consider that the Chakraborty case is not on all fours with this, as pointed out by Miss Moss, as it relates to earlier versions of a grievance report which, in this case, have all been produced.[18]So, for the reasons that we have set out the application before us this morning is refused and we will not order the specific disclosure that has been requested. FULL MERITS HEARING RESERVED[1]The Claimant, who was employed as a teacher by the First Respondent, presented two claims to this Tribunal. The first claim under case number 3316504/2021 was presented on 9 September 2021. The second claim under case number 3323824/2021 was presented on 23 December 2021.[2]Across the two claims the Claimant pursues a suite of disability discrimination claims, a claim for unfair dismissal and a claim for wrongful dismissal. There have been a plethora of interlocutory hearings throughout this matter and we do not propose to repeat the content of those here. All of those are encapsulated in the various Judgments and Summaries and Case Management Orders of the various Employment Judges who sat on those hearings and are in the bundle before us.[3]This judgment is pursuant to a hearing listed for 20 days which commenced on 9 September 2024.[4]We had before us an inordinate amount of documentation. The liability bundle alone runs to 5541 pages, this was augmented by an additional liability bundle of 49 pages. There was a witness bundle of 551 pages. There was a mitigation bundle of 1430 pages and an additional mitigation bundle of 2728 pages. There was a correspondence bundle of 525 pages. During the 20 days we heard from 11 witnesses. We were unable, in the time available, to deal with the case in total. It was therefore necessary to set aside further time in January for submissions and for deliberations and the production of this Judgment.[5]The Tribunal is bound to say that it considers that the amount of documentation, evidence and a plethora of correspondence between the parties representatives during the course of these proceedings, which have been intrain for some three years, calls into question whether any due consideration has been given by the parties and their representatives to the overriding objective set out in the Employment Tribunal Rules of Procedure. Employment Tribunals were originally initiated to enable individuals to litigate on their own behalf in informal surroundings. Whilst that noble ambition has long been surpassed by the ever burgeoning complexity of employment law, and the involvement of specialist employment lawyers, it is still the case that Tribunals and parties involved should have mind to the overriding objective, which is as follows. The overriding objective 1.1(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.(2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.[6]We feel that we must comment that in this case, sight appears to have been lost of the overriding objective. This case has developed a life of its own akin to a complex High Court piece of litigation. However, the issues involved are no more complex than many a Tribunal case that comes before the Employment Tribunal. The parties and their Representatives have a responsibility to manage cases in a manner which is proportionate to the nature of the claim and the issues involved. The Tribunal, in this case, seriously questions whether this has been achieved in this case. The sheer volume of paperwork before this Tribunal and the huge plethora of correspondence between the Representatives suggests otherwise. The Claimant’s disability[7]This is described by the Claimant as being “long covid”/”post viral fatigue (PVS)”/ “Chronic Fatigue Syndrome (CFS)”/ “ME (Myalgic Encephalomyelitis)”. The Respondents concede that at all material times, for the purposes of this claim from 16 March 2021 onwards, the Claimant was disabled by reason of these disabilities and that at least, in this case, is not a matter of dispute.[8]The basic background facts which have led to this extremely lengthy piece of litigation are that the Claimant worked as a full time teacher/SENCO (“Special Education Needs Coordinator”) at the First Respondent, in a one form entry nursery. The Claimant became ill on 16 November 2020 and was unfit for any work until September 2021 when she began a phased return. She was then dismissed on 16 December 2021. She was dismissed summarily without notice. The Respondents rely on conduct/some other substantial reason and argue that the dismissal was fair. Prior to the commencement of this lengthy hearing, the parties were able to agree a definitive list of issues to be determined by this Tribunal. These appear at page 550 of the bundle. They run through to page 562. Essentially, the acts of discrimination relied upon in respect of the Claimant’s claims in direct disability discrimination under section 13, discrimination arising from disability under section 15, harassment under section 26, are all set out in 31 acts complained of. These run from 2.1 to 2.31.[9]The claim for reasonable adjustments relies on those issues set out between paragraphs 14 and 24 of the list of issues. The claim in victimisation relies on those issues set out between paragraphs 25 and 30 and the acts complained of as being detriments arising out of the protected acts are some, but not all, of the acts set out from 2.1 to 2.31.[10]The dismissal took place on 16 December 2021 and the unfair and wrongful dismissal claims flow from that dismissal.[11]The Claimant’s claims in disability discrimination all arise out of alleged treatment she says she suffered between March and December 2021. Much of the treatment that she relies upon is based on the Claimant’s assertion that the Head Teacher, Michelle Cohen, conducted a campaign against the Claimant arising out of a desire to rid the Claimant from the First Respondent’s employment.[12]The Claimant relies on what she says was a strategy of discriminatory behaviour, perpetrated mainly by Michelle Cohen throughout this period of time.[13]The Respondents deny any such strategy or discriminatory conduct and say that the Claimant’s arguments amount to a conspiracy theory that Michelle Cohen and others, were out to get her and to rid the school of her. The Respondents say, nothing could be further from the truth and that Michelle Cohen was simply a head teacher trying to do her best to deal with a difficult situation within a tiny school with limited resources and that ultimately the decision to dismiss, taken by the Governors in December, was reached when the Governors had determined that the Claimant had so undermined the relationship between her and the head teacher, that it could not be repaired.[14]We heard evidence from the Claimant over several days and from Miss Cohen over several days. These were the principal witnesses. We also heard evidence from Francis Derby (nee Smith), Deputy Head Teacher and Paul Nutton, Chair of the Governors, which was of great significance too. In all, we heard from 11 witnesses. General comments on the principal evidence we heard.[15]Much of the Claimant’s claims, if not all in discrimination, stand or fall on the evidence we have heard. The Claimant’s principal claims are based on the fact that she said there was a campaign initiated by Miss Cohen from the very early part of her sickness absence to remove her. It is therefore important that we make general comments on the evidence we heard before we deal specifically with the allegations.[16]We must say that we take into account the fact that the Claimant is a disabled person and has, throughout the period of her absence prior to her dismissal, suffered from the disability set out above and her being cross examined for a lengthy period of time is a difficult and exacting situation for anyone to be put under. However, we were not impressed with the evidence of the Claimant throughout. She was, on many occasions, taken to documents in the bundle referencing exchanges between her and Miss Cohen which belied the suggestion that Miss Cohen was pursuing a concerted campaign to oust the Claimant. Even when presented with incontrovertible documentary evidence which was directly contrary to the Claimant’s conspiracy narrative, the Claimant refused in the face of that incontrovertible evidence, to accept that certain exchanges were affable and that Miss Cohen had simply been trying to do her best to communicate and consult with the Claimant during the course of her illness.[17]The Claimant was also taken to the letter before action dated 12 July, presumably written on the Claimant’s instructions, which contained a number of falsehoods which were pointed out by Miss Moss in crossexamination. Even when confronted with these obvious falsehoods, the Claimant refused to accept that they were so false.[18]On every occasion when the Claimant was presented with such incontrovertible evidence to the contrary of her assertions, she simply said “I don’t agree”.[19]Throughout much of her cross-examination the Claimant was therefore deliberately evasive and unhelpful.[20]The Tribunal therefore considers that it must treat the Claimant’s evidence with considerable caution. External influences upon the Claimant[21]Throughout the early part of the Claimant’s sickness absence in 2021, the exchanges between Miss Cohen and the Claimant were cordial and convivial. We entirely accept the submissions put forward by Miss Moss that the contemporaneous evidence which was shared at the time in messages and emails in the early part of this process, entirely accords with Miss Cohen’s account of events rather than the Claimant. The Tribunal sees nothing in the documentary evidence produced to it in those exchanges which supports the Claimant’s case that there was a discriminatory quest being pursued by Miss Cohen to dismiss the Claimant.[22]Miss Cohen was also extensively cross-examined and we found her evidence to be cogent, clear and concise. It is certainly true that when the Claimant became far more aggressive in correspondence and engaged representatives in June and July, Miss Cohen became much more wary and was understandably concerned and nervous about the aggressive nature of correspondence she then started to receive.[23]We regard it as highly unfortunate and unhelpful to the Claimant that there were clearly considerable outside influences brought to bear upon her and her interpretation of the actions of Miss Cohen. In cross-examination the Claimant accepted that in or about the end of April 2021 the Claimant permitted her brother-in-law, Nigel Dunn, to become involved in assisting her. There was a significant change in the Claimant’s attitude after that and the Tribunal considers that it is unfortunate that the Claimant’s position appears to have changed at or about this time from what was relatively affable and civilised communications with Miss Cohen to extremely aggressive and accusatory language. The involvement of Mr Dunn and subsequently the Claimant’s legal team clearly appeared to mark a significant change in the way in which the Claimant approached Miss Cohen thereafter.[24]In cross-examination the Claimant could not really explain why she was alleging that communications from Miss Cohen were quite different from the narrative the Claimant was pursuing in support of her conspiracy theory. She simply said that it was the tone of the communication rather than the actual words which had offended her. We also were not impressed with the way in which the Claimant in cross-examination dealt with the allegations put to her, that she had created a false narrative with respect to the success or otherwise of subsequent applications she had pursued for teaching roles, post termination of her employment. Once again, we regard her evidence in this respect as evidence which we must treat with considerable caution.[25]These are general comments and we will deal more specifically with the evidence in respect of each allegation as this judgment progresses but we must stress that where there is evidence in dispute, and there is much of it here, we prefer the evidence of Miss Cohen to that of the Claimant.
Findings of fact
[26]Many of the acts relied upon as acts of discrimination in the Claimant’s claims in direct discrimination, harassment and discrimination arising from disability, relate to contact made by Miss Cohen with the Claimant whilst the Claimant was off work sick. Sadly the Claimant became unwell and was off sick between November 2020 and September 2021.[27]The first of the acts complained of relate to contact made in March and April.[28]The Claimant was taken to these in cross-examination and we had various documentary evidence before us following those contacts.[29]The contact was against the background of Miss Cohen being concerned about the viability of the nursery due to the projected intake of pupils for September 2021 being very low.[30]Miss Cohen sought advice from Hertfordshire County Council and one option was to seek an increase in the nursery’s provision to 30 hours of child care per week. It was felt that this may well improve take up in the numbers. It was also felt by Hertfordshire County Council that it would be better for children to have one nursery teacher rather than a job share.[31]These changes would have signalled an amendment to the Claimant’s then role if implemented. The initial approaches were by way of consultation with the Claimant and an engagement with the Claimant in discussions about any potential changes, most particularly seeking the Claimant’s position on whether she had a preference for either a full time nursery role or a part time SENCO role and, if so, which one. We accept Miss Cohen and the Respondent’s position on the nature of these discussions rather than the tenor the Claimant’s seeks to put on them as part of her claim. We have seen various documentary evidence, including emails and notes, some made by the Claimant, and it is clear that Miss Cohen is simply seeking to consult with the Claimant. The Claimant, in her evidence and in her case, argues that these approaches were an attempt to pressurise her into a change of role. We do not accept that this is the case. On the basis of the evidence that we have heard and seen, it is the Tribunal’s judgment that these approaches were entirely reasonable and appropriate despite the fact that the Claimant was off sick. We accept Miss Moss’s submissions that the Claimant would have pursued an even more vigorous complaint against the Respondents had she not been consulted with and Miss Cohen had simply proceeded to implement changes in her absence. We accept that in cross-examination the Claimant admitted that she did not indicate to Miss Cohen that she would prefer to do both SENCO and the nursery teacher work or, that she wanted to seek to teach a different year group altogether. She did not indicate a preference for either full time nursery teaching or part time SENCO work and was given more time to think about it.[32]There were two conversations between Miss Cohen and the Claimant on 11 and 25 March, this was followed up by an email by Miss Cohen and we have before us the Claimant’s notes. The Claimant accepted that her note of the conversation of 25 March had been mis-described as taking place on 24th. We do not find that these conversations amounted to pressure on the Claimant nor do we find that in any of the contact in April amounted to pressure. We do not accept the Claimant’s evidence that Miss Cohen adopted an aggressive tone in any of those conversations. It is, perhaps, telling that the Claimant did not raise any issues about those conversations until much later. We consider that the email dated 25 March from Miss Cohen to the Claimant, which was before us at page 841, properly reflects the nature of the conversation between them which was convivial, business like and by way of a consultative process. The wording of this email, in the view of the Tribunal, properly reflects the nature of those discussions other than a slant now put on those discussions by the Claimant in pursuing her case.[33]It was never proposed that the Claimant’s hours be changed. All that was being sought by Miss Cohen, perfectly properly in the Tribunal’s view, was an indication of her preference as set out above. It was a consultation prior to any decision being taken. We accept Miss Moss’s submissions that the only alternative would be to have not consulted with the Claimant. That would, in the Tribunal’s view, have been unsatisfactory. The Ill Health Capability Hearing ( IHCH)[34]This is covered at 2.3 and 2.4 of the acts relied upon in the discrimination claim in the list of issues.[35]The Claimant had been off sick for six months and had submitted a sick note on 30 March, certifying further absence until 7 June 2021. Miss Cohen was advised by Hertfordshire County Council to call a form of ill Health Capability Hearing. She did so in accordance with the Health and Attendance Policy which was before us. We accept that Miss Cohen’s motives for contacting the Claimant prior to this meeting taking place on 13 May 2021, were entirely genuine in that she wished to give the Claimant advanced warning of what, on its face, was a formal process. She emailed the Claimant on 20 April. The contents of that email are entirely ad idem with Miss Cohen’s evidence to this Tribunal and do not illustrate the tone or aggressiveness to which the Claimant avers. The Claimant’s own note of that conversation which was before us is of a less convivial conversation and does include words which state, “prepare yourself for dismissal”.[36]There is considerable dispute about the way in which the possibility of dismissal was communicated to the Claimant by Miss Cohen. The invitation to the formal meeting was sent after a further phone call on 29 April, so that the Claimant could expect the letter. Where there is dispute here we accept the evidence of Miss Cohen. We accept that Miss Cohen was attempting to do things “by the book” on advice she was receiving. In pursuing the ill Health Capability Procedure it was, as is usually the case, necessary to flag the possibility that one outcome of the IHCH might be the dismissal of the Claimant. This is a familiar warning and appears routinely in such procedures. We prefer the evidence of Miss Cohen that in discussions prior to the formal letter being sent, all she did was to read from the proforma letter which was before us, which reads, “You should be aware that a potential outcome of this hearing may be your dismissal from employment on the grounds of incapability to discharge the duties and responsibilities of your post”.[37]Irrespective of the note before us, we do not find the Claimant’s evidence as to the contents of these conversations to be reliable. The Claimant initially said that the invitation letter contained, “prepare yourself for dismissal”. In fact, it did not. Moreover, as pointed out in submissions, the Claimant does not refer to being told “prepare for dismissal” in any of her communications with others very shortly after those conversations with Miss Cohen. This is the case even after that particular phrase was included in an email sent by the Claimant’s brother-in-law. We found Miss Cohen to be unshakable in cross-examination on this point that she did not say “prepare yourself for dismissal”. We accept her evidence. We make a finding that she did not say that. We find that, on balance, the weight of evidence in front of us supports the narrative of Miss Cohen rather than that of the Claimant as to what took place in these conversations. We accept that matters took a sharp turn, as we have indicated above, at or about the time of the IHCH and the involvement of the Claimant’s brotherin-law. We do not consider that the Claimant was well served by Mr Dunn’s intervention for the reasons we have set out above.[38]Whilst the Tribunal has considerable sympathy for the Claimant and the illness from which she suffered, we do think that much of the narrative she has pursued as part of this claim appears to have been whipped up by those external to the Claimant which resulted in her taking a distorted view of the approaches and actions of Miss Cohen which, in the Tribunal’s view, are not borne out by the evidence.[39]Mr Dunn emailed the Claimant on 4 May setting out that he believed Miss Cohen was setting her up and that there was a possible track of constructive dismissal. In cross-examination the Claimant accepted that from late April, early May, she was no longer corresponding with the school herself without the support from her family and her advisors. The school was, in contrast, doing no such thing and was attempting to maintain a convivial relationship with the Claimant.[40]We do not accept the Claimant’s assertion that Miss Cohen and anyone else at the school was “gunning for her”. In fact, we consider that Miss Cohen and the school were in a very difficult position both in light of the concern about the long term viability of the nursery and the immediate difficulty with respect to the Claimant’s absence. Nothing in the evidence we heard from Miss Cohen would suggest that the Claimant’s narrative about Miss Cohen wishing to get rid of the Claimant is true.[41]The Claimant did ask whether she could be accompanied at the IHCH for emotional support by her sister. Miss Cohen, who we find, was doing everything she could to do things properly and “by the book” sought advice about this from the Council. Pursuant to that advice she refused the request. The Claimant was accompanied by a Trade Union Representative in accordance with the ill Health Capability Policy and this also accorded with the Claimant’s statutory rights. We accept Miss Moss’s assertions that as a matter of fact there was nothing in any of the OH reports or GP reports before the school that would have put them on notice that the Claimant would have been placed at a substantial disadvantage by allowing the Claimant only to be accompanied in accordance with statutory requirements. There is no evidence before us to suggest that the Claimant was not properly prepared, briefed and/or represented at the meeting. Nothing was raised at the time.[42]Both parties produced a statement of case for the IHCH and Miss Cohen was required to write a statement which set out the school’s perspective. This was before the Tribunal. We accept that it was a statement prepared and slanted towards the school’s perspective, as one might expect. There is nothing untoward in the way which this was prepared by Miss Cohen and does not fit the narrative that is being pursued by the Claimant that this is part of the evidence that there was a concerted campaign by Miss Cohen to oust her. We do not accept that.[43]The Claimant, with the assistance of her advisors, including her family, submitted a highly critical statement at that IHCH.[44]Mentioned was a criticism for not suggesting reasonable adjustments. This was later repeated in the aggressive letter before action sent to Miss Cohen by the Claimant’s solicitor. Any suggestion would have been wholly wrong in light of the fact that there was no medical evidence at that time suggesting that the Claimant could, at any stage, return to work. How could the school possibly consider reasonable adjustments in those circumstances. This was accepted by the Claimant in cross-examination. We accept Miss Moss’s submissions that had the school or Miss Cohen attempted to put in place reasonable adjustments at that time for the Claimant’s return to work, they would have been heavily criticised by the Claimant for attempting to force the Claimant back to work when she was clearly not fit and there was no suggestion as to when she would be. This is something of a barometer for the way in which matters were conducted on the Claimant’s behalf and illustrates the skewed nature of the Claimant’s approach to these proceedings which has led to the unproven conspiracy theory we refer to above.[45]In the event the IHCH resulted in not even a warning being issued to the Claimant. The criticisms set out in the statement were, in the Tribunal’s view, unfounded. Interestingly, there were no criticisms ventured by the Claimant of any of her interactions with Miss Cohen until this meeting. The IHCH outcome letter made it clear that there would need to be further consultation about the 30 hours nursery care from September.[46]In fact, that 30 hour provision discussion continued after the IHCH meeting. Contact in this respect was in accordance with the consultation that had been in progress and the Tribunal sees nothing untoward or sinister in these approaches. The suggestion that this is part of Miss Cohen’s attempt to manufacture a situation where the Claimant had to leave is not accepted. As Miss Moss has pointed out, had Miss Cohen really been intending to force the Claimant to leave, she would simply have put the 30 hour provision in place with no consultation.[47]It is noted that Mr Dunn became significantly involved after that meeting and sent a number of extremely aggressive emails on behalf of the Claimant. We regard these as extremely unhelpful. These only serve to inflame the Claimant and persuade her that Miss Cohen was indeed pursuing the conspiracy which is now being alleged. The allegations about the motives of Miss Cohen in these emails from Mr Dunn to the Claimant, have no basis in fact. We accept that these emails unjustifiably filled the Claimant’s head with the conspiracy theory that Miss Cohen wanted to dismiss her.[48]Perhaps not surprisingly, thereafter, the Claimant became more reluctant to engage with Miss Cohen.[49]We accept and agree that nothing during the process of consultation with the Claimant during her sickness was an attempt to amend or change her contractual terms. It was simply a matter of consultation on what allocation of the Claimant’s time would be taken up with teaching and with SENCO. The without prejudice approach by the Respondent.[50]On 26 May, Siba Carrick, an HR Advisor for Hertfordshire Council, emailed the Claimant’s Union Advisor and asked whether the Claimant was open to having without prejudice conversation. The email went on to say that if not, the school would continue to follow the absence procedures and look at ways to support the Claimant’s return.[51]Much was made of this by the Claimant in these proceedings as being supporting evidence of the “conspiracy” theory. The Tribunal does not accept that interpretation. It is often the case, and is usually desirable, that in circumstances such as this the possibility of some agreed settlement is ventilated. This was nothing more than that. It was seized upon by Mr Dunn as part of the “quest to dismiss you” but the Tribunal considers it to be nothing of the sort. Mr Ryan replied, indicating that the Claimant might well be prepared and interested to hear what Miss Cohen might have to say in response to the without prejudice suggestion. In any event, any such without prejudice discussions did not proceed. The Tribunal considers it entirely reasonable in the circumstances for such an approach to have been made.[52]After this time communications became more difficult for Miss Cohen as the Claimant had, by then, taken the view that Miss Cohen was engaged in a determined process to undermine her and to dismiss her. The Tribunal does not consider that this belief is borne out by the evidence before it.[53]There was no suggestion in any of the communications that the Claimant was to be made redundant or to be demoted or that her contractual terms would be changed. There was, however, a necessary review of the SENCO provision in light of the fact that since it had been covered during the Claimant’s absence it had been covered on the basis of that which was required being one SENCO afternoon per week. Once again, it was merely a discussion and review and ultimately, when the Claimant refused to agree, Miss Cohen entirely relented. We consider this to be part of the sensible process of discussion and consultation and nothing more. The Claimant insisted on seeing a business case and budget models to support the suggestion that she should only do one SENCO afternoon per week. However, we accept Miss Cohen’s explanation in evidence that there was no such detailed business case produced and that it was simply a small school attempting to adapt to changing circumstances and engaging with the Claimant during the course of that adaptation as, indeed, was proper and appropriate. Shortly thereafter, on 12 July, the Claimant caused her legal Representatives to write an extremely aggressive letter before action. This was sent to those representing the school and was forwarded to Ms Cohen. It became clear, during the course of this hearing, and during the course of cross examination evidence, that significant proportions of this letter misrepresented the facts.[54]One particular area is that the letter asserted that the school had failed to consider making reasonable adjustments yet it was plain that this was a nonsense. It was accepted by the Claimant during cross-examination that no such reasonable adjustments could possibly be considered at the time in light of the fact that all medical evidence indicated that the Claimant could not return to work and there is no suggestion as to when she might be able to return and in what circumstances. These allegations of a failure to make reasonable adjustments were raised in the Claimant’s first claim and then subsequently withdrawn.[55]We regard this letter before action as being unfortunate. It is understood, and accepted, of course, that instructed legal representatives are entitled to put their client’s case vigorously and, of course it is not suggested that the assertions and misrepresentations made in that letter were done on any other basis than on the Claimant’s instructions but it is unfortunate that this further compounded the difficulty in the relationship between the Claimant and Miss Cohen who quite naturally became very concerned at the level and aggressiveness of the allegations put against her. We consider that Miss Cohen had done nothing other than to try and manage the situation with the Claimant to the best of her ability, given the size and resources available to her. It must have come as a considerable shock to her to be accused of Machiavellian plotting against the Claimant when on the evidence before this Tribunal, this was clearly not the case.[56]There then proceeded a period of negotiation against the background of the significant allegations that had been made about Miss Cohen. We accept that these would have been extremely difficult for Miss Cohen in the circumstances. Nevertheless, that period of negotiation took place. Interestingly, the school’s first proposal was for a phased return to work over 9 weeks but the Claimant proposed a shorter phased return of 6 weeks.[57]This was done on the basis of medical reports which were amended prior to being produced by the Claimant. This means that the medical reports which were before the school were, in terms, drafted with the approval and involvement of the Claimant. These were clearly followed during the course of the negotiations for a phased return.[58]The process of negotiating a return to work for the Claimant continued. The Tribunal accepts that this was against a difficult background in light of the fact that various allegations had been ranged against Miss Cohen in the correspondence from both Mr Dunn and in the letter before action. We accept Miss Cohen felt particularly pressurised and unsupported at this time.[59]As part of that negotiation, the Claimant sent a detailed letter on 7 September which was widely distributed to both the Board of Governors, the Senior Leadership Team and Miss Cohen. We accept the Respondent’s argument that it was unnecessary to distribute this so widely, particularly as the principal thrust of this document was to set out a suggestion that on her return, the Claimant have no further contact with Miss Cohen and only dealt with the deputy head, Francis Derby. We do accept and regard that this was a personal attempt and attack upon Miss Cohen and then attempt to undermine her.[60]We accept the general assertion that by this time, either through opinions formed by herself or by being persuaded by others, the Claimant took the view that Miss Cohen could do no right.[61]Miss Cohen submitted a grievance of her own as a result of this and this was further evidence that Miss Cohen was at the end of her tether, being faced with a series of allegations which had arisen when all she had tried to do was her best. She was, however, persuaded by the Chairman of Governors, Mr Nutton, to withdraw this grievance. We do not accept that she agreed to do so on the basis of assurances from Mr Nutton that the Governors would find a way to remove the Claimant. We do not have any evidence before us to support this suggestion. In fact, Mr Nutton said he regretted persuading Miss Cohen to withdraw her grievance and on reflection, in light of events subsequently, it would have been better had that grievance been dealt with.[62]The Claimant asked to visit the nursery before she returned under the return to work plan and here, once again, the Claimant saw fit to see conspiracy in what the Tribunal regards as a perfectly innocuous set of circumstances at the time of that visit. The Claimant complains about signing into the visitors book rather than being asked to sign the staff book and that she was escorted to the nursery building by Miss Cohen and another member of staff. We see nothing untoward in the way in which the Claimant was treated and in respect of this incident we prefer the evidence of Miss Cohen. Nevertheless, even on her own evidence it is hard to see how the Claimant could have taken offence at what happened. We accept the Respondent’s assertion that had the Claimant not been greeted at reception, she would have had cause for complaint and had it been insisted that she sign into the book in the staff room she would no doubt have complained that she hd been required to walk the extra distance to it. We accept that this is just another example of Miss Cohen not being able to do anything right in the Claimant’s eyes.[63]With reference to the Claimant’s request to avoid any contact with Miss Cohen, we regard this as unnecessary and unreasonable. There is plenty of evidence to support the view that this would have been unworkable in such a small school. We were impressed by the evidence of Francis Smith in this respect. We think it highly unlikely that the school and Miss Cohen could have discharged their job and legal obligations properly without interaction with the Claimant upon her return. It is the Tribunal’s view that the school did all that they could to accommodate the Claimant in her return to work and in the return to work plan. Miss Cohen, by this time, was feeling the strain of the plethora of allegations ranged against her and was happy to do anything to accommodate the Claimant.[64]There were various meetings which took place prior to the Claimant’s return to work which happened on 24 September 2021. With respect to specific allegations in the list of issues, we will deal with those in due course.[65]The Claimant argues that her return to work was not properly communicated to other staff. The Tribunal does not consider that this is supported by the evidence we heard. In fact, we accept the Respondent’s position that by the time the Claimant arrived on 24 September, she was too late to hear the announcement about her return made to staff in the early briefing which started at about 8.00 pm. Here there was a dispute in the evidence between the Claimant and Francis Smith. We accept the evidence of Miss Smith where she told us that she was actually at work at 07.05 am on Friday 24th and heard the briefing herself which included information about the Claimant’s return. Once again, the Tribunal had cause to treat the Claimant’s evidence with some caution. We entirely accept that the school gave appropriate and necessary information about the Claimant’s return to work to both staff and parents.[66]The Respondents arranged weekly welfare meetings which included the Claimant, Miss Cohen and Miss Smith, to review the Claimant’s progress with a view to building in some flexibility in the return to work plan. We accept the evidence of both Miss Cohen and Miss Smith that Miss Cohen behaved entirely professionally and appropriately during those meetings. They were there to assist the Claimant. We do not accept the Claimant’s assertion that these were an opportunity for Miss Cohen to critique the Claimant’s performance and be negative towards her. These meetings were part of the agreed return to work process and happened on 30 September, 5 October, 8 October, 15 October and 21 October. Where there is dispute about the conduct of these meetings, the content and what took place, we prefer the evidence of Miss Cohen and Miss Smith.[67]On October 6 there was then an incident with a child following his parent out of the nursery when the Claimant was half supporting and half teaching. The incident was reported and MC then spoke to the Claimant on 8 October and asked her what happened. We entirely accept Miss Cohen’s evidence that she had an obligation to investigate to ensure that the safety of children within the nursery, was being maintained. No disciplinary process was initiated and we regard Miss Cohen’s handling of this as entirely appropriate. Had she have ignored the concerns of other members of staff that would have been wrong. We accept the Respondent’s position and their assertion that if there had been any truth in the Claimant’s theory that Miss Cohen was gunning for her then this would have been a perfect opportunity for her to initiate disciplinary proceedings. She didn’t.[68]A number of concerns were raised about the Claimant during her return to work in October 2021, not just to Miss Cohen but to others. We accept Miss Moss’ submission so there is no evidence substantiating the allegation that Miss Cohen was attempting to persuade colleagues to criticise the Claimant. We do not accept that.[69]The failure to conduct any kind of Performance Management Review is alighted upon by the Claimant as being evidence that there was no point as she was shortly to be dismissed.[70]We accept that this is just another indication of the conspiracy mindset which the Claimant has developed which had no basis in fact.[71]The Claimant then raised a grievance on 27 October in the half term holiday against Miss Cohen. This was copied to Fran Smith, Miss Cohen’s deputy. There appears to be no good reason why Miss Smith was included.[72]In the grievance the Claimant requested that Miss Cohen no longer be involved in managing her and suggested that Miss Smith could fulfil that role. She also asked that Miss Cohen should not conduct the weekly welfare meeting or be involved in them. The grievance is couched in very stark and somewhat aggressive terms. It makes serious allegations against Miss Cohen and clearly show the Claimant’s mindset at that time which was that she felt that whatever happened, Miss Cohen “had it in for her". She alleges that Miss Cohen displayed a visceral dislike of the Claimant and her disabilities. We must say that we have seen no evidence in the testimony that we have heard to support such an assertion. In fact, quite the opposite.[73]There are inconsistencies such as the Claimant complaining that she was forced to go on a forest trip despite indicating prior to that forest trip, that she was happy to go. It was clear that, in the Claimant’s eyes, Miss Cohen could do no right.[74]We accept the Respondent’s suggestion that in fact Miss Cohen was not, on the evidence we have seen, in any way bullying the Claimant. If anything, the bullying was coming from the Claimant to Miss Cohen exacerbated by the support the Claimant had behind the scenes. As a result of the content of that grievance, flagging up the Claimant’s position that she had suffered severe mental health issues, the Chairman of the Governers, Mr Nutton, chose to medically suspend the Claimant pending an OH report. The Tribunal considers this to have been an appropriate course of action and we do not accept the Claimant’s position that Miss Cohen was in any way involved in this decision.[75]The school properly engaged an entirely independent investigator with no links to the school or Miss Cohen or the Governors. The school was prepared to do this because it wanted to follow a correct course of action. It should be remembered that they spent over £11,000.00 in engaging an independent investigator. We heard evidence from Miss Dorfman who inexplicably is joined as a party to these proceedings. We were impressed by her evidence. We do not accept the assertion that Miss Dorfman who conducted the grievance was in any way influenced by anyone at the school or on the Board of Governors.[76]Miss Dorfman produced a comprehensive and detailed 33 page report after having interviewed 10 witnesses. None of the Claimant’s grievances were upheld. We accept the Respondent’s assertion that that is unsurprising given the fact that no witness supported the Claimant’s allegations.[77]The Claimant chose to appeal and accused Miss Dorfman of being involved in a conspiracy with those at the school in respect of which we find no evidence whatsoever. We were impressed with Miss Dorfman and considered that her involvement was entirely independent. Tellingly in that report, Miss Dorfman actually suggested that the bullying was coming from the Claimant towards Miss Cohen and she described this as upwards bullying.[78]This appears under 5.2 in the heading Recommendations in Miss Dorfman’s report.[79]She makes a number of recommendations including a more accurate recording of meetings and telephone conversations and the very end recommendations under 5.2.5, suggests the Governor should consider whether the grievance raised by the Claimant constituted what ACAS defines as “upward bullying”. She quotes from the school’s Bullying and Harassment Policy and states: “Evidence of false or malicious complaints, however, may result in formal disciplinary action being taken against the employee(s) concerned”.[80]It was pursuant to the report of Miss Dorfman that the Claimant was dismissed. The letter of dismissal dated 16 December, in its very first paragraph refers to the upwards bullying mentioned by Miss Dorfman in her report.[81]The Claimant appealed against the grievance and, as the evidence before us of Paul Nutton, the Chairman of the Governors indicates, this was the last straw in a sense. He said it wasn’t the fact of the appeal but it was essentially the fact that Mr Nutton considered that there was clearly going to be a never ending catalogue of unfounded and groundless allegations, even despite the fact that the grievance had been properly dealt with by an independent Assessor and a proper and reasoned grievance outcome sent.[82]Mr Nutton’s evidence was that he had really come to the end of the line with the Claimant. She had raised allegations against Miss Dorfman which were wholly unfounded and had even tried to suggest that the Respondent’s solicitors were in some way, behaving improperly.[83]Mr Nutton came to the conclusion that it was necessary to formulate a panel of three Governors to hear him present the management case for the Claimant’s dismissal. That panel were John Whitby, Marika Dixon and Kirsty Martin-Dale. Francis Smith also attended the hearing to take minutes. The panel had Miss Dorfman’s report.[84]At that meeting, which took place on 15 December 2021, Mr Nutton presented a case for dismissing the Claimant. The other three panel members asked a series of questions pursuant to that presentation and ultimately a decision was taken to summarily dismiss the Claimant.[85]The Tribunal does not in any way consider that Miss Cohen was involved in this process, either directly or covertly. It was a decision of Mr Nutton to call the panel and a decision of the panel to dismiss pursuant to the presentation of Mr Nutton. In his evidence Mr Nutton accepts that this process was highly unusual in that it was entirely contrary to the schools disciplinary process and the ACAS Code of Practice on disciplinary and grievance procedures. It was essentially a meeting convened in the absence of the Claimant. The Claimant wasn’t invited, the Claimant wasn’t given an opportunity of putting her side of the story. There was no process undertaken whatsoever prior to the decision being taken to summarily dismiss.[86]This was clearly contrary to any proper practice and is admitted by Mr Nutton to have been so.[87]However, as we have indicated during the course of this Judgment, we do consider that a Claimant’s behaviour and that of those assisting her, had created a situation where a plethora of false and unfounded allegations had been ventilated against Miss Cohen and others but principally Miss Cohen, and had created a very difficult situation for the school. The school had done its best to assist the Claimant throughout her sickness and in her return to work but nothing that the school did was going to deflect the Claimant from her belief in the various conspiracy theories that she had held and continued to hold and the final straw was an independent, entirely reasoned grievance outcome which clearly the Claimant was never going to accept under any circumstances.[88]The Claimant did not appeal. For the purposes of this Judgment, the Tribunal proposes to go no further in considering when and if the Claimant might have left the school’s employment had she not been dismissed by the Governing Panel, pursuant to the meeting of 15 December. A letter of dismissal was sent to the Claimant the next day on 16 December 2021.
The Law
[89]The Tribunal is most grateful to Counsel for both parties in setting out in great detail the law that covers the aspects which we have to consider in respect of the Claimant’s various claims set out in the list of issues. We have repeated the law as set out in the Respondent’s submissions as was made plain, that there was no dispute about the law save for in one minor respect which we have picked up. We have also included aspects of the law from Mr Nasiff’s submissions where appropriate:- Direct discrimination: 1. Direct disability discrimination occurs where, because of disability, A treats B less favourably than A treats or would treat others (section 13(1), EqA 2010). 2. An employee claiming direct discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs (section 23, EqA 2010). LH relies on a hypothetical comparator. The comparison must be with someone without Long Covid but otherwise in materially the same circumstances. 3. For direct discrimination to occur, less favourable treatment must be "because of" disability. The House of Lords recognised in Nagarajan v London Regional Transport and others [1999] IRLR 572 (HL) that in most cases the respondent's subjective thought processes are in fact a central issue. The correct test is therefore "what was A's conscious or subconscious reason for treating B less favourably?" 4. In relation to the inferences which the Tribunal can draw under s.136 EqA, when considering the burden of proof in discrimination cases, there is the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 (as approved by the Court of Appeal in Igen Ltd and others v Wong and other cases [2005] IRLR 258, and by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870). Discrimination arising from disability 5. Section 15 of the EqA states: (1)A person(a) (A) discriminates against a disabled person(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 6. In Pnaiser v NHS England and anor 2016 IRLR 170, EAT, Mrs Justice Simler, summarised a number of key points that govern the correct approach to a S.15 claim. The tribunal must first identify whether there was unfavourable treatment and by whom. It must then determine what caused the impugned treatment, or what was the reason for it, focusing on the conscious or unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the impugned treatment and, as in a direct discrimination case, the ‘something’ need not be the main or sole reason for the unfavourable treatment but must have at least a significant (or more than trivial) influence so as to amount to an effective reason for or cause of it. The tribunal will then have to determine whether the reason or cause is ‘something arising in consequence of’ the claimant’s disability. Liability can only be established if the alleged discriminator knew of the disability, but there is no requirement that the alleged discriminator knew that the ‘something’ leading to the unfavourable treatment was a consequence of the disability. 7. Once a chain of causation between the disability and the unfavourable treatment has been established, the tribunal can move to whether the treatment was objectively justified. Did the treatment complained of achieve a legitimate aim? If so, was it a proportionate means of doing so? This involves weighing the needs of the employer against the discriminatory impact on the employee. 8. The case of BAE Systems (Operations) Ltd v McDowell UKEAT/0318/16 gives a helpful summary of the case law as follows: “In MacCulloch v Imperial Chemical Industries plc [2008] ICR 1334, the EAT (Elias P, as he then was, presiding) summarised the legal principles on justification, as follows: “10. … (1) The burden of proof is on the respondent to establish justification: see British Airways plc v Starmer [2005] IRLR 862, para 31. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (Case 170/84) [1987] ICR 110, in the context of indirect sex discrimination. The Court of Justice, at para 36, said that the court or Tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end”. This involves the application of the proportionality principle … It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board [1987] ICR 129, 142-143, per Lord Keith of Kinkel. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardy & Hansons plc v Lax [2005] ICR 1565, per Pill LJ, at paras 19-34, Thomas LJ, at paras 54-55 and Gage LJ, at para 60. (4) It is for the employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardy & Hansons plc v Lax [2005] IRLR 726, CA.” 9. An employer can rely on a justification defence not thought of at the time of the discrimination (see Cadman v Health & Safety Executive [2004] IRLR 971). Harassment 10. Section 26 EqA relevantly states: (1)A person (A) harasses another (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B…. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. Failure to make reasonable adjustments 11. Section 20 EqA relevantly states: (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 asa. A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice (“PCP”) 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. 12. In order for a duty to make reasonable adjustments to arise, the employer must know or could reasonably be expected to know the employee is disabled AND that the PCP would be likely to place that employee at the substantial disadvantage — para 20(1)(b), Sch 8 EqA, and Wilcox v Birmingham CAB Services Ltd EAT 0293/10. 13. Regarding whether a PCP places a claimant at a substantial disadvantage, the EAT in Thompson v Vale of Glamorgan Council EAT 0065/20 gave some useful guidance by expressing the requirement in the following terms: ‘The Tribunal should identify the nature and extent of the “substantial disadvantage” caused by a PCP before considering whether any proposed step was a reasonable one to have to take… There must obviously be some causative nexus between disabilities relied on and the “substantial disadvantage”; the tribunal should look at the “overall picture” when considering the effects of any disabilities.’ 14. More recently, in Leicester City Council v Gibbin [2024] EAT 138, the EAT has observed that there must be evidence to support the proposition that the PCP put the claimant at a substantial disadvantage compared to non-disabled people. In that case the EAT found: “There is no evidence for the proposition that the Claimant's depression would be exacerbated by the disciplinary proceedings... That is a matter which required evidence; it is not something that is self-evident nor something of which the tribunal could take judicial notice.” 15. According to Mr Justice Elias, as he then was, as President, in Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT, there is no separate and distinct duty on an employer to consult with a disabled worker about adjustments to be made. The only question is, objectively, whether the employer has complied with its obligation to make reasonable adjustments. If the employer does what is required of it, then the fact that it failed to consult about the duty or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance, but that is enough. Conversely, if the employer fails to do what is reasonably required, it avails the employer nothing that it has consulted the employee. If there were a preliminary obligation to consult, it would have been spelt out in the legislation. Victimisation 16. Section 27 EqA states: (1)A person (A) victimises another person (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (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. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. 17. According to HHJ Eady QC in Saad v Southampton University Hospitals NHS Trust [2019] ICR 311, EAT, the primary question in determining whether an allegation has been made in bad faith under s.27(3) is whether they have acted honestly in making the allegation. The falsity of the allegation does not mean the employee acted in bad faith but may be a relevant consideration in determining that question: the more obviously false the allegation, the more a tribunal might be inclined to find it was made without honest belief. That said, the EAT did not rule out that an employee’s motivation for making the allegation in issue might be relevant to the tribunal’s determination of bad faith under S.27(3). For example, the tribunal might conclude that the employee dishonestly made a false allegation because he or she wanted to achieve some other result, or that the employee was wilfully reckless as to whether the allegation was true (and thus had no personal belief in its content) because of some collateral purpose in making it. Motivation can be part of the relevant context in which the tribunal assesses bad faith, but the primary focus remains on the question of the employee’s honesty. 18. Also see where, in HM Prison Service and ors v Ibimidun 2008 IRLR 940, EAT, the EAT confirmed that the victimisation provisions are designed to protect bona fide claims only. Accordingly, the EAT held that dismissing an employee for making numerous claims of race discrimination against his employer and his colleagues in order to harass the employer into offering him a settlement did not amount to victimisation. 19. In order for s.27 to be engaged, the protected act must be a ‘significant influence’ in the causation of the detriment, not “only a very small factor” - see Villalba v Merrill Lynch and Co Inc and ors 2007 ICR 469, EAT. The EAT confirmed that the tribunal had applied the correct test, saying: ‘we recognise that the concept of “significant” can have different shades of meaning, but we do not think that it could be said here that the tribunal thought that any relevant influence had to be important… If in relation to any particular decision a discriminatory influence is not a material influence or factor, then in our view it is trivial.’ 20. The Court of Appeal’s judgment in Page v Lord Chancellor and anor 2021 ICR 912,is relevant where a magistrate in a BBC broadcast indicated a complaint that he had been disciplined because of his religious views (including negative views of adoption by same-sex couples) and so it constituted a protected act for the purposes of S.27. The reason for his removal from office was not found to be the protected act but the fact that he chose to advertise the bias he would apply in the exercise of his judicial functions. The CA clarified that dismissal (or any other detrimental act) in response to a complaint of discrimination does not constitute victimisation if the reason for it is not the complaint as such but some feature of it which can properly be treated as separable. Unfair dismissal 21. Section 94 ERA provides that an employee has the right not to be unfairly dismissed and s.98 ERA assists tribunals to determine the question of whether a dismissal is fair or not fair. It relevantly states: (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2)A reason falls within this subsection if it—… (b)relates to the conduct of the employee,… (4)[Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)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 (b)shall be determined in accordance with equity and the substantial merits of the case. 22. In Iceland Frozen Foods Ltd v Jones 1983 ICR 17, EAT, Mr Justice Browne-Wilkinson summarised the law concisely and his summary was confirmed by the Court of Appeal in Foley v Post Office; HSBC Bank plc (formerly Midland Bank plc) v Madden 2000 ICR 1283: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows: (1)the starting point should always be the words of [S.98(4)] themselves; (2)in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair; (3)in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4)in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; (5)the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’ 23. Dismissal does not have to be the last resort before it can fall within the range of reasonable responses - Quadrant Catering Ltd v Smith EAT 0362/10. 24. The ‘range of reasonable responses’ test applies not only to the decision to dismiss but also to the procedure by which that decision is reached — J Sainsbury plc v Hitt 2003 ICR 111, CA. The investigation does not have to amount to what the tribunal would do, and will be fair if it is within the range of reasonable investigations an employer could undertake. 25. In Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, it was stated that if an employer could reasonably have concluded that a proper procedure would be ‘utterly useless’ or ‘futile’, it might well be acting reasonably in not putting one in place. This would be a matter for the tribunal to consider in the light of the circumstances known to the employer at the time of the dismissal. 26. In Hawkes v Ausin Group (UK) Ltd EAT 0070/18 the EAT held that there is a legitimate (but perhaps subtle) distinction to be drawn between finding a dismissal fair because a procedural flaw made no difference, which is not permissible following Polkey, and finding that the absence of a procedural step did not, in the circumstances, render the dismissal unfair. The claimant was a volunteer reservist for the Royal Marines who was permitted to take unpaid holiday to undertake 28 days’ training per year. He was dismissed without warning after he committed to a seven-week voluntary exercise abroad without first discussing it with his employer. Given that he had already committed to the exercise, the tribunal found that it was difficult to see what a warning or meeting before the decision to dismiss was made would have achieved in those circumstances and the lack of a meeting did not render the dismissal unfair in the circumstances. 27. The Court of Appeal made clear in Taylor v OCS Group Ltd 2006 ICR 1602, that in determining whether a dismissal is fair or unfair the employment tribunal is to approach their task broadly as an industrial jury – ‘the employment tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.’ Thus, in the Court’s view, where an employee is dismissed for serious misconduct, a tribunal might well decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as sufficient to dismiss the employee. 28. D’Silva v Manchester Metropolitan University and ors EAT 0328/16 concerned a claimant who had knowingly made false allegations of race discrimination, and given that this was regarded by the ET as very serious misconduct, the EAT confirmed that his dismissal was not rendered unfair by some procedural flaws in the dismissal process. Not every procedural defect will render a dismissal unfair. Wrongful dismissal 29. A dismissal without notice is wrongful — i.e. is a breach by the employer — unless the employer can show that summary dismissal was justified because of the employee’s repudiatory breach of contract. In Briscoe v Lubrizol Ltd 2002 IRLR 607, CA, the Court of Appeal approved the test set out in Neary and anor v Dean of Westminster 1999 IRLR 288, where Lord Jauncey asserted that the conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’. The Court of Appeal in Briscoe stressed that the employee’s conduct should be viewed objectively, and so an employee can repudiate the contract even without an intention to do so. Liability of individual Respondents 30. In relation to instructing, causing or inducing contraventions, s.111 EqA relevantly states: (1) A person (A) must not instruct another (B) to do in relation to a third person(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect. …(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation tob. B. (8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it… 31. In Bailey v Stonewall Equality Ltd and ors 2024 EAT 119, the EAT considered that a claimant must show first that person A’s conduct causally contributed to person B’s commission of the basic contravention on a ‘but for’ basis and, second, that the causal connection is such that, having regard to the statutory context and to all the facts of the case, making person A liable would be ‘fair or reasonable or just’. Although, strictly, there is no requirement for a discriminatory intention “to cause”, subjective intentions were relevant to the question of whether it was fair or reasonable or just to regard a respondent as having caused discrimination. The Tribunal need to distinguish between the ‘occasion’ for the discrimination, as opposed to its ‘cause’. For inducement, person A must intentionally induce person B to carry out an act or omission that contains all the elements of the statutory tort that is a basic contravention, including any mental element of the basic contravention. 32. In this case, the alleged inducement or causative act was Stonewall’s complaint to B’s chambers (“GCC”) against B and the relevant basic contravention was GCC’s determination of that complaint in a discriminatory way. The EAT considered it was not fair, reasonable or just for Stonewall to be liable for causing the discrimination. Whereas the tribunal found that B’s protected belief, rather than the manifestation of it, significantly influenced the outcome of the complaint about her conduct, Stonewall’s complaint was focused on the manifestation of the belief rather than the belief itself. Although the protected belief significantly influenced the making of the complaint there was nevertheless a lack of correspondence between the content of the complaint and its outcome. There was therefore no basis on which the tribunal was bound to construe the complaint as an inducement to discriminate on the ground of B’s belief. 33. In relation to aiding contraventions, section 112 EqA relevantly states: (1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so. 34. The EHRC Employment Code states that the helper must know that discrimination, harassment or victimisation is a probable outcome, but does not have to intend such an outcome — para 9.28. The Court of Appeal in Hallam and anor v Avery and anor 2000 ICR 583, has held that a predecessor to S.112(1) EqA did ‘not encompass the individual who either recklessly aids the commission of a prohibited discriminatory act or provides aid in circumstances where there is a foreseeable risk of discriminatory action by someone else’. Liability could only arise where the individual knows that the other party is discriminating, is about to discriminate or is contemplating discriminating. In addition, simply helping the perpetrator to reach a decision about what to do is not sufficient. The respondent must help the perpetrator to carry out the act. Remedy (limited to Polkey and contribution reductions) 35. S.123(1) ERA sets out that it is just and equitable, where the unfairly dismissed employee could have been dismissed fairly at a later date or if a proper procedure had been followed, to reduce compensation accordingly (see Polkey, above). 36. As part of the consideration of what would have happened had the claimant not been dismissed when they were, tribunals are required to consider the extent to which a termination (by dismissal or resignation) was inevitable or likely in any event, and if so, when? 37. Even if this involves considerable speculation, the tribunal should undertake that exercise carefully, rather than refusing to apply a Polkey reduction - Gover and ors v Propertycare Ltd 2006 ICR 1073, CA. The following guidance was given by Mr Justice Elias, as he then was, President of EAT in Software 2000 Ltd v Andrews and ors 2007 ICR 825: “in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee (for example, to the effect that he or she intended to retire in the near future) there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.” 38. Section 123(6) ERA states that: ‘Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’ 39. There is an equivalent provision for reduction of the basic award contained in S.122(2) ERA but the statutory language is such that s.122(2) gives tribunals a wide discretion whether or not to reduce the basic award on the ground of any kind of conduct on the employee’s part that occurred prior to the dismissal and that this discretion allowed a tribunal to choose, in an appropriate case, to make no reduction at all. This contrasts with the position under S.123(6) where, to justify any reduction at all on account of an employee’s conduct, the conduct in question must be shown to have caused or contributed to the employee’s dismissal. Given the less restrictive language of S.122(2), it follows that the capacity to make reductions to the compensatory award is more restrictive than in respect of the basic award (Optikinetics Ltd v Whooley 1999 ICR 984, EAT). 40. In Nelson v BBC (No.2) 1980 ICR 110, CA, the Court of Appeal said that three factors must be satisfied if the tribunal is to find contributory conduct:• the conduct must be culpable or blameworthy• the conduct must have actually caused or contributed to the dismissal, and• it must be just and equitable to reduce the award by the proportion specified. CONCLUSIONS Claims in direct disability discrimination Section 13-39 Equality Act 2010
CONCLUSIONS
[90]It is conceded by the Respondents that the Claimant was disabled for the purposes of section 6 of the Equality Act by reason of long covid/post viral fatigue syndrome from 16 March 2021 to 16 December 2021. For the purposes of the claims in this matter, that is the material period. Conclusions relating to the Claimant’s claims in direct disability discrimination[91]The Claimant alleges and relies upon 31 acts of alleged direct disability discrimination. Act 23 is broken down into six sub-categories. The Claimant also relies on the same acts as being the acts of unfavourable treatment in respect of her section 15 claim for discrimination arising from disability and harassment and some of those acts in respect of her victimisation claim.[92]Dealing with the direct discrimination claims we have made findings of fact which relate to some, if not all of those acts but we will deal with each of those acts in turn. Most of the acts we do not consider happened in the way in which the Claimant has alleged. Some have but we do not consider them to be less favourable treatment. Act 2.1[93]Miss Cohen did keep in contact with the Claimant throughout her sick leave which commenced in November 2020. She contacted her on 11 March 2021, 25 March 2021 and 15 April 2021. There appears to be no contact on 24 March as suggested in the list of issues. The Claimant admitted that she had mis-dated her note which was before us at that conversation. Nevertheless, we regard all of the contact throughout the course of the Claimant’s fitness to have been precisely what one would have expected of an employer seeking to assist and help and employee return from a period of sickness. We accept Miss Cohen’s evidence that she was simply keeping the Claimant in the loop about possible changes to the number of hours being offered at the nursery due simply to the fact that the nursery was struggling and it may be it may have been the only way to save the nursery. We accept that Miss Cohen took advice from the Local Authority about how best to deal with the nursery and that it was under discussion that there would be changes, including increasing nursery hours to 30. The contact was not in any way sinister and was merely another attempt by Miss Cohen to keep the Claimant informed and up to date and to give her the opportunity of having an input. Miss Cohen wished the Claimant to express a preference so that this could inform Miss Cohen as to how, potentially, to implement any new provisions in the nursery. There is absolutely no evidence at all that Miss Cohen contacted the Claimant and had these conversations because the Claimant had long covid, or that she would have treated anybody else who had a different ailment any differently. The reason for the discussions had nothing to do with the Claimant’s absence. It was necessary commercially for Miss Cohen to consider the 30 hour provision because of the decreasing numbers in the nursery. We imagine that the Respondent, and in particular Miss Cohen, would have been heavily criticised had she not spoken to the Claimant about these matters. We conclude that there is no way that these discussions were connected with the Claimant’s disability and could not, on any analysis, amount to less favourable treatment, unfaithful treatment or harassment. The evidence of these telephone calls and the other evidence surrounding them suggests that communications between the Claimant and Miss Cohen were convivial and friendly and not of a nature which the Claimant now alleges for the purpose of these proceedings.[94]This reasoning is also applied to 2.2 in the list of issues. There was no pressuring of the Claimant to accept a change in role, it was merely engaging her in a discussion about the possibility. That possibility had, of course, been in play prior to the Claimant going off sick.[95]Paragraph 2.3 - We do not accept the Claimant’s evidence here. We carefully considered the evidence we heard and we preferred the evidence of Miss Cohen. The purpose of the telephone call on 23 April was to inform the Claimant that she was going to be invited to an ill health capability hearing. By this time the Claimant had been off sick for some five months and it was part of the school’s policy that in such circumstances such a meeting would be arranged. We do not accept the Claimant’s version of events that she was told that the situation was no longer tenable and she should prepare herself for dismissal. We accept Miss Cohen’s version of events which is that it was part of the policy and procedure that one possible outcome of the hearing being dismissal had to be mentioned. Miss Cohen was specifically advised by HR that she should say this but she stressed that this one of a number of possible outcomes. We accept that Miss Cohen was worried about how to say this and asked for further guidance. She stuck, therefore, to the wording of the template letter which said, “Please be aware that one of the potential outcomes may be dismissal”. Here, once again, we find the Claimant’s evidence to be inconsistent and unreliable. For the purposes of this Tribunal she told us that she was told to “prepare yourself for dismissal”. However, in the documents before us and her notes for her Union advisors, she has said that during the conversation she was told that “could end in dismissal”, which is much closer than what Miss Cohen actually did say. The fact remains that this was not a dismissal meeting and the Claimant was not dismissed or even sanctioned pursuant to it. Nothing in what Miss Cohen said could be construed as in any way being connected with the Claimant’s disability, nor could it be less favourable treatment, unfavourable treatment or harassment.[96]Paragraph 2.4 - The Tribunal are somewhat baffled by this issue as there is nothing in law to suggest that an employee has to reach 100 days absence, at full pay, before an ill health capability hearing can be called. We consider that it was entirely reasonable to follow procedure on behalf of the Respondents and call a meeting to the length of absence which the Claimant had been off sick. It would have been remiss of them not to do so. The Claimant was not treated any differently to anyone else with a similar level of sickness absence. The decision to call the meeting was not related to their long covid. It could not be less favourable treatment or unfavourable treatment or indeed harassment. There is a second part of 2.4 which suggests that the invitation to the meeting was before any reasonable adjustments had been considered to support the Claimant’s return but this is not true. The Claimant had been referred to occupational health in January, February, March and April. The Claimant’s GP had been asked for a report. All the providing information about the possibility of a return to work and reasonable adjustments so that the school and Miss Cohen could consider these. It became clear, however, that there were no adjustments at the time that could have been put in place as the Claimant was unfit to return to work.[97]Paragraph 2.5 - It is not a matter of dispute that the Claimant was not allowed to be accompanied by a family member at the Ill Health Capability meeting. Miss Cohen sought advice from the Local Authority and was told that this should not be allowed as it was not part of the statutory entitlement. As a matter of fact, there is no evidence to suggest that this decision was in any way linked to the Claimant’s disability or her absence. It was simply a re-statement of the statutory policy, nothing more. This could not constitute less favourable treatment because of disability or unfavourable treatment because of something arising from the Claimant’s disability . Moreover we find that the Respondent did not know and could not reasonably be expected to have known that the Claimant was disabled at this time. They did not know until June. Nor would it satisfy the tests under section 26 for harassment due to the fact that the treatment was not, in any way, related to the Claimant’s disability. The Claimant’s reasonable adjustments claim – Section 20-21 and 39 Equality Act 2010.[98]The Claimant also relies on the refusal to allow her to be accompanied by a family member at the Ill Health Capability meeting as the foundation of her claim for a failure to make reasonable adjustments.[99]We have erudite written submissions from both Miss Moss and Miss McKie and Mr Nasiff. We are persuaded by Miss Moss. Certainly there is a PCP where an employee is permitted to be accompanied by a work colleague in accordance with the statutory provision under section 10 of the Employment Relations Act 1999. The implementation of such a policy in line with a statutory provision is a PCP.[100]However, it does not place this Claimant at a substantial disadvantage at this meeting. Miss McKie/Mr Nasiff asked us to believe that this was a career changing meeting. It was not. No sanctions followed this meeting and it was simply an investigatory meeting after a significant period of absence. It was therefore perfectly understandable and reasonable. We accept the provisions of Miss Moss that this PCP did not, on the facts before us, place the Claimant at a substantial disadvantage in comparison with persons who did not have her disability. The notes from the meeting do reflect that she represented herself well and was accompanied by a Trade Union Representative. She thanked the panel at the end and did not appear to be under any disadvantage. No evidence has been produced to suggest that her disability required close familial emotional support or that someone with her disability would not be able to engage properly in such a meeting.[101]In any event, even if we had concluded that there had been a substantial disadvantage, we also conclude on the facts that, at the time of the meeting, the Respondents had no actual or constructive knowledge of the Claimant’s disability. There was nothing in the occupational health reports or the fit notes or any other information given to the school by that time which suggested that the Claimant’s disability would be at a disadvantage without emotional support. There was no duty to make reasonable adjustments. The reasonable adjustments claim therefore fails.[102]Paragraph 2.6 - The List of Issues. Miss Cohen did present a statement which was one sided but it was presenting the Respondent’s position to the meeting. It was the management case. It was one side of the argument. The Claimant was present with a Union Representative to present the other side of the argument, which they did. We do not find that this statement of case amounted to less favourable treatment under section 13 unfavourable treatment and is not harassment under section 26 because it was not in any way connected to the Claimant’s disability or the Claimant’s absence. It was entirely proper and appropriate that at the meeting the school side should be put. Miss Cohen was the obvious candidate to put that statement. It must be remembered that the outcome of that meeting resulted in no sanction to the Claimant and in fact the school continued to “bend over backwards” to assist her from then on throughout her absence, including Miss Cohen subsequently agreeing to all her demands and putting in place extensive return to work provisions for the September return to work. We conclude that this cannot amount to direct discrimination under section 13 harassment, under section 26 or discrimination arising from disability under section 15. Even if we had concluded that it amounted to discrimination arising because of the Claimant’s absence, to have such a meeting would clearly have been a proportionate means of achieving a legitimate aim of managing sickness absence in accordance with the school’s policy.[103]Paragraph 2.7 – It is very common for Respondents and quite proper for them to resist assertions that an employee is disabled until sufficient medical evidence is produced to support the assertion. That resistance is often maintained throughout the Employment Tribunal proceedings until proper medical evidence is produced and, on occasion, is left to the Tribunal to decide whether the Claimant is disabled or not under section 6. In this instance, except Miss Moss’ submissions, that it is entirely standard not to concede a question which is properly to be determined in light of all the evidence. This lack of concession cannot be in this case, less favourable treatment, unfavourable treatment or harassment.[104]Paragraph 2.8 - This refers to the email of 17 May which was sent in order to organise a discussion regarding proposed changes to the nursery and the Claimant’s role. The Tribunal fails to see how this could amount to less favourable or unfavourable treatment. Miss Cohen was under pressure at that point to organise the 30 hour provision because she only had less than a term to put it in place. No doubt, had Miss Cohen not attempted to engage the Claimant in these considerations and discussions, this would have prompted a claim as well. This cannot be direct discrimination, discrimination arising or harassment.[105]Paragraph 2.9 – Once again, this email was necessary and reasonable. The email had nothing to do with the Claimant’s disability or her absence. This is not direct discrimination, discrimination arising or harassment.[106]Paragraph 2.10 – This claim centres around the school’s HR Advisor approaching the Claimant via her Union Representative on 26 May 2021, seeking the possibility of settlement. Once again, this demonstrates the conspiracy theory mentality of the Claimant in these proceedings. We agree with Miss Moss that this email is entirely innocuous. It cannot amount to less favourable treatment, unfavourable treatment or harassment. The Claimant’s disability or absence or allegations also had nothing to do with it. It is very common in these circumstances that parties attempt to agree time to discuss the possibility of seeking resolution. It is entirely desirable and appropriate that they should do so under the “without prejudice” cloak. If every time such an approach was made, it was immediately alleged that that such an approach amounted to various types of discrimination, parties would be completely discouraged and that would be undesirable. All the Claimant was asked was whether she was interested in having such a conversation. No conversation ultimately took place and nothing came of it.[107]Paragraph 2.11 – This relates to the proposal on 14 June that the Claimant could be the single 30 hour nursery teacher and SENCO at the Respondents. The Claimant was already engaged full time as the only nursery teacher and SENCO so this hardly represented a change. The Claimant knew because it had been the case from the beginning of her employment that the school’s requirements were SENCO duties to be done were likely to change over time and so therefore the time allocated would also change. It was a simple adjustment that was within the purview of the Headteacher to effect. It had nothing to do with the Claimant’s disability absence or various allegations. It was simply because Miss Cohen thought one afternoon a week dedicated to SENCO was sufficient because Miss Smith had been undertaking the role since November 2020 when the Claimant went off sick within that allocation of time. It is interesting to note that after the Claimant’s departure, that allocation of time remained, as had been when Miss Smith was covering it. This could not possibly amount to direct, discrimination arising from disability or harassment. There is no less favourable, unfavourable or treatment connected to the Claimant’s disability/absence or allegation. The Claimants have simply failed to provide any evidence to support this.[108]Paragraph 2.12 – This is an allegation that the Respondents failed to provide the Claimant with information she requested following that meeting on 14 June. Once again, we regard this as part of the Claimant’s conspiracy mindset. At or about this time the Claimant was repeatedly asking for written justification from the Local Authority regarding the single nursery teacher and seeking their details of what business reasons were driving any reorganisation. She also asked for business case data and the decision making process. This was prompted because Mr Nutton had shown the Claimant, during the 14 June meeting, minutes that illustrated that the consideration of the 30 hour provision was something which preexisted the Claimant’s sickness absence and had been discussed at Board level. The Tribunal suspects that this constant prompting was fostered by familial prompting from those assisting the Claimant. We accept Miss Cohen’s evidence and she clearly communicated this to the Claimant, that there was no business case in writing and the financial reports were confidential to the Board and could not be sent to her. The Claimant simply repeated her request and the response was the same. Ultimately, of course, it is a fact that Miss Cohen, who had throughout been attempting to help the Claimant as much as possible, totally capitulated and allowed the Claimant to retain the allocation of four afternoons of SENCO. The reason for not providing such reports is because they didn’t exist and the reason for not providing the financial report was entirely legitimate and had nothing to do with the Claimant’s disability, her absence or any allegation. This is not direct discrimination, discrimination arising or harassment.[109]Paragraph 2.13 – This refers to the meeting of 13 September and an allegation against the third and fourth Respondents, suggesting that they were influenced by Miss Cohen, the second Respondent. On the evidence we have heard we regard it as entirely legitimate that the Claimant be questioned about her medical condition as the school needed to know what adjustments were required for the Claimant. There is no evidence to suggest that this amounted to less favourable treatment, unfavourable treatment or harassment.[110]Paragraph 2.14 – This claims that the second and third Respondents, at a meeting on 20 September, pressurised the Claimant to work above and beyond the hours that she felt she would be able to do and beyond those recommended by occupational health or her GP. We do not accept that this happened. Neither Miss Cohen or Mr Nutton at the meeting on 20 September, pressurised the Claimant to work above and beyond the hours she felt she would be able to do so, or indeed, above and beyond those recommended by occupational health or her GP. Both occupational health and her GP had reported what the Claimant had considered was reasonable. The meeting was to consider what was workable. This resulted in an agreed return to work plan. We simply do not accept that this happened, it could not amount to less favourable treatment, direct discrimination, harassment or unfavourable treatment under the section 15 claim.[111]Paragraph 2.15 – this refers to an email of 21 September from Miss Cohen. This was part of a discussion concerning the Claimant’s return to work plan. The Tribunal does not accept the assertion that it recommended a dramatic increase in the hours and work that the Claimant had proposed for her return to work. It is simply not true, this was the agreed return to work plan. The email does not state that the Claimant alleged that the proposals don’t “feel like a return to work plan to me”. So this assertion simply did not take place. In any event we accept Miss Moss’ submissions that the process resulted in an agreed return to work plan, not alleged to have been unreasonable. We see no evidence to suggest that any part of the negotiation, which resulted in that agreed return to work plan constituted direct discrimination, harassment, discrimination arising from the Claimant’s disability in that there was no less favourable treatment, unfavourable treatment or any treatment which had anything to do with the Claimant’s disability, absence or any allegation she might have raised.[112]Paragraph 2.16 and 2.17 – As for 2.16, we do not accept that Miss Cohen told the Claimant to sign the visitor’s book and escorted her through the school to the nursery as though she was a visitor rather than a member of staff. Miss Cohen told the Claimant it didn’t matter which book she signed. Whether she signed the visitor’s book or the staff book could not be less favourable treatment or unfavourable treatment or harassment. It had nothing to do with the Claimant’s disability, absence or allegations raised. The same can be said for escorting her through the school. The Claimant was visiting the nursery that day, not working, so it was logical for health and safety reasons, that she signed the visitor’s book. The Tribunal imagines that had she been asked to sign the staff book she would have complained about that and not been asked to sign the visitor’s book. We regard this as just another example of the Claimant’s conspiracy mentality which bore no resemblance to reality. As for 2.17, Miss Cohen had not communicated the fact and/or any details of the Claimant’s return to work to other staff by 21 September, because at that point, no agreement had been reached on a return to work plan. She did not return to work until 24 September. Any such failure to communicate was for this reason and was nothing to do with the Claimant’s disability absence or any allegation she had raised.[113]Paragraph 2.18, 2.19 and 2.20 – Collectively, we simply do not accept the narrative set out in these issues as having occurred. It is a matter of fact that they did not. The weekly meetings, specified under 2.18, were not a method of critiquing the Claimant’s performance and subjecting her only to negative scrutiny and criticism. The evidence before us does not support this. These weekly meetings were to assist the Claimant in her return to work. There were some issues raised about some negative feed back from some of the Claimant’s colleagues but this was entirely appropriate and reasonable. The incident mentioned in 2.20, where Miss Cohen raised the question of the child who followed their parent out of the nursery was something, in the Tribunal’s view, Miss Cohen would have been remiss in not raising. Miss Cohen simply sought the Claimant’s explanation. No disciplinary process or indeed any sanction was pursued after that incident. Surely, if the conspiracy theories concerning the Claimant’s view of Miss Cohen were correct, such disciplinary action would have been pursued and could easily have been used against the Claimant. It was not. Nothing in these meetings and in the handling of that incident amounts to less favourable treatment, unfavourable treatment, harassment and is not in any way connected with the Claimant’s disability, her absences or any allegation she has raised.[114]Paragraph 2.21 – The allegation here is that Miss Cohen failed to appraise the Claimant of information relating to the child who left the nursery following its parent, as there were a known flight risk. The facts before us do not support the assertion that the child was a known flight risk. He had never previously followed his parent out of the nursery before 6 October 2021 so there was nothing to tell the Claimant about him.[115]Paragraph 2.22 – We do not accept that Miss Cohen, at the meeting of 30 September 2021 asked the Claimant, “Why do you sit a lot?” in a demeaning and humiliating way. The evidence before us does not support this. Miss Smith had asked the Claimant why she was sitting for a long time with a certain group of children because Miss Smith had observed the Claimant sitting outside for over 20 minutes on one occasion. Miss Smith told the Tribunal why she asked the Claimant this question. There is no evidence before us that this amounted to less favourable, unfavourable treatment, or harassment. It had nothing to do with the Claimant’s disability or absence, her return to work or any allegation she has raised. We accept Miss Moss’ assertion that it was entirely reasonable to venture such an enquiry to ensure good practice when nursery aged children was being followed and to comply with health and safety and safeguarding obligations.[116]Paragraph 2.23 and the six sub-sections of 2.23 – These allegations are all against Miss Cohen.[117]Paragraph 2.23.1 – We do not accept that Miss Cohen booked any farm trips. They were booked by nursery staff and were a regular slot arranged with the farm. It is part of the conspiracy narrative previously mentioned.[118]Paragraph 2.23.2 - Miss Cohen did not book forest trips. These were regular visits for the benefit of the children.[119]Paragraph 2.23.3 - We accept Miss Moss’ submission that this was not a criticism levelled at the Claimant for not arriving earlier and leaving later than her agreed hours to set up and clear away the classroom but it was something that needed to be discussed because there was nothing in the agreed return to work plan about whether or not the set up and clearing away would be done by the Claimant. It would normally be done by whoever was teaching the class. That is entirely logical. The Claimant suggesting that this amounts to direct discrimination, discrimination arising and harassment simply has no basis. Even if there had been criticism, which there was not, it could not have been because of the Claimant’s disability, absence or her various complaints. It was not related to the Claimant’s return to work but if we found that it was, it would have been an entirely legitimate and objectively justified act to seek clarity of the position with the Claimant to ensure the classroom was set up and cleared away. It would have been a proportionate means of achieving the legitimate aims. We accept the reasons set out by Miss Moss in her submission that it would have been necessary to ensure operational integrity, to enhance the learning of the children so the classes were set up ready for the children to arrive and start their learning and tidy it away ready for the next session and to ensure the health, safety and welfare of the children and staff in clean and tidy classrooms.[120]Paragraph 2.23.4 – Raises an allegation that Miss Cohen, between 24 September and 24 October 2021, frequently asked the Claimant when she would be able to supervise farm visits again and when she would be able to return full time. It is difficult to imagine how this could amount to less favourable treatment, unfavourable treatment, harassment or a detriment. We do not accept that this was the case. Weekly welfare meetings were arranged to monitor the Claimant’s progress on her return to work. This was entirely appropriate. It would have been odd if the Claimant had not been asked about her progress and when she might be able to supervise farm visits or return full time. How could the school possibly monitor her return if they had not asked such questions? Such actions were not less favourable treatment, unfavourable treatment or harassment.[121]Paragraph 2.23.5 - The email of 7 October was not a unilateral change to the agreed return to work plan. It was simply a proposal. It must be remembered that it was the Claimant who indicated that she felt she would be fit to return to full time work by 1 November and Miss Cohen had expressed some concern about this ambition. At the meeting on 15 October the proposal sent was discussed. The Claimant rejected the plan and it was not implemented. The Claimant was not pressurised to increase her hours and tasked dramatically or at all. Making such a proposal in respect of the management of the phased return to work, cannot be less or unfavourable treatment. It had nothing to do with the Claimant’s disability or absence or any allegation she has raised.[122]Paragraph 2.23.6 – This is covered in the paragraph above.[123]Paragraph 2.24 – The Tribunal finds that there is absolutely no evidence whatsoever to support the assertion at 2.24 of the list of issues that Mr Nutton was influenced by Miss Cohen in placing the Claimant on medical suspension from 29 October 2021. The act of so placing the Claimant on medical suspension, we do not find constituted direct discrimination arising from disability or harassment as it was not because of the Claimant’s disability or connected with it or her absence of the return to work plan or allegations she had raised. The reason was because it was the first time occupational health had raised the issue of depression and Mr Nutton was concerned that this could be itself, a separate disability or, as it subsequently turned out, not to be.[124]Paragraph 2.25 – The assertion at 2.25 is that the seventh Respondent, Miss Dorfman, was influenced by Miss Cohen and/or Mr Nutton in conducting her investigation into the Claimant’s grievance in a manner grossly biased in favour of Miss Cohen’s desired outcome. The Tribunal regards this as totally untrue. There is no evidence to suggest that Miss Dorfman was influenced by anyone. We heard evidence from her and we were very impressed with her evidence. It is quite clear that she was entirely independent and pursued a grievance process that was both fair and detailed before reaching an outcome she was entirely entitled to reach. The process was not in any way influenced by the Claimant’s disability, absence or return to work or any allegation she had raised. We entirely accept the assertion put forward by Miss Moss that the Claimant’s objections were based upon the fact that she did not like the outcome. The school went out of its way to fund an independent report which cost them over £11,000.00. There is simply no evidence at all to support this assertion.[125]Paragraph 2.27 – Once again, there is no evidence to show that any influence was brought to bear on Miss Dorfman in the conducting of her investigations and the preparation of her report. This plays once again into the general conspiracy theory which appears to have consumed the Claimant throughout these proceedings. We regard it as perfectly reasonable that in light of the allegations raised by the Claimant, Miss Dorfman would investigate what effect the plethora of complaints raised by the Claimant and those advising her, including her brother in law, might have had on Miss Cohen. Miss Dorfman is not a lawyer and we do not regard that it would be necessary for her report to be drafted as if she was. Nothing in that report could remotely constitute less favourable treatment, unfavourable treatment, harassment because of the Claimant’s disability, her absences, her return to work or any complaint she has raised. Miss Dorfman was doing what she was asked to do and, in the Tribunal’s view, produced a very good and comprehensively investigated report. Criticisms of that report are unfounded.[126]Paragraph 2.28 – The Tribunal does not consider it in any way untoward that the seventh Respondent raised the issue of potential upwards bullying by the Claimant against Miss Cohen. She was asked to investigate the grievance complaint and it was perfectly natural that she should investigate them globally and in the round. In doing so she referred to The Respondent’s policy. The suggestion that she was somehow influenced to do this by the second and third Respondent has no basis in fact.[127]Paragraph 2.29 – The Tribunal do not consider that it was, in any way, inappropriate for the third Respondent to state that the governing body would consider the fact that the seventh Respondent had raised the suggestion of upwards bullying. We agree with Miss Moss that it would have been remiss of Mr Nutton not to do so. His decision had nothing to do with the Claimant’s disability, her absences, return to work or allegations. The suggestion that Miss Cohen was behind this decision has no basis in fact and once again, feeds into the conspiracy narrative so beloved of the Claimant in these proceedings.[128]Paragraph 2.30 – We do not accept that the actions of Mr Nutton, as set out at 2.30 and 2.31, were any way influenced by Miss Cohen. There is no evidence at all to support the allegation that Miss Cohen had anything to do with the decision to dismiss the Claimant. We were perfectly happy with the evidence we heard from Miss Cohen in this respect. She had been put under enormous pressure by the unfounded allegations that had been ranged against her by the Claimant and was feeling enormous stress and strain as a result. This drove her to raise her own grievance but she subsequently withdrew it. The decision to dismiss the Claimant summarily without any proper process was a decision driven of Mr Nutton ratified by the Governors. There is no evidence that Miss Cohen was in any way involved.[129]Having considered the evidence we have heard and the documents before us, we cannot conclude that the decision to dismiss was an act of discrimination. It was not because of the Claimant’s disability nor was it because of the Claimant’s absence, her return to work or allegations she had raised. It was because, in light of all that had happened and following the report of Miss Dorfman, the genuine belief of Mr Nutton and he was supported by the Governors, that there had been such a breakdown in the relationship between the Claimant and those at the school, that it was impossible for the Claimant to return. The situation had reached a point where whatever the school and anyone at it, including Miss Cohen did, would never be good enough for the Claimant to return and continue her work. We do not find that it was as a result of the Claimant’s absence. It was as a result of Mr Nutton and the Governors taking the view that there was simply no way forward bearing in mind all that had gone on. We therefore do not consider that the decision to terminate the Claimant’s employment with immediate effect and dismiss her was an act of discrimination either under section 13, section 15, section 26, or section 27 of the Equality Act 2010. Remaining issues in the Claimant’s claim under Section 20/21 for a failure to make reasonable adjustments.[130]The Claimant relies on the second PCP in her reasonable adjustments claim which is that she alleges a requirement from 24 September to 16 December, the staff in particular those working in the nursery with SEN pupils who are part of the SLT who run a phased return to work, should have significant contact with Miss Cohen.[131]The Respondents admit that this is a PCP but are certain that the school did modify the usual practice that such contact between staff and Miss Cohen be on a one to one basis to the contact mainly being at weekly welfare meetings which Miss Smith was also present. It is alleged by the Claimant that this practice put her at a substantial disadvantage compared to people who did not have her disability and it making her substantially harder for her to continue to increase her working hours in the period 9 September 2021 to 16 December 2021. We do not accept there is any evidence to support the proposition that the Claimant was put at a substantial disadvantage by this PCP compared to people who did not have her disability. It was the Claimant’s desire that she did not wish to interact with Miss Cohen and that was largely because of the unfounded and unreasonable conspiracy theory that she held. We do not consider that there was a duty upon the Respondents to make an adjustment nor do we accept that there is any evidence put before us to suggest that there was a likelihood that had the school acceded to the Claimant’s request not to interact at all with Miss Cohen upon her return, it would have made it easier for her to increase her working hours after her return to work.[132]We also accept Miss Moss’ assertion that there is no evidence and it was not put to any of the Respondent’s witnesses that the school knew or could reasonably have known at that time because of the Claimant’s disability that her contact with Miss Cohen made it substantially harder for her to increase her working hours. There was no medical evidence to support that assertion.[133]Any suggestion that such an adjustment should have been made was not reasonable. It is a small school and it is entirely proper and appropriate that some contact on her return with Miss Cohen would be required. The Claimant’s claims in victimisation.[134]The Claimant relies on five alleged protected acts set out at paragraphs 25.1, 25.2, 25.3, 25.4 and 25.5 in the list of issues.[135]Paragraph 25.1 - The Act relied upon is that at the 13 May 2021 meeting the Claimant alleged that the Respondent had not complied with its duty to make reasonable adjustments for her to return to work after absence due to a knee injury in 2019 and had a history of “ignoring disabilities”. The detriment relied upon said to be because of this protected act, are the acts alleged in the list of issues at 2.7 to 2.12 (inclusive) and are said to be because the Claimant did the protected act at 25.1. The Tribunal considers that none of the alleged acts cited in the list of issues at 2.7 to 2.12 (inclusive) were done because of the alleged protected act. There is no connection between them. No evidence has been put forward to realistically form any connection. Moreover, the Tribunal also concludes that none of those alleged acts could, in any event, amount to a detriment. An unjustified sense of grievance cannot amount to a detriment. Many have not, and did not occur, in a way that has been alleged in the list of issues and we will not seek to repeat our conclusions by our findings of fact in this respect as we have dealt with this earlier in this judgment. However, it is clear that the Claimant’s claim in victimisation cannot succeed as none of those acts were detriments nor were they connected in any way to the protected act alleged.[136]We rely on the case law that has been cited earlier in this judgment to conclude that the high threshold that the act complained of must have occurred as a result of a significant influence of the protected act has not been reached. They did not. That applies irrespective of whether any of the acts relied upon could amount to a detriment. We conclude that they could not.[137]We return to the issue of whether 25.1 is a protected act below where we deal with that issue in respect of all of the alleged protected acts.[138]Paragraph 25.2 – The protected act relied upon is the solicitor’s letter of 12 July, raising allegations that certain of the Respondents were in breach of sections 13, 15, 27, 39 and 40 of the Equality Act in that they discriminated against the Claimant and victimised her in approaching her to persuade her to leave her employment at the time and in the manner in which they did. The detriment relied upon that the Claimant says are because of that protected act, is the allegation at 2.7. This is the allegation that at that time the Respondents would not admit that the Claimant was statutorily disabled. We dealt with this at paragraph 103 above. For the reasons set out there we do not consider that this was a detriment as it is common procedure in such matters that Respondents do not admit disability until they have sufficient medical evidence before them to be able to form a proper opinion. We do not see that that course of action can amount to a detriment. In any event, there is no evidence to support the assertion that that stance was taken because of the letter before action and the allegations within it. The stance was taken because, at the time, the Respondents had insufficient information before them to be able to consider conceding disability. It was not because they had received the Claimant’s solicitor’s letter of 12 July and the allegations within it.[139]Paragraph 25.3 – The protected act relied upon is the bringing of proceedings under the Equality Act on 9 September 2021 (the first claim). The detriment relied upon as being because of that alleged protected act is the allegations raised at 2.13 to 2.31 (inclusive). We have dealt with each and every one of those allegations in these conclusions and we will not repeat what we have said. Moreover, our findings do not agree, in every case, that the allegations set out at 2.13 to 2.31 occurred as alleged. For example, we do not accept that the acts asserted occurred in the way which is alleged. We do not accept that any of the acts referred to at 2.24 to 2.31 were undertaken under the influences that have been suggested in the list of issues. Much of 2.23 did not occur in the way in which it has been alleged – see above. Many of the allegations are simply wrong in fact or are skewed out of an unjustified sense of grievance and therefore could not successfully found an allegation successfully of victimisation. Despite that, even if they had occurred in the way which has been alleged we find no connection between those acts and the alleged protected act. There is nothing to suggest that the alleged protected act was a significant influence on any of those acts alleged. We accept that some of those acts will be happening in a way differently to the way which has been alleged in the list of issues, could amount to a detriment. Naturally, the Claimant’s dismissal was a detriment but for the reasons explained this victimisation claim is ill conceived and cannot succeed.[140]Paragraph 25.4 – The protected act relied upon is the raising of a grievance on 27 October, raising allegations that Miss Cohen had victimised, harassed and discriminated against the Claimant and failed to engage properly with her request for reasonable adjustments. The detriment relied upon as being because of this alleged protected act are those set out in the list of issues between 2.24 and 2.31. Our conclusions are the same as above and that is that we have stipulated that those acts did not occur in the way which it has been alleged. In any event, even if they had, and even if they amount to a detriment, as clearly the dismissal does, none of them are because of the alleged protected act. There is nothing to connect them and certainly nothing that reaches the relatively high bar as having been significantly influenced by the alleged protected act.[141]Paragraph 25.5 – The alleged protected act relied upon at 25.5 is the lodging of an appeal against the outcome of her grievance by the Claimant on 14 December 2021, reasserting that Miss Cohen had acted as alleged in 25.4. The acts relied upon as being detriments suffered by the Claimant because of this alleged protected act are those acts alleged at 2.30 and 2.31 of the list of issues, essentially informing the Claimant of her dismissal and dismissing her. Clearly, these are detriments but they are not detriments in any way connected to the alleged protected act. We made findings of fact that the reason that Mr Nutton and the Board of Governors moved to dismiss the Claimant so quickly was because of Miss Dorfman’s report and the fact that Mr Nutton took the view that in light of all the circumstances, the Claimant’s continued employment at the Respondents was untenable. We do not find that the grievance appeal was a significant influence on that decision. Certainly, the appeal was the last straw in a sequence of events which led to the decision to dismiss but it was not a significant influence. The Protected Acts[142]In the list of issues before us we have five protected acts, three of which are described as being (admitted). It appears that in her submissions, Miss Moss goes against that suggestion and alleges that none of the protected acts alleged are indeed protected acts under section 27. This is a departure. In her submissions she ventilates this argument on the basis that each of those acts relied upon were false and made in bad faith. Section 27(3) EQA[143]Arguably, it is not necessary for us to draw a conclusion on this as we have dismissed the victimisation claims for the reasons set out above. However, it is perhaps sensible that we do so. Having in mind to the authorities to which our attention has been brought concerning what does and does not amount to an allegation made in bad faith under 27(3). We are minded to consider that the falsity of the allegation does not necessarily mean that the employer acted in bad faith but may be a relevant consideration in determining the question. The more obviously false the allegation the more the Tribunal might be inclined to find it was made without honest belief. Moreover, an employee’s motivation for making the allegation in issue might be relevant to the Tribunal’s determination of bad faith. These are difficult concepts to wrestle with. Miss Moss asks us to consider that all of the protected acts alleged were made in bad faith. Certainly, for example in the solicitor’s letter of 12 July, there are many allegations which have, in evidence before this tribunal, been proven to be false. Similarly, the alleged protected act at25.1 alleging that the Respondent had a history of ignoring disabilities has not been supported by any evidence before us. Nevertheless, the fact that an allegation has been distorted or exaggerated does not of itself mean that it is made in bad faith. The line between deliberate falsification and negligence or recklessness in alleging something is a fine one. On balance, we consider that although misguided and containing falsehoods, 25.1,25.2 and 25.4 do not cross the threshold required to be precluded as protected acts under 27(3).25.3 is the act of bringing proceedings and is a protected act.[144]Only in respect of 25.5, which is the appeal against the grievance outcome, do we consider that the threshold of bad faith under 27(3) has been crossed. The reason we conclude this is because the report of Helen Dorfman was, as we have found in this Judgment, entirely independent and without outside influence. The Respondents went to great lengths to create a situation where an independent Assessor conducted a procedure to deal with the Claimant’s grievance and produced the report. The Claimant must have known and realised that the allegations that she raises in her appeal are without foundation. Miss Dorfman is not a lawyer and was not commissioned to investigate and produce a report on the basis of minute analysis of the law and its application to the allegations. We do not accept that the Claimant was unaware that the allegations raised in this appeal letter, which are considerable, were unreasonable and without foundation. For that reason we do consider that this alleged protected act was made in bad faith and therefore cannot be considered to be a protected act under section 27 (3).[145]For the reasons set out above the Claimant’s claims in victimisation fail. Unfair dismissal[146]We made findings of fact that Mr Nutton was the dismissor and he sought ratification from the Governors. However, it is clear to us from the evidence before us, both oral and documentary, that it was Mr Nutton’s decision, the seeking of ratification from the Board of Governors was a mere formality. There is much to criticise about the process undertaken by Mr Nutton and the outcome. We do, however, accept that he genuinely believed that the Claimant was guilty of misconduct and/or there had been an irretrievable breakdown in the relationship between the Claimant and the school. Both are potentially fair reasons under section 98(2) of the Employment Rights Act. What is clear, however, and has been admitted by Mr Nutton, is that no proper process was followed at all in the hastily arranged meeting on 15 December which led to the dismissal letter of 16 December. Not even the most perfunctory disciplinary procedure was followed. There was no disciplinary process or any investigation of allegations of misconduct pursued, there was no invitation to the Claimant to attend an investigatory process, no decision that such investigatory process should found disciplinary proceedings and no disciplinary proceedings at all were followed. Mr Nutton himself admitted as much.[147]On any analysis the dismissal has to be unfair under section 98.4 on the grounds of a failed procedure. The dismissal is therefore clearly procedurally unfair.[148]However, we must also consider whether the dismissal was substantively unfair and whether, on the authorities and the range of reasonable responses test, the dismissal was substantively unfair. A complete failure to investigate and allow the Claimant an opportunity to attend a disciplinary process where she would have been able to put forward a defence to allegations ranged against her can feed into a Tribunal’s decision as to whether, in the circumstances, the decision to dismiss fell within the band of reasonable responses.[149]In this case we are grateful to be referred by Mr Nasiff and Miss Mckie to a number of glaring issues which characterised this dismissal as being unusual. We accept that it is striking that the dismissal letter dated 16 December contains matters which were not dealt with at the dismissal meeting. These are set out by Mr Nasiff and Miss McKie at paragraph 311 and page 105 of their submissions. The letter includes reference to the safeguarding incident on 6 October 2021 as being misconduct relied upon as part of the conduct sufficient to dismiss as is making allegations against Miss Dorfman. Certain allegations touched upon in the meeting did not then appear in the letter such as unauthorised absences and covert recordings.[150]We therefore accept the submissions of Mr Nasiff and Miss Mckie that there were no genuine deliberations during the meeting. The die was cast, Mr Nutton made the decision to dismiss for the reasons we have already indicated. We do accept that he genuinely felt that there was misconduct and/or a complete breakdown. However, the process that was undertaken was wholly inadequate.[151]Even the most limited disciplinary process might have resulted in a different outcome but in nay event would have at least given the Claimant the opportunity of defending herself.[152]No reasonable employer faced with the circumstances that Mr Nutton was faced with on 15 and 16 December, could have concluded that to dismiss was fair or appropriate. The decision did not fall within the band of reasonable responses open to an employer at that time. The decision is therefore substantively unfair. It is possible, of course, that there might have been a time in the future when such a decision to dismiss could have been fair. That is something which we will seek submissions from the parties on at the Remedy Hearing in this matter. It will be open for the Tribunal to consider issues under the “Polkey principle” at the Remedy Hearing despite the fact that we have found the dismissal to be substantively unfair, there is plenty of authority on this. It is clear that it is open to a Tribunal to consider Polkey in a Remedy Hearing, albeit that it may be more difficult for a Respondent to persuade a Tribunal to apply a Polkey reduction in circumstances where a dismissal has been found to be substantively unfair. It is, however, something that a Tribunal is entitled to consider when undergoing a Remedy consideration under section 123 of the Employment Rights Act.[153]We will therefore expect to be addressed on this during the Remedy Hearing and will consider any other reductions in the amount of compensation in accordance with general principles. It will be necessary to consider mitigation and it may be necessary for us to consider whether the Claimant could, in any event, have continued to work for the Respondent in light of her disability and medical condition.[154]For all the above reasons we would expect to hear evidence from the Claimant at the Remedy Hearing to enable us to reach conclusions on these issues prior to arriving at a Judgment on quantum. It is for that reason that Remedy will be listed for a three day, in person hearing. Wrongful dismissal[155]The Claimant was dismissed without notice summarily and pursues a claim for damages for breach of contract or wrongful dismissal. The determination of whether such a dismissal was wrongful or not does depend upon the question set out by Miss Moss in her submissions, namely, that whether there is sufficient evidence before us to conclude that the Claimant committed gross misconduct which repudiated her contract of employment, entitling the school to dismiss her without notice. Essentially, the Claimant must have been in repudiatory breach by virtue of her conduct. That conduct must so undermine the trust and confidence which is inherent in the particular contract of employment, that the employer should no longer be required to retain the employee in the employment. Issues of fairness are irrelevant as the consideration is a contractual one.[156]The test is objective and the burden of proof is on the Respondents to provide evidence to show that the Claimant behaved in such a way that her conduct amounted to a repudiatory breach of contract.[157]Whilst the burden of proof is on the balance of probability, namely that we only have to be sufficiently convinced 51% to 49% that the Claimant was in such a breach for her wrongful dismissal claim to fail, we do not consider, on the evidence that we have heard, that the Respondents have discharged that burden. We have made some fairly disparaging findings of fact against the Claimant. However, a misguided belief in a conspiracy theory and an exaggerated assertion of allegations of discriminatory behaviour do not, of themselves, amount to conduct that goes to the root of the contract and constitutes a repudiatory breach, entitling the Respondent to dismiss without notice. The Respondent has failed to discharge the burden upon it and, in fact, has made little attempt to do so. We are asked by Miss Moss to consider all the reasons set out in the dismissal letter but, for the reasons we have already outlined, the dismissal letter does not wholly accord with the dismissal meeting nor were those findings made pursuant to any proper process. The dismissal was therefore wrongful. Liability of individuals[158]There were six individuals joined into these proceedings by the Claimant. The school concedes vicarious liability for any unlawful action of any of the individual Respondents. This does beg the question why the Claimant and those advising her felt it was necessary to join in so many individual Respondents. We accept Miss Moss’ submissions that it is far from clear which of the 173 allegations of discrimination are said to have been instructed or caused or induced or aided by the individual Respondent. Nevertheless, allegations against the six individuals are of no consequence in light of our findings in this Judgment in respect of the claims in discrimination, all of which have been dismissed. The finding of unfair dismissal or wrongful dismissal is against the first Respondent only. Remedy in respect of the finding of unfair and wrongful dismissal REMEDY HEARING[159]A remedy hearing will take place on 27, 28 and 29 August 2025, before EJ Palmer, Members, Ms S Williams and Mr R Allan, at Bury St Edmunds Employment Tribunal, 1st Floor Triton House, St Andrews Street North, Bury St Edmunds, Suffolk, IP33 1TR, in person. The parties should arrive on 27 August ready to commence at 10.00 am. It is expected that the Claimant will give evidence and the Claimant should consider whether a separate witness statement in respect of Remedy is appropriate. If the Claimant so chooses, then any witness statement in respect of Remedy which is produced in addition to the witness statement that was before the Tribunal on liability, should be sent to the Respondents 14 days before the first day of the Remedy Hearing. Approved by: