Miss S Mutter v Turning Point Scotland: 4100139/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100139/2019
Between
Miss S MutterClaimantTurning Point ScotlandRespondent
Before
Employment Judge McManusDate 8 February 2024
JUDGMENT
The judgment of the Tribunal is the claimant was not a disabled person during the relevant period for the purposes of the Equality Act 2010. The claims under the Equality Act 2010 in reliance on the protected characteristic of disability (only) are therefore dismissed.
REASONS
[1]The claimant has raised claims of unfair dismissal, breach of contract, redundancy payment and alleged discrimination on the grounds of the protective characteristics of disability and sex. There have been a number of Preliminary Hearings in this case for the purpose of case management. The issue of whether the claimant was a disabled person in terms of section 6 of the Equality Act 2010 (“the Equality Act”) was to be determined as a preliminary issue at this hearing.[2]The Note issued following the PH which took place in June 2021 set out my decision on the claimant’s application for strike out of the response, and my decision on further procedure. The claimant sought to appeal my decision not to strike out the response. On 22 March 2021, the Employment Tribunal office received correspondence from the EAT office that the claimant had appealed against a Registrar’s Order which refused the initial appeal as it had been submitted out of time and that the appeal against the Registrar’s Order had also been dismissed by Lord Fairley. The ET proceedings were progressed after the expiration of the 42 day period within which the claimant could seek leave to appeal to the Court of Session. That application was not substantively considered by the EAT, on the basis that it had been made out of time.[3]In my Note issued following the PH in June 2021, I set out the position with regard to further procedure in this case, and my reasoning for that. This included the following, under the heading ‘Medical Information re Question of Disability Status’:- “85. Following Lambrou v Cyprus Airways Ltd, I considered alternatives to strike out. In doing so, I have taken into account the essence of the claimant’s application for strike out, being her concern around disclosure of medical evidence to the respondent and the respondent’s representative. I have considered those concerns in light of the claimant’s position that it is no longer possible to have a fair hearing in these proceedings. 86 The progress of the claimant’s claims of disability discrimination now require a determination by the Employment Tribunal on whether the claimant has the protected characteristic of disability. The issue of disability status is a live one. Medical evidence is often necessary for an Employment Tribunal to make the findings necessary to determine whether a claimant has the protective characteristic of disability. As set out by then President of the EAT, Mr Justice Underhill, in Royal Bank Of Scotland plc v Morris EAT 0436/10, particularly in a case involving mental impairment such as anxiety or depression, there may be insufficient evidence before the Tribunal for it to draw any conclusions on essential elements of the definition of disability, including the duration or likely duration of the impairment relied upon. In that case, the EAT held that on the evidence before the Employment Tribunal, where there was no explicit evidence on the duration or likely duration of the impairment relied upon, no safe inferences could be drawn from the fact of medication being prescribed for six months. That case was in respect of proceedings brought under the Disability Discrimination Act 1995, prior to the Equality Act 2010 coming into force, but the principles set out there remain relevant. The EAT observed there that :- “while in the case of other kinds of impairment the contemporary medical notes or reports, even if they are not explicitly addressed to the issues arising under the [DDA] give a Tribunal a sufficient evidential basis to make common sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance.”87. There are cases where Employment Tribunals have found that the claimant is disabled as defined by the Equality Act without expert medical evidence e.g. in Bennett v English Provender Co Ltd and another ET Case No 1604740/12, where the claimant had been ordered to disclose GP records, but failed to do so, instead bringing a GP letter that provided some details. In that case the claimant had not given details of any disabilities when she had completed a pre-employment health questionnaire for the respondent, and had said she had no condition requiring regular medication. Notwithstanding these facts, the Employment Tribunal there accepted the claimant’s evidence that she had substantial difficulties with day-to-day activities that involved bending her knee, such as walking up and down stairs, standing up from a sitting position and getting in and out of the bath. It was found that she was disabled as defined by the Equality Act 2010.88. Following the decision of the Northern Ireland Court of Appeal in Veitch v Res Sky Group Ltd 2010 NICA 39, NICA, the presence or absence of medical evidence presented before the Employment Tribunal does not then necessarily mean that the Tribunal will be unable to reach a proper conclusion on the question of whether a claimant’s impairment has a long-term adverse effect on his or her ability to carry out normal day-today activities, but the presence or absence of medical evidence may be a matter of relevance to be taken into consideration when deciding what weight should be put on the claimant’s account of the difficulties caused by his or her impairment. The NI Court of Appeal there held that the absence of medical evidence may become of central importance in considering whether there is evidence of long-term adverse effects arising from an impairment, and frequently, in the absence of such evidence, a Tribunal would have insufficient material from which it could draw the conclusion that long-term effects had been demonstrated.89. In City Facilities Management UK Ltd v Ling EAT 0396/13, the claimant had been dismissed on grounds of capability following a lengthy absence on account of depression and anxiety and the Employment Judge there took the view that he required expert medical evidence to decide whether the claimant was disabled. The claimant was not in a position to pay for a consultant psychiatrist report. Having regard to the overriding objective of enabling Tribunals to deal with cases justly, and in particular the need to ensure that the parties were on an equal footing, the Judge ordered a medical expert report to be obtained at the employer’s expense. The EAT held that that evidence was not necessary because the burden of proof was on the claimant to establish that she was disabled. In that case, the claimant’s position was that she would give evidence on the impact of her condition on her ability to carry out normal day-today activities, and she had supplied a copy of her GP records to the Employment Tribunal.90. Medical records are often important evidence in establishing disability status. In Rayner v Turning Point & ors EAT 0397/10, His Honour Judge McMullen, QC, commented that a GP treating a condition such as depression over a long period of time is in a very strong position to give an authoritative view of materials relevant to the assessment of disability, and sometimes may be in a better position than a consultant examining a claimant on one occasion only. In that case the EAT concluded that the Employment Judge was under no duty proactively to seek further medical evidence, nor did the overriding objective require the employer to help support a weak claim by paying for an expert’s report.91. Even where there is a jointly instructed medical expert, ultimately the issue of whether a claimant has a mental impairment that amounts to a disability in terms of the Equality Act 2010 is one for the Employment Tribunal to determine (McKechnie Plastic Components v Grant EAT 02824/08).92. In GCHQ v Bachaus, referred to above, (which was determined on the 2004 Employment Tribunal Procedure Rules and the Disability Discrimination Act 1995, but is nonetheless still relevant to the present case) the EAT held that the ET in that case should have applied the test in Lane v Willis [1972] 1 WLR 333 and that if it had done so it would have concluded that the respondent, given the issues in the case, could not properly prepare its case without expert evidence and was significantly disadvantaged without the opportunity to obtain such evidence. In GCHQ v Bachaus, (at para 27 – 33) there was consideration by the EAT of the guidance laid out in De Keyser v Wison [2001] IRLR 324 at 330 and its application to that case. The EAT said:- “27. Guidance has been given by the Appeal Tribunal as to the procedure to be adopted for obtaining expert medical evidence in cases under the Disability Discrimination Act 1995: see De Keyser v Wison [2001] IRLR 324 at 330. The guidelines laid out in De Keyser always repay careful study. 28 In the first place, as De Keyser shows, the parties should consider carefully whether expert medical evidence is required and consider with the Tribunal whether it should be admitted: see guideline (1) in De Keyser. 29 In this case, it is plain that both parties considered whether expert medical evidence was required. Both thought that it was; the claimant first intended to instruct the treating psychiatrist, but then went to Dr Bowers, a consultant psychiatrist not involved in his treatment; the respondent from November 2011 intended to instruct a psychiatrist; the Tribunal considered the question of expert evidence with the parties and gave directions for its provision. 30 De Keyser then explains the two methods by which expert evidence may be obtained. 31 Firstly, there may be a joint expert report. This means a report parties agree the letter of instruction to the expert and the identity of the expert; or, in default of agreement, the Tribunal fixes the contents of the letter of instruction and the identity of the expert having heard submissions from the parties. This is, as De Keyser makes plain, the preferred course. 32 Secondly, however, each side may instruct their own expert. If this course is taken the parties are not required to agree, or the Tribunal to settle, the letter of instruction. Neither are the parties required to agree, or the Tribunal to settle, the identity of the experts. Generally speaking, each side is entitled to choose the expert it wishes to instruct, so long of course as the expert is in an appropriate discipline is in an appropriate discipline. In this case, the Tribunal permitted Mr Bacchus to choose from one of three names put forward by GCHQ. That was a more favourable order than Mr Bacchus was entitled to expect, given that the order was not for a joint expert. He was entitled to, and did, choose his own expert. GCHQ was entitled to do the same. Quite exceptional reasons would have been required before Mr Bacchus could properly veto GCHQ’s choice of expert: the Tribunal was, we think, plainly right to say that no such reasons existed here. 33 It is, we think, too late to return to the beginning now and adopt what would, with hindsight, have been a sensible course on both sides: the instruction of a joint expert with a jointly agreed letter of instruction. The parties have moved on; even when his first choice proved unacceptable to him. Mr Bacchus again instructed his own expert to provide a report and GCHQ attempted to do the same, but was met with Mr Bacchus’s rejection of the experts put forward. The question for the Tribunal was what is to be done in the light of Mr Bacchus’s refusal to cooperate? 34 Traditionally in the civil courts sanction for non-cooperation by a claimant with the obtaining by respondent of a medical report on his condition was a stay. The relevant principles of law which the court should apply when considering an application for a stay of proceedings, unless a claimant submitted to a medical examination by a specialist instructed by a defendant were set out in the judgment of Sachs LJ in Lane v Willis 1972 1 WLR 333. He said: “The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to the action, act when deciding whether to take the somewhat strong course of staying the action if a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an invasion of personal liberty. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim or defence without that examination.” 35. The remedy granted in the civil courts and stay reflects the consideration that the court has no intention of placing a claimant under penalty of contempt if he does not submit to medical examination. But the stay granted can and will be permanent if the claimant does not submit to medical examination within the timescale laid down, or (if an extension is applied for) such extension as is reasonable. 36 In the recent case of Abegaze v Shrewsbury College of Arts and Technology 2010 IRLR 238 - an employment case – Elias LJ set out what we regard as no more than a different route to the same conclusion: he proposed ‘a ‘unless order’ requiring the claimant to present himself for examination by a certain date, with the consequence that his case would be struck out for non-compliance if he refused or was otherwise uncooperative (para 51). 37 We consider that whichever remedy granted the test laid down in Lane v Willis is apposite. The party applying for the order must show that he is unable properly to prepare his defence without the examination and it must be reasonable - as it usually will be if that test is met - to make the order in the interests of justice.” 93. Having regard to the principles set out above in GCHQ v Baccus, and in line with my obligations in terms of the overriding objective in Rule 2, I now make Orders as set out below in respect of further procedure, and, in particular, the obtaining of expert medical evidence. 94. Given the nature of the impairments relied upon by the claimant in respect of both physical impairment and mental impairment, I am satisfied that without relevant medical evidence from an appropriate expert, there is a likelihood that the Tribunal would not have the necessary evidence to make findings in fact and reach a determination on whether the claimant has the protected characteristic of disability. I take into account that the claimant has provided an impact statement and a letter from her GP. There has been previous discussion with parties on the instruction of a medical expert. The respondent had previously agreed to meet the cost of instructing an expert and the costs of the claimant attending for examination. That was in relation to attendance at one examination. 95. Both parties have an obligation under Rule 2 to cooperate with each other and with the Employment Tribunal. I consider it to now be appropriate in these circumstances for there to be single expert reports. In this case, it is not too late for that route. No party has yet obtained an expert report. The letter from the claimant’s GP does not address the relevant questions. A single expert is an expert who is appointed by both parties on a joint basis. Given that the claimant relies on disability status in respect of both a physical and a mental impairment, it is appropriate for there to be a single expert appointed in respect of the physical impairment and another single expert in respect of the mental impairment. The single, jointly appointed expert in respect of the physical impairment relied upon by the claimant should be a consultant surgeon who advises on patients’ requirement for breast reduction surgery and carries out such surgery. The single, jointly appointed expert in respect of the mental impairment relied upon by the claimant ( (i.e. a consultant physiatrist who can report on the diagnosis and effect of the claimant’s anxiety state.). 96. In all these circumstances, I consider that the single experts who are jointly instructed should have no particular link to either party, i.e. should not be either the claimant’s treating physician or the respondent’s occupational health provider. Lists of consultants in Scotland with suitable expertise are readily available on the internet. On application of the obligation on both parties under Rule 2 to cooperate with each other and with the Employment Tribunal, I consider that the cost of instructing both joint experts, including travel costs for any examination of the claimant, should be split equally between the parties. Given all the circumstances in this case, I am now directing the terms of the letters of instruction to the single experts, as set out below.”[4]In that Note I then set out the explicit terms of the letter of instruction to the consultant surgeon and the consultant physiatrist.[5]Also in that Note I issued Case Management Orders, in the following terms:-(i) “By 1 November 2019 the respondent’s representative will provide the claimant with a list of three Consultant Psychiatrists for the purpose of the instructed psychiatrist then examining the claimant, and the claimant’s medical records, for the purpose of providing to both parties and to the Employment Tribunal a medical report in the term set out in this PH note.(ii) By 1 November 2019 the respondent will provide the claimant with a list of three Consultant Surgeons who have experience in assessing suitability for breast reduction operations and carrying out breast reduction operations, for the purpose of the instructed consultant surgeon then examining the claimant, and the claimant’s medical records, for the purpose of providing to both parties and to the Employment Tribunal a medical report addressing the following questions:-(iii) By 15 November 2019,the claimant will inform the respondent’s representative of the name of the consultant psychiatrist from the list of three provided by the respondent which the claimant agrees to be instructed to prepare the jointly instructed report, on the basis that the instructed expert will examine the claimant and review her medical records, and that the copies of the claimant’s medical records from the time of commencement of the claimant’s employment with the respondent on 16/08/2013 to date will be sent directly to that agreed joint expert, such disclosure being made on the basis of those medical records being treated as sensitive personal data, strictly private and confidential, and disclosed only as they relate to these Employment Tribunal proceedings.(iv) By 15 November 2019, the claimant will inform the respondent’s representative of the name of the consultant surgeon from the list of three provided by the respondent which the claimant agrees to be instructed to prepare the jointly instructed report, on the basis that the instructed expert will examine the claimant and review her medical records, and that the copies of the claimant’s medical records from the time of commencement of the claimant’s employment with the respondent 16/08/2013 to date will be sent directly to that agreed joint expert, such disclosure being made on the basis of those medical records being treated as sensitive personal data, strictly private and confidential, and disclosed only as they relate to these Employment Tribunal proceedings.(v) Within 7 days of the claimant providing the respondent’s representative with the name of each expert to be instructed on a joint basis, the respondent’s representative to send a letter of instruction to that expert, in the terms set out in this Order.(vi) That within 7 days of the claimant agreeing to which Consultant Psychiatrist and Consultant Surgeon should be instructed for the purpose of these joint reports, that the claimant arrange that copies of the claimant’s medical records from the time of commencement of the claimant’s employment with the respondent (16/08/13) to date will be sent directly to that agreed joint expert, such disclosure being made on the basis of those medical records being treated as sensitive personal data, strictly private and confidential, and disclosed only as they relate to these Employment Tribunal proceedings (on the basis that all of the claimant’s medical records from the time of commencement of her employment with the respondent do so relate). The claimant’s medical records include records from her GP, her treating Consultant Surgeon in respect of her breast reduction operation, and any attendances at Occupational Health. IMPORTANT INFORMATION ABOUT ORDERS (1) Any person who, without reasonable excuse, fails to comply with a requirement imposed under Rule 31 [requirement to disclose documents or information] of the Employment Tribunals (Constitution and Rules of Procedure 2013 is liable on summary conviction to a fine of up to £1,000.00 under section 7(4) of the Employment Tribunals Act 1996. (2) Failure to comply with an Order may result in the whole or part of a claim or response being struck out at or before the hearing or a costs or preparation time order. (3) A party may apply to the tribunal to vary or set aside an Order but must do so before the period for compliance with the Order has expired.”[6]Prior to that PH in June 2019, the respondent had requested that an Unless Order be issued on the claimant with regard to the instruction of medical report. I did not issue an Unless Order and set out the following with regard to further procedure:- “101. The case will now be listed for a Hearing to determine the issue of disability status only. The question of the respondent’s knowledge of any such disability status is reserved for the Final Hearing. 102 Orders issued in this note are issued under Rule 31 of the Procedure Rules. No Unless Order is presently issued under Rule 38. In consideration of the relevant authorities, as set out above, if it is the position of the claimant that she will not comply with the Orders set out in this PH Note, but she wishes to progress her claims brought under the Equality Act 2010 in reliance of the protected characteristic of disability, and in the event that the respondent maintains their position on the claimant’s disability status and insists on being able to instruct a relevant medical expert, I shall hear both parties’ submissions on whether an Unless Order should be granted under Rule 38. The effect of non-compliance with an Unless Order if then granted under Rule 38 in terms of the Order now issued in this Note would be strike out of the part of the claimant’s claims brought in reliance of the protected characteristic of disability. 113 Date Listing letters will be issued to allow the PH on disability status to be fixed taking into account the availability of parties, their representatives and both jointly instructed expert witnesses. 6. Neither party subsequently applied for any Order.[7]This PH had been scheduled to take place in person. On 8 December 2021, the claimant’s representative requested that the PH take place via CVP because of the Covid 19 pandemic and her own circumstances. The respondent’s representative expressed her preference for the hearing to be in person. The claimant’s representative expressed concern at further delay should the hearing be postponed. In further correspondence, both parties were asked for further information on their respective positions, to be submitted by noon on 24 December 2021, failing which the hearing would be converted to take place via CVP. No further correspondence was received by the Tribunal office from either party by that time and the in person hearing was converted to take place via CVP.[8]A Case Management Order had been issued requiring parties to liaise to lodge a Joint Bundle. This was not lodged by the timescale required in the Order.[9]The claimant was represented by her partner, who is not legally qualified. The respondent’s representative is legally qualified. I had regard to the overriding objective in Rule 2 of the Tribunal Rules of Procedure and sought to ensure equity between the parties by providing explanations about the procedure. Preliminary Discussions[10]It was confirmed that the only issue to be determined at this hearing was whether at the relevant time the claimant has disability status in terms of the Equality Act 2010. The question of the respondent’s knowledge of any such disability is to be determined at the Final Hearing.[11]The respondent’s representative accepted that the Joint Bundle ought to have been lodged earlier. Proceedings were adjourned for a short time to enable the Joint Bundle to be shared on the Document Upload Centre.[12]It was confirmed that the claimant relies on disability status with regard to both a physical and mental impairment. The claimant relies on macromastia and the requirement to have breast reduction surgery. Her position is that that condition caused her chronic back and shoulder pain and had mental effects, including anxiety.[13]It was confirmed that the only medical reports being relied upon are a report from Mr Romics (Consultant Oncoplastic Breast and General Surgeon) dated 14 September 2019 and a report from the claimant’s GP dated 5 September 2019. No expert report is being relied upon in respect of mental impairment specifically, i.e. from a physiatrist or psychologist. The claimant’s representative confirmed that they had noted the position as set out in the Note following the PH in June 2021 re reliance on expert medical evidence and had decided to proceed in reliance on the report from Dr Romics and the letter from the GP.[14]The Joint Bundle ran to 202 pages. The documents in that Bundle are referred to herein by their page number (JB1 – JB202 ). The Bundle included redacted extracts from the claimant’s GP records. Most of the documents on the Bundle were not referred to in evidence.[15]The claimant had previously provided an impact statement, in response to an Order. That response was at JB68 – JB69.[16]It was noted that the relevant period had been identified as from 15 January 2018 until 15 March 2019. That period had been identified with regard to the period within which the alleged discrimination is claimed to have taken place, as set out in the claimant’s Response to the Order at JB68 – 69.[17]Evidence was heard from the claimant only, who gave her evidence on affirmation. Following her evidence in chief, there was cross examination, questions from me, and re-examination.[18]It was agreed that both representatives would prepare skeleton written submissions and that these would be exchanged and sent to the Tribunal by 9.15am on 11 January 2022.[19]It was noted that the Equality Act Guidance would be relevant to the decision on disability status and that the representatives may wish to refer to this in their submissions,
Relevant law
[20]Section 6 of the Equality Act provides a definition of “disability” as follows: (1) A person (P) has a disability if: (a) P has a physical or mental impairment , and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.[21]S212(1) of the Equality Act provides that “substantial” means more than minor or trivial.[22]Schedule 1 of the Equality Act gives further details on the determination of a disability. For example, Schedule 1 para 2(1) provides that the effect of an impairment is long term is it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.[23]Para (5) provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if measures are being taken to correct it and but for that, it would be likely to have that effect.[24]The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. This is also confirmed in Aderemi v London and South Eastern Railway Ltd 2013 ICR 391. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc. ( Guidance D2 – D7).[25]The burden of proving disability lies with the claimant. There is no rule of law that the burden can only be discharged by adducing first hand medical evidence. In Morris v Royal Bank of Scotland UKEAT/0436/10, the EAT held that the existence or not of a mental impairment was very much a question for qualified and informed medical opinion. The EAT held that the particular nature of mental impairments required more than just the provision of medical notes. The issues would often be too subtle to allow it to make proper findings without expert assistance. It might be a pity if that was so but it was inescapable given the real difficulties of assessing in the case of mental impairment, issues such as likely duration, deduced risk and risk of recurrence.[26]J v DLA Piper set out the test at paras 41 – 46 and describes the distinction between clinical depression and reactive depression.[27]Following Morgan and Staffordshire University [2002] IRLR 190, the occasional use of terms such as “anxiety” “stress” and “depression, even by medical professionals will not amount to proof of a medical impairment, still less its proof at a particular time.[28]In dealing with these proceedings I took into consideration the relevant guidance in the Equal Treatment Bench Book, in particular Chapter 3 on Physical Disability and Chapter 4 on Mental Disability.
Issues
[29]None of the elements of the definition of disability were conceded. Therefore the Tribunal has to determine the following issues:• Did the claimant have a mental and /or physical impairment?• If so, did such impairment(s) have an adverse effect on her ability to carry out normal day to day activities?• If so, was that effect substantial ( as in more than minor or trivial)?• If so, was the effect long term? Findings in fact[30]The Tribunal makes the following findings in fact:[31]The claimant suffered with problems arising from her breast size, proportionate to the rest of her body (macromastia). These issues began when the claimant was 15 and increased until the claimant underwent bilateral breast reduction surgery on 26 January 2018.[32]The claimant’s macromastia affected her confidence and caused her embarrassment in social situations, particularly when meeting new people for the first time. When working for the respondent, the claimant required to attend daily meetings, often in mainly male environments. The claimant felt selfconscious about her macromastia. She wore scarves to hide her shape. She hunched. The claimant had difficulty finding clothes which fitted her. This caused her upset. She would often cry to friends and family. She felt anxious, particularly about meeting new people for the first time. She had low selfesteem. The pain and additional weight from her macromastia affected the claimant’s ability to do high impact sport. She had chronic back and shoulder pain. The claimant took paracetamol painkillers every week, but not every day, for this chronic pain. The pain affected the claimant’s ability to stand or sit for extended periods of time. She required to change her position to make herself more comfortable.[33]The claimant’s GP records record her attendances mentioning back pain (among other symptoms which are not alleged by the claimant to be related to her macromastia) in February 2010, June 2010 and May 2011. The records of those appointment do not mention the pain being related to macromastia. The GP records show that the claimant attended her GP on 23 June 2017, reporting ‘several years of concern’ about the macromastia. The record of that visit records that the claimant reported that this caused ‘upper back pain, worse after a long day at work’. It records the claimant reporting feeling selfconscious before male colleagues and having low mood. No medication or talking therapy treatment was prescribed or recommended. The claimant’s GP carried out an examination and referred her to Mr Laszlo Romics (Consultant Oncoplastic Breast and General Surgeon), with a view to breast reduction surgery. The referral letter (as referred to by Dr Romics in his report dated 14 September 2021) documented chronic back pain and shoulder pain. There was no documentation in that referral of any effect of mental impairment.[34]The claimant felt embarrassed about her macromastia and did not think that anything could be done to alter her situation. As the effects on her worsened, the claimant summoned up the courage to speak to her GP about the situation in June 2017. The claimant was surprised to then be told that medical treatment could be an option for her. She felt validated in respect of the effects which the macromastia caused her.[35]The claimant was examined by Dr Romics on 9 September 2017. She was assessed as having a legitimate need (as stated in GP report dated 5 September 2019) and had bilateral breast reduction surgery carried out on 26 January 2018. Dr Romics’ letter of 14 September 2021 records that a ‘substantial amount of breast tissue had been removed from both sides and therefore she underwent a significant reduction’. The claimant understands that 2lbs of tissue was removed.[36]Following her consultation with Dr Romics and the assessment of her clinical presentation as being suitable for surgery, and prior to the surgery, the claimant was anxious about undergoing the procedure. Dr Romics had discussed with her the risks and benefits of surgery. The claimant considered that the surgery would change her ‘whole quality of life’. Only a few months had elapsed from the time when she had first consulted her GP to the surgery date. The claimant was anxious about undergoing what she considered to be a ‘life changing thing’. The claimant consulted her GP about this anxiety. The GP records record that the claimant was prescribed medication (Propranolol) for this anxiety from October 2018 until March 2019. The letter from the claimant’s GP of 5 September 2019 states that that medication was continued ‘due to stress at her workplace due to receiving warnings for taking time off to recover from her surgery’.[37]Following her recovery from the surgery, the claimant’s self-confidence, mood and self-esteem increased. She sat up straight rather than hunching. She felt that a weight had been lifted from her shoulders. She found trying on clothes a pleasure and was delighted at being able to easily find clothes to fit her new body shape. She was able to exercise and began participating in high impact sports. She began running and doing boot camp classes four times a week.[38]The claimant worked in social care and had an understanding of disability issues and the definition of being a disabled person. In internal job applications made to the respondent, the claimant did not indicate that she considered herself to be a disabled person. Observations on the evidence[39]The claimant gave her evidence in a straightforward manner.[40]The claimant’s evidence was that her macromastia affected her confidence and caused her embarrassment in social situations, particularly when meeting new people for the first time. There was however a lack of evidence in respect of the extent of the limitations which that caused to her. The claimant said “I worked in social care. There’s a lot of male environments. I was always conscious of what I would be wearing. I was embarrassed, selfconscious on a day-to-day basis.” Her evidence was that she would often cry to family and friends about the situation. The claimant’s evidence before me was not entirely in line with her impact statement. In her evidence, the claimant did not mention any issues with sleeping. She did not mention any avoidance of social events. The claimant’s response to the order (impact statement) set out:- “I had constant pain and hunching to contend with throughout my day and affected my sleep. I was unable to exercise properly and I felt shamed by looks that I often got. I was often unable to find clothes that fit properly and those that did I had to choose carefully to cover up at work. I would avoid going to social events. My impairments were constant throughout the day and affected me throughout many of my day to day tasks, such as standing or sitting for long periods of time, or conversing with others. The impairments were as mentioned both progressive so the long term adverse effect would have been increasingly impactive.”[41]There was no medical evidence on any diagnosis of a mental impairment, or on the extent of any mental impairment or any psychological effects of the macromastia. I had set out in the Note following the PH in June 2021 that evidence from medical reports was likely to be important in this case. The claimant’s representative’s position in his submissions was that the claimant had chosen not to obtain a medical report on any mental effect, on the basis that those effects are no longer present, given that the surgery has corrected the underlaying condition. That position does not take into account the skilled basis on which professionals undertake reporting on such circumstances. I was then hampered by the lack of expert evidence. Redacted medical records were produced. I took into account the claimant’s evidence before me, her response to the Order (impact statement), the GP report dated 5 September 2019, the letter from Dr Romics dated 14 September 2021 and the redacted GP records. The onus of proof is on the claimant.[42]I considered it to be significant that the report from Dr Romics states that in the referral letter from the GP there was no documentation about mental impairment. Neither Mr Romics nor the claimant’s GP spoke to their reports at the Hearing and there was no explanation for there being no mention of any mental impairment in the referral letter.[43]The claimant’s evidence was “I just really struggled when buying new clothes. It was always a nightmare. Nothing suited me or was too big. It was a daily struggle. I’d wear scarves to disguise or hide my chest, to try to minimise the look / appearance.” Her evidence was that her ability to sit and stand for extended periods was limited because of her macromastia. There was no evidence on the extent of those limitations. The claimant’s evidence was that her surgery was ‘life changing’’ and that it ‘changed my whole quality of life’.[44]I placed significance on the claimant’s evidence on the changes since her breast reduction surgery. The claimant did not say in her evidence that there was any change to her participation in social activities since the surgery. Her evidence was “Once I recovered from the surgery, I felt more confident. I could sit up straight. Literally there was a weight lifted from my shoulders. The surgeon said he had removed 2lbs. If you can imagine, that’s like carrying two bags bag of sugar. Trying on clothes was exciting. I was able to exercise. Now I go to boot camp four times a week and do lots of high impact exercise, like running. Before I couldn’t do that because of the pain and weight. Mentally I felt very self-conscious because of the proportions of my body.”[45]The claimant’s position in her evidence on the effects of her macromastia was not challenged in cross examination. The cross examination was mainly in respect of various applications for internal vacancies within the respondent’s organisation which the claimant had applied for. The respondent relied on the claimant not having considered herself to be a disabled person when making these applications, and the claimant’s awareness of disability issues. The claimant’s position on that was that it ‘took a lot’ for her to discuss her experience with her GP and that once she had done that it had made her realise the extent of the effects and that something could be done about it. I considered that explanation to be credible and plausible. The respondent’s representative relied on there being no evidence of any effect on the claimant’s ability to carry out her job (the test is of course with regard to the claimant’s day to day activities). Submissions[46]Both representatives prepared written submissions. These were exchanged on the morning of 11 January. Time was given for each representative to consider the other’s written submission, then each representative gave oral submissions, including comment on the other party’s position. It was noted that in both representative’s submissions, they sought to rely on matters on which there had been no evidence before the Tribunal. It was explained to the representatives that my decision must be taken on the basis of the evidence before me.[47]The claimant’s representative’s position was the claimant’s macromastia had had both physical and mental effects. In his submissions, the claimant’s representative relied on the physical impairments being “back pain, shoulder/neck pain, physical hunch, fatigue, inability to lose weight (based on inability to exercise freely)”. In respect of mental impairment, the reliance was on “persistent/consistent anxiety, stress, low mood, overly self-conscious, substantial social embarrassment.” Reliance was placed on the GP records. It was submitted that the need for significant correctional surgery to avoid life-long pain and anguish is of ‘utmost prominence’ when considering the issue of disability status. It was submitted that the impairments were “significant enough to cause effects out-with the "norm"”. Reference was made to the Equality Act 2010 Guidance. It was submitted that the effects were cumulative; had a combined effect; and were deemed to be likely be progressive, with reliance on the content of the GP report.[48]Not all of what was said in the claimant’s representative’s submissions was supported in evidence. There was no evidence on the extent of the limitation on standing or sitting. There was no evidence of any difficulty getting dressed. Reliance was placed on the claimant’s problems choosing clothes to wear, her anxiety and the physical pain. It was submitted that the GP record of the claimant’s report that she often felt worse after a long day at work was consistent with the claimant’s evidence before the Tribunal that the effects were "constant" throughout a typical day as well as "draining".[49]I did not accept the claimant’s representative’s submission that the claimant had ‘mentioned avoiding social situations which may have exasperated her anxiety’ The claimant did give evidence of difficulties she felt in social interactions, particularly meeting new people, but she did not say in evidence that she had therefore avoided any social interactions. It was her evidence that she required to meet people, often male, in the context of her work duties, and that that caused her to feel uncomfortable. There was no evidence that she took steps to avoid such meetings. The claimant’s representative’s submissions confirmed that the claimant had interacted with new people ‘almost every day in her line of work’. Reliance was placed on the claimant having to avoid exercising due to pain and embarrassment and these factors contributing to her low mood, in a ‘vicious cycle’. Reliance was placed on the claimant crying often as a result. It was submitted that ‘the level of this was not normal’ and that removing the impairments resulted in these effects being removed from Shauna's day-to-day life.[50]In relation to the effects being long term, reliance was placed on the GP records noting back pain in 2010. It was submitted that the effects were progressive and would have continued had the surgery not been carried out. The claimant’s representative’s submissions were that since her surgery, the claimant no longer suffers with either mental or physical symptoms from these impairments, has no more physical pain, is now able to exercise 4 times a week, feels a lot more confident, and can choose and wear clothes much more freely/normally. It was submitted that the impairments and/or effects would have got worse or lasted for a lifetime should the claimant not have been given correctional surgery and that the conditions were progressive. Reliance was placed on a significant amount of breast tissue having been removed. It was submitted that without the significant corrective surgery, the impairments and their effects would likely have progressed. Reliance was placed on the claimant not believing that there was anything that could be done about her situation and her position that it took a lot of courage to approach this subject with her GP.[51]Both representatives made reference was made to the statutory Guidance.[52]It was the claimant’s representative’s submission that it was not considered that it would be beneficial to appoint external professional reports for the purpose of this tribunal because the claimant believed that anyone assessing her now would not be in a position to get a correct picture, as the symptoms do not exist anymore. It was submitted that only the GP, the surgeon, and the respondent's Occupational Health at the time of operation were able to assess her physically and mentally. It was the claimant’s position in evidence that she had not been examined by Occupational Health.[53]In summary, the respondent’s representative’s position was that the claimant had not brought sufficient evidence to show that the extent of the effect of the macromastia was so substantial that she met the definition of a disabled person in term so the Equality Act 2010. She accepted that she had not challenged the claimant’s evidence on the extent being ‘life changing’. She placed reliance on the claimant’s evidence being that there was an effect on the clothes she chose to wear (not on carrying out the activity of shopping) and on her ability to partake in high impact exercise. It was submitted that high impact sport was not a normal day to day activity. It was submitted that the impact on the claimant’s day to day activities was not substantial. It was submitted that there was no evidence of the condition being progressive. Reliance was placed on there being no diagnosis of a mental impairment. The respondent’s representative submitted that the condition was not long term. Her position was that at the point when the claimant had her surgery, she did not meet the statutory definition of disability.[54]The respondent’s written submissions mentioned Tesco v Tenant UKEAT/0167/19/00 and Goodwin v Patent Office but did not direct me to any particular passage in either authority.[55]The claimant had relied on having both a physical and mental impairment, and having disability status in respect of each. Her representative’s position was that the cause of both the physical and mental impairments was the claimant’s macromastia.[56]While noting that the focus is on the statutory definition, I had regard to the statutory Guidance on matters to be taken into account when determining questions relating to the definition of disability. I considered this Guidance in its entirety. I make reference below to paragraphs in the Guidance which I considered to be particularly relevant.[57]On consideration of the Guidance (B4 – B6), I approached the question of disability status on the basis of consideration of the cumulative effects which the macromastia had on the claimant, and her ability to carry out day to day activities. I took this approach because the root of all of what was relied on was the claimant’s macromastia and because there was no evidence before me of any diagnosis of any mental health condition. I took into account Morgan and Staffordshire University [2002] IRLR 190, and that the occasional use of terms such as “anxiety” “stress” and “depression”, even by medical professionals will not amount to proof of a medical impairment, still less its proof at a particular time. I took into account the distinction between reactive depression and clinical depression, as described in J v DLA Piper. Although in the claimant’s representative’s submissions he referred to the claimant being ‘depressed’ that was not supported by any medical evidence of a diagnosis of depression, reactive or otherwise.[58]It was not contested that the macromastia had an effect on how it been the claimant feel. There was no evidence before me of diagnosis of any mental health condition. There was no medical report on the psychological or psychiatric effect, or of any separate mental health condition. The GP report refers to ‘low mood and anxiety’ and that the claimant ‘reported feeling very self conscious about her appearance’. I took into account that the GP report sets out that the claimant had not seen her GP about low mood until June 2017. I noted that the claimant was treated with medication for anxiety in the period immediately prior to her surgery. The claimant’s evidence was that that was connected to anxiety at undergoing the surgery itself.[59]Although I accept that the effects of the claimant’s macromastia worsened up to the time of her surgery, I did not accept the claimant’s representative’s submission that that was a progressive condition, in term so the Equality Act 2010. It was not progressive in the sense that a condition such as Multiple Sclerosis or Motor Neuron Disease is, where it is known that that condition will progress to a different stage or stages.[60]I addressed each issue I required to consider in coming to my decision. Did the claimant have a physical or mental impairment?[61]I took into account the statutory guidance at A3. I noted that with regard to the question of whether the claimant was a disabled person at the relevant time, the consideration should be on the effect(s) of the impairment(s), rather than the condition itself. The claimant’s condition of macromastia was an impairment. I then had to consider the effect that impairment had on the claimant’s day to day activities.[62]There was not sufficient evidence before me to support a conclusion that the claimant had a mental impairment. It was the claimant’s position that the mental impairment relied on was as a result of the macromastia. I considered that to be significant. In all the circumstances the correct approach was to consider the cumulative effects of the macromastia.[63]The claimant had the physical impairment of macromastia. I then considered the effects of that impairment. Did that impairment have an adverse effect on her ability to carry out normal day-to- day activities?[64]Turning to the effect of that impairment on the claimant’s ability to carry out day to day activities, I noted the terms of the Statutory Guidance that I should focus not on what the claimant could do but what she could not do or only do with difficulty.[65]On the evidence before me, I accepted that the claimant’s macromastia had an adverse effect on her day to day activities, as set out in the findings in fact. The macromastia caused the claimant to have chronic back and shoulder pain. It caused her to hunch. She experienced low mood, anxiety and low self-esteem. It affected her confidence. It caused her to feel self-conscious and embarrassed. She felt embarrassed in social situations, particularly in mainly male environments and when meeting people for the first time. She wore scarves to hide her frame. She had difficulty choosing clothes which fitted and she felt comfortable in. That caused her upset. The claimant cried to family and friends about the effects of the macromastia. She required to change position when sitting or standing for extended periods. She was unable to participate in high impact sports because of the pain and weight of the macromastia. Was that effect substantial?[66]This is the key question in this case. I noted the position set out at B1 of the Guidance and section 212(1) of the Equality Act 2010. I noted that that what has to be considered is the effect on normal day to day activities.[67]My consideration of this question was hampered by the lack of medical evidence. I had set out in the Note following the PH in June 2019 that medical evidence from appropriate experts can be important in the determination of disability status, particularly where mental impairment is relied upon. The claimant and her representative had chosen not to instruct an expert on the mental / psychological effects of her macromastia.[68]A substantial effect is one which is ‘more than minor or trivial’. The concentration is on what the claimant could not do rather than what she could do. I placed little weight on the respondent’s representative’s reliance on the claimant being able to undertake her work duties. The test is with regard to normal day to day activities. These was no evidence before me on the duties required of the claimant in her role with the respondent, other than the claimant’s evidence with regard to attending meetings. There was no evidence that her chronic pain caused any limitations beyond ability to do high impact sports. I accepted the respondent’s representative’s submission that there was no evidence of the claimant having any mobility difficulties. There was no evidence of the claimant having any difficulties with lifting or other such physical activities.[69]There was little evidence on the extent of the effect on her social interactions. Although the impact statement contains the sentence “I would avoid going to social events “ the claimant did not speak to that in her evidence before the Tribunal. There was no evidence before me on the extent of any such avoidance. The claimant was asked open questions about the effects on her and did not mention avoidance of social events. I considered that if the extent of any avoidance had been significant, then the claimant would have mentioned that in her evidence before me. Although she described difficultly in choosing suitable clothes for social events, and her feelings of anxiety, low self-esteem, embarrassment, etc., she did not say that she had avoided going to any events because of her macromastia. I considered that to be significant. The effects of anxiety, low mood, low self-esteem, self-consciousness, embarrassment. and low confidence were psychological effects. There was little evidence, and no expert report, on the extent of those effects on the claimant’s normal day to day activities.[70]I have no doubt that the claimant’s macromastia had an effect on her. That effect was phycological in respect of causing her anxiety, low mood, low selfesteem and high self-consciousness. There were also physical effects of chronic back and shoulder pain. The fact of those effects was not disputed. In terms of her clinical presentation, it is not disputed that she was assessed as having a legitimate need for bilateral breast reduction surgery and that a significant amount of breast tissue was removed. In these circumstances, I did not accept the respondent’s representative’s submission that the effects were ‘no more than anyone else who had a specific hang up about their body’. I considered that to be inappropriate language and did not accept the premise, in circumstances where the claimant’s clinical legitimate need for the surgery was not disputed. I did not accept the respondent’s representative’s reliance on the surgery being ‘elective’. The fact that a surgery is elective does not of itself mean that there is not a clinical need for the surgery to take place. I had to consider the extent of the effects on her normal day to day activities.[71]I noted the respondent’s representative’s reliance on the claimant being able to carry out her work duties without difficulty. The consideration of the substantial effect is in respect of day to day activities, not work activities. I accepted the respondent’s representative’s submission that there was no evidence to support the claimant’s representative’s submission that the claimant had difficulty dressing.[72]I took into account the claimant’s evidence in respect of the extent of painkillers taken for her chronic pain.[73]There was no evidence of any adverse effect on the time taken by the claimant to carry out any activities (Guidance B2). The evidence on the way in which activities were carried out (Guidance B3) was that the claimant wore clothes to cover her shape, hunched and altered her position when standing or sitting for (unspecified) lengthy periods.[74]I took into account B6 of the guidance and the cumulative effects of condition. I considered whether taken together the effects of the claimant’s macromastia amounted to the impairment having a substantial adverse effect on her carrying out normal day to day activities. Although the examples in the Guidance are not an exhaustive list, I had regard to the extent considered in those examples to be a substantial effect. On the evidence before me, the cumulative effect of the claimant’s macromastia was not in line with the effects in those examples. I took into account the claimant’s evidence that the surgery was ‘life changing’. There was no expert report on the psychological effects and the improvement in the claimant’s social interactions since the surgery. There was not sufficient evidence before me to conclude that those effects were substantive in the sense set out in the Guidance.[75]I placed significance on, and was guided by the EAT’s decision in Paterson v Commissioner of Police of the Metropolis 2007 ICR 1522, EAT. In that case, the EAT (the President of the EAT, Mr Justice Elias, as he then was, presiding) emphasised that, in assessing an impairment’s effect on a claimant’s ability to carry out normal day-to-day activities, a tribunal should not compare what the claimant can do with what the average person can do. I considered that to be important with regard to the claimant’s representative’s submission on the ‘norm’. Rather, the correct comparison is between what the claimant can do and what he or she could do without the impairment. Referring to what is now para B1 of the Guidance, Elias P observed that in order to be substantial ‘the effect must fall outwith the normal range of effects that one might expect from a cross section of the population’, but ‘when assessing the effect, the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.’[76]Although the claimant’s evidence that her surgery was ‘life changing’ was compelling, I had to consider the extent of the evidence which supported that position. Following Paterson I compared the claimant’s ability to carry out normal day-to-day activities with the ability she would have if not impaired. Unusually, I was able to do this literally in this case, because the evidence was that the surgery stopped the effects of the impairment. I therefore placed significance on the claimant’s evidence on her life after the surgery. I considered it to be significant that the claimant’s evidence on what was life changing was her ability to find and choose clothes which fitted her and her ability to participate in high impact sports and her higher confidence. I took into account the decision of the EAT in Elliott v Dorset County Council EAT 0197/20, which had considered Paterson. I noted that I should focus on the statutory definition and on whether the effect on day to day activities was minor or trivial. I sought to identify the day-to-day activities, including work activities, that the claimant could not do, or could only do with difficulty. The only activity which the claimant said in evidence that she could not do because of her macromastia was high impact sport. There was a lack of evidence on the day to day activities which she could only do with difficulty[77]Both representatives relied on B7 of the Guidance. I took this into account. I accepted the respondent’s representative’s submissions that there was no evidence that the claimant had difficulty doing shopping. The claimant’s difficulty with regard to shopping was in choosing clothes which she felt suitable and comfortable. I considered the evidence on the claimant choosing to wear scarves at work. I considered that to be a coping strategy, as referred to in B7. There was no suggestion in evidence that the claimant’s chronic back pain or other effects of the macromastia led to her having any mobility difficulties, other than in relation to time standing and sitting.[78]I took into account B9 of the Guidance. The claimant’s evidence was that her macromastia affected her confidence and caused her embarrassment in social situations, particularly when meeting new people for the first time. There was however a lack of evidence in respect of the extent of the limitations in social interactions which that caused to her. I noted the claimant’s representative’s comments on the respondent’s representative’s submissions and that his position was that the claimant ‘was a good worker but in her mind she was doing it with difficulty’. There was a lack of evidence on the extent of any such difficulties.[79]I was hampered by the lack of medical evidence. I took into consideration the decision of the Northern Ireland Court of Appeal in Veitch v Res Sky Group Ltd 2010 NICA 39, NICA, what I had set out in the June 2019 PH Note re. the likely importance of medical records. I took into account the inconsistencies between the claimant’s response to the order (impact statement) and her evidence before me (with regard to any limitations on social interactions and effect on sleep). For these reasons, and on consideration of the Guidance, on balance, I decided that the cumulative effect of the macromastia on the claimant’s normal day to day activities was not substantial. Without supportive expert medical evidence and without any evidence of the extent of limitation on social interactions, there was insufficient evidence before me to lead me to conclude that the effect on the claimant’s normal day to day activities was substantial. Was the substantial adverse effect long term?[80]Notwithstanding my decision above, I considered that the effects of the claimant’s macromastia were long term. The claimant’s evidence that she had suffered the effects of her macromastia since aged 15, until the corrective surgery at aged 27 was not disputed in cross examination. The claimant’s GP records record that when the claimant attended her GP about the issue in June 2017 she reported ‘several years of concern’. Although there was insufficient evidence for me to conclude that the cumulative effects were substantial, within the meaning of the Act and the Guidance, the effects were long term, having lasted or be likely to last at least 12 months, had it not been for the reduction surgery. Had the claimant not had that surgery, the cumulative effects of the macromastia would have continued, to at least the extent suffered by the claimant at the time she first consulted her GP about the issue in June 2017. Having regard to the Equality Act 2010 Schedule 1 para 5 and the Guidance at A16, had there been sufficient evidence before me to conclude that the cumulative effects of the impairment (macromastia) on the claimant’s normal day to day activities was substantial, then in the period after the reduction surgery, the claimant would have been a disabled person in terms of the Act with regard to any discrimination because of that past disability. I however accepted the respondent’s representative’s submission that as at the time of her surgery the effect of the impairment on the claimant’s day to day activities was not substantial. There was simply not enough evidence before me to conclude otherwise and the onus of proof is on the claimant. Further procedure[81]The claims under the Equality Act 2010 for discrimination because of the protected characteristic of disability are dismissed because the claimant has not proven that she met the definition of disability in terms of that Act.[82]The claims under the Equality Act 2010 based on the protected characteristic of sex proceed, as do the claims for unfair dismissal, breach of contract and redundancy payment.[83]Date listing letters will now be issued to fix the Final Hearing on these remaining claims. In their responses, parties should provide information on the witnesses they intend to call at the Final Hearing on these claims.[84]Parties’ representatives should now liaise to seek to agree the List of Issues for determination by the Tribunal at this Final Hearing. If either party considers that a further PH for the purpose of case management is necessary prior to this Final Hearing, they should write to the Tribunal setting out their reasons for this request.[85]Case Management Orders will be issued separately in respect of exchange of documents and other preparations for the Final Hearing.[86]It is noted that the previous position was to await the decision on disability status before any participation in Judicial Mediation. Both parties should inform the Tribunal if they wish to now participate in Judicial Mediation.
the hearing
[87]On 13 December 2018 Kevin Staunton (HR Business Partner) sent a letter to the claimant informing her that Tracey McFall had completed her fact finding report. In that letter, the claimant was invited to a Formal Grievance Meeting on 20 December 2018. The fact finding report (JB384- 433) was sent to the claimant with letter dated 17 December2018 (JB283). On 18 December2018 the claimant sent an email to Ma.rtin Garkov (HR Administrator) stating that she had not yet received the fact finding report and therefor asking for the Grievance Meeting to be postponed. The Grievance Meeting was re- arranged to take place on 21 January 2019. On 14 January 2019 the claimant was sent a letter confirming the arrangements for the re-arranged Grievance Meeting.[88]On 25 January 2019 the claimant sent Patrick McKay a note of what she considered to be 59 separate discrepancies in the fact finding report (JB466 - 469). This included the claimant's concern that neither Kevin Kelly or Jayne Drennan (the only members of my working team) were not interviewed; that HR Manager A was not interviewed, despite it being her who Manager K alleged had told her to give the claimant the absence warning and who had chaired the informal meeting prior to absence; that Hazel Carey and Katherine s Wainwright were not asked questions about all concerns which were relevant to them or that there was no recognition that the claimant had had a meeting with Hazel Carey on 8 October 2018, and that Katherine Wainwright had claimed HR were "never given the chance..." to discuss me being unhappy in my post." 10 89. The claimant also raised that what she saw as key emails between herself and HR were missing from the fact finding report: Liz Littler had said that the claimant had told her she was leaving for a job with Renfrewshire Council, and it was the claimant's position that she hadn't at that time been for an inter iew for the (East) Renfre•.vshire Council job and had never spoken ,Nith Liz Littler about it. The claimant said that she had not had a conversation with Liz Littler re her SVQ payment, as was alleged by her.[90]The decision in respect of the claimant's grievance was taken by Patrick McKay (Operations Manager). Minutes were taken of that meeting (JB446 - 455). The claimant was advised of the outcome by letter to her from Patrick McKay of 4 February 2019 (JB456 - 463). None of the claimant's grievance points were upheld. Not all of the concerns raised by the claimant were addressed. On 8 February Patrick McKay wrote to the claimant (JB470- 471) stating that he had read over her document setting out the grievances before making his decision. 2591. The claimant appealed the grievance outcome (JB475 477). The appeal hearing was arranged to take place on 15 February 2019 (JB472-473), then rearranged for 26 February 2019. The claimant did not attend the grievance appeal hearing. The decision at that appeal was taken by Kenneth Crawford (Director of Finance and Resources). His decision was given to the claimant in his letter to her of 15 March 2019 (JB478 - 483). The claimant's appeal was not upheld. Kenneth Crawford set out his responses to the claimant's appeal points (JB484 - 492). That included a list of 31 points in respect of which Kenneth Crawford stated "I do not believe it would serve and benefit to respond in such detail to the points below." . Not all of the concerns raised by the claimant were addressed. Relevant Law - Constructive Dismissal 592. Section 95(1)(c) of the Employment Rights Acts 1996 ('the ERA') sets out that where the employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled to terminate without notice by reason of the employer's conduct, then that employee shall be taken as dismissed by his employer. This is known as constructive dismissal. Case law has developed in respect of constructive dismissal and which is relevant to the Tribunal's determination of a claim under section 95(1)(c). The issues agreed by parties' representatives as being the issues for determination by the Tribunal in respect of claimant's claim of constructive dismissal are identified with reference to the Court of Appeal's decision in Kaur -v- Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978.[93]Following Western Excavating (ECC) Ltd v Sharp [1978] /CR 221, the test on application of section 95 is a contractual one. There must be a breach of contract by the employer. It may be either an actual breach or an anticipatory breach. That breach must be sufficiently important or serious to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. The employee must leave in response to the breach and not for some other, unconnected reason. Following Leeds Dental Team Ltd v Rose [2014] IRLR 8, the test of whether there has been a breach of the implied term of trust and confidence is objective. Following Mahmud v BCC/ SA [1997] /CR 606, and Bournemouth University Higher Education Corp v Buckland [2009] /CR 1042 (EAT), in a claim in which the employee asserts a breach of the implied term of trust and confidence, he must show that the employer had, without reasonable and proper cause, conducted himself in a manner calculated, or likely, to destroy or seriously damage the relationship of trust and confidence between them. Following Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, in a case involving the 'last straw', the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. In such a case, the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? Although the final straw may be relatively insignificant, it must not be utterly trivial.[94]For a successfui ciaim of consiruciive dismissai, ihere musi be a causai iink between the employer's breach and the employee's resignation - i.e. the employee must have resigned because of the employer's breach and not for some other reason, such as an offer of another job. It is a question of fact for the Employment Tribunal to determine what the real reason for the resignation was. To be successful in a constructive dismissal claim, the employee must establish that(i) there was a fundamental breach of contract on the part of the employer(ii) the employer's breach caused the employee to resign; and (iii} the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[95]Where the Tribunal makes a finding of unfair dismissal, it can order reinstatement, or in the alternative award compensation. In this case the claimant seeks compensation. This is made up of a basic award and a compensatory award. The basic award is calculated as set out in the ERA Section 119, with reference to the employee's number of complete years of service with the employer, the gross weekly wage and the appropriate amount with reference to the employee's age. Section 227 sets out the maximum amount of a week's pay to be used in this calculation. In terms of the ERA Section 123(1) the compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Provisions re. the maximum compensatory award are set out in section 124A ERA. Relevant Law - Equality Act 2010[96]The claimant relies on section 13 of the Equality Act 2010. She relies on having been treated less favourably because of her protected characteristic of sex (gender). Section 13 states: "(1) 'A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."[97]The claimant relies on section 26 of the Equality Act 2010 (harassment). The relevant provisions of section 26 are as follows:(1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected 1o 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.....(2) In deciding whether conduct has the purpose or 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. \[98]Sex is listed as one of the relevant protected characteristics in section 26(5). This is with reference to gender.[99]The claimant relies on section 27 of the Equality Act 2010 (victimisation). The relevant provisions of section 27 are as follows:(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 a/legation (whether or not express) that A or another person has contravened this Act. Burden of Proof[100]In respect of the claimant's claims under the Equality Act and in respect of the constrU<;tive dismissal claim, the burden of proof is first on the claimant. In respect of each of those claims, the Tribunal required to consider the strength of all the evidence, presented to it by both parties, and decide whether the claimant has made out her case, on the balance of probabilities. The standard of proof applied in Employment Tribunal cases is the civil standard of proof of 'on the balance of probabilities'. Mr Justice Denning in Miller v Minister of Pensions 1947 2 All ER 372, KBD, explained the civil standard proof in these terms:- 'TThe degree of cogency] is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not.'[101]Se.ction 136 of the Equality Act 2010 applies to any proceedings brought under that Act. If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that contravention occurred' (s136(2)). This statutory position follows the development of case law. The Court of Appeal had provided guidance on the standard of proof in civil cases (including Employment Tribunals) in /gen Ltd (formerly Leeds Careers Guidance) and ors -v- Wong and other cases 2005 ICR 931, CA, revising the guidance in Barton. In approving the Barton principles, the Court of Appeal said: "The statutory amendments clearly require the ET to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld."[102]This relates to what is known as the 'shift' in the burden of proof. The guidance provided by the EAT in Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 ('the Barton Guidelines' referred to in Igen) is as follows: "(1) Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the Applicant who complains of (sex) discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant which is unlawful ... These are referred to below as 'such facts'. (2) If the applicant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the applicant has 25 proved such facts that it is unusual to find direct evidence of sex discrimination.... (4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word is 'could'. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. A.t this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them. (6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw ... from an evasive or equivocal reply to a questionnaire ... (7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account ... This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (8) Where the applicant has proved facts from which inferences could be 15 drawn that the Respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent. (9) It is then for the respondent to prove that he did not commit, or, as the case may be, is not to be treated as having committed that act. (1OJ To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. (11) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question. (12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."[103]The Court of Appeal in Igen concluded that it 'may be helpful for the Barton guidance to include a paragraph stating that the ET must assume no adequate explanation at the first stage'. In that way the Barton guidance has been amended by /gen.[104]The approach in /gen was approved in by Lord Justice ·Mummery in Madarassy v Nomura International pie 2007 /CR 867, CA. Both that case and lgen were approved by the Supreme Court in Hewage v Grampian Health Board 2012 /CR 1054, SC.[105]In Hewage v Grampian Health Board 2013 SC(UKSC) 54, the Supreme Court held that "It is important not to make too much of the role of t e burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other." Codes of Practice[106]In determining the claims under the Equality Act 2010, we had regard to the Equality and Human Rights Commissions Code of Practice on Employment ('the EHRC') (2011).[107]The ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 ('The ACAS Code') sets out guidance on how disciplinary and grievance processes should be handled by employers. When dealing with a disciplinary process decisions should be made based on reasonable investigations which have been carried out. When dealing with a grievance raised by an employee, employers have a duty to seek to resolve issues raised. Submissions[108]Both parties' representatives spoke to their submitted skeleton submissions. These submissions are addressed in the decision section below. Comments on Evidence[109]The claimant's representative raised concern that the Joint Bundle contained medical information on Dean Kerrigan, which was said to be sensitive personal data. The claimant's representative was concerned that this Bundle had then been sent to the witnesses. Dean Kerrigan himself and Jayne Drennan also expressed their concerns at this. We were not taken to these particular documents in evidence and did not read or consider them. The details of Dean Kerrigan's medical information was not relevant to the issues before us.[110]There was little dispute on the primary facts. The respondent did not contest much of the claimant's position in her evidence.[111]We found the claimant to be an entirely credible and reliable witness. Her position in evidence was consistent throughout and consistent with her position in the documentary evidence. We accepted the claimant's representative's submission that the claimant had given her evidence in a way that 'flowed'. The claimant answered questions fully, without hesitation or seeking to filter. She showed visible signs of being upset, both during her evidence and during the evidence of other witnesses. Breaks were taken as considered to be required. She did not attempt to avoid any questions, She was not guarded in her evidence. She made concessions where appropriate, e.g. that she had not raised with Manager M that she believed that Manager M had breached her confidentiality. 25 112. It was significant that in the claimant's witness statement, in respect of the redundancy situation, the claimant said "/ see the service closure as unrelated, however the subsequent treatment does interlink with the lack of support provided, with breach in policy and contract and with discrimination with refusal to honour my due pay".[113]Although the claimant believed that Manager M had breached her confidentiality, we did not make a finding in fact in respect of that. We accepted the respondent's representative's submission that much of what had been discussed between the claimant and Manager M had also been discussed at the appeal meeting. We accepted her submission that given that there was evidence that Wendy Spencer had spoken to Manager K about the situation 'very shortly' after the appeal meeting, that discussion could have prompted Manager K to contact the claimant. On the balance of probabilities, we found that the information to Manager K that the claimant believed it was her who had issued the warning came from Wendy Spencer. The deterioration in the relationship between the claimant and Manager M is likely to have then occurred because the claimant avoided Manager M , because she believed that Manager M had breached her confidentiality, and Manager M did not know that. 15114. Kevin Kelty was a credible and reliable witness. We accepted his account that he believed that there was to be feedback to the claimant following the appeal meeting. We considered it to be significant that his witness statement was written by him some years ago, relatively near to when the events had occurred and when his memory 20115. Jayne Drennan was a very impressive witness. She gave a credible account of events. We considered it to be significant that her witness statement was written by her some years ago, relatively near to when the events had occurred. We considered it to be significant that Jayne Drennan had also had issues with Manager K and Manager M , which had been dealt with by Jayne Drennan's manager and had resulted in an apology to Jayne Drennan from Manager K and Manager M . It was significant that there was no suggestion that those issues where related to Jayne Drennan's sex (gender). That suggested that there. were wider issues with Manager K and Manager M's management style than purely towards the claimant. That supported Katherine Wainwright's position in respect of Manager K's lack of management expertise at the time.[116]Both Jayne Drennan and Keviri Kelly had witnessed deterioration in the relationship between the claimant and both Manager Kand Manager M . Both Jayne Drennan and Kevin Kelly had witnessed Manager M use the word 'negative' about the claimant. Both Jayne Drennan and Kevin Kelly did not find the claimant to be a negative influence on the team and could see no explanation as to why it would have been suggested to the claimant that they found her to be negative. Their evidence was that the team worked very well together, which was important given that they required to work with "some of the most challenging women in the city in respect of their engagement with societal responsibilities."[117]We did not find Katherine Wainwright to be an entirely credible witness. We accepted the claimant's representative's submissions that it was significant that her witness statement was written a considerable time after the events had occurred. We found her to be guarded in her answers to questions. She was not in a position to contradict the claimant's evidence that she had spoken to Manager M and Manager K and that they knew the medical reasons for her surgery before the informal meeting. We did not accept Katherine Wainwright's reliance on there being 'no push and pull' in the email communication between Manager K and HR Manager A re the issue of the warning to the claimant. Katherine Wainwright sought in her evidence to place the ownership of the issue of the warning squarely with Manager K. The terms of the respondent's Absence Policy were not in dispute. It was not in dispute that the number of days the claimant required to be absent from work because of her surgery in January 2018 meant that she hit the trigger which would normally lead to a disciplinary warning being issued under that policy. We accepted that as the manager, Manager K was responsible for making the decision on the issue of the warning. However, she sought advice from HR. Her email correspondence with HR Manager A of HR on 4 April 2018 (JB210) is very significant. HR Manager A failed to inform Manager K of the exclusions / exceptions which could be applied HR should provide guidance to managers on factors which should be taken into consideration prior to issue of a disciplinary warning. On the evidence before us, HR Manager A failed to do that.[118]Wendy Spencer was a credible witness, however, on her own admission, she had limited recollection of events. The events relied on by the claimant occurred in 2018. Wendy Spencer has since retired. We accepted her position that when dealing with the appeal she had sought to resolve the situation. We accepted her position that she had told the claimant at the outset of the disciplinary appeal meeting that the warning would be overturned because she recognised that the claimant was upset. We accepted her position her reliance on the reference to 'closure' in her letter to the claimant confirming the outcome of the appeal. We accepted her position that it would not be her normal practice to say that further steps would be taken, and not to record that.[119]Wendy Spencer had sought to inform the claimant of the outcome at the beginning of the meeting. We accepted that she had hoped that by doing so the additional upset to the claimant of going through the appeal meeting would be minimised. In fact, that meant that all of the concerns raised by the claimant were not addressed, and the focus was merely on the warning being overturned. In treating the overturning of the warning as a full resolution, the respondent failed to recognise that the issues raised by the .claimant were wider than purely the issue of the warning. The issues raised by the claimant in her appeal of the disciplinary warning included:a. Informing the claimant that the time off for her surgery in January 2018 should be taken as annual leave.b. Questioning the legitimacy of her absence in January 2018.c. Informing the claimant that further time off for cosmetic surgery would not be paidd. Starting disciplinary proceedings against the claimant in respect of that absence 8 weeks after the absence.e. Taking the decision to issue a disciplinary warning before hearing from the claimant at the disciplinary hearing.[120]Those issues were not all addressed or resolved by the overturning of the absence warning.[121]It was very significant that the evidence of both Katherine Wainwright and Wendy Spencer was that they were not asked about the position in the s claimant's grievance that she had expected there to be further investigation and feedback to her on the reasons why she had been treated as she was in respect of her absence in January 2018. We were satisfied that had this been raised with Wendy Spencer at the time, she would have taken steps to f00rlh!:1l"'I< tn tho l"'l<:1im<:1nt nn tho ctonc, u,hi,-.h harl hoon ,..,,,,.,.;orl ,.,., ,+ I\Aa..,,.,,..,.,... , ._,,,, .,_ ... ·- _,_ .. 1........ "· VI 1 \,I IV VI.Vt-'" VYIIIVI I 11 u U\J\.,I I VC.11 I IVU vu1.. IVI 11a c;;1 K and HR Manager A had both been spoken to. Wendy Spencer and Katherine Wainwright could, at the stage of the grievance, have spoken to the claimant to clarify what feedback she was seeking and given that to her.[122]We found Patrick McKay to be credible but not an impressive witness. We accepted that he had sought to ensure that the claimant was not treated less favourably because of her sex (gender). We accepted his position that he was conscious of the nature of the grievance being uncomfortable and that he was 'conscious of being male' in these proceedings. He gave no explanation for the failures to address all of the points raised by the claimant in her grievance. He was keen to emphasise his understanding that the claimant had accepted a job with Salvation Army which was essentially the same as the job which the claimant had been offered as suitable alternative employment, but at a higher rate of pay. That belief clearly coloured Patrick McKay's handing of the claimant's grievance.[123]We found Kenneth Crawford to be a credible but not an impressive witness. \/Ve took into account that he made concessions in his response to questions. He accepted that he had not addressed all of the issues raised by the claimant in her appeal. His evidence was of limited relevance to the issues for our determination. The grievance appeal was dealt with after the termination of the claimant's employment. That evidence was not then relevant to the claim of constructive dismissal. It was not relevant to the claim of harassment. Kevin Stanton had had no substantive involvement with the claimant prior to dealing with her grievance appeal. The claimant had not been present at the appeal hearing. It was relevant to the claim of victimisation.[124]There was no explanation why the respondent had not called either HR Manager A or Hazel Carey as witnesses. Hazel Carey was present throughout the FH, instructing the respondent's representative. Given the emails from Hazel Carey which were relied on by the claimant, Hazel Carey's evidence would have been relevant.[125]The central issue was the respondent's failure to recognise that that claimant had been upset by her treatment by Manager K and that the fact that the absence warning itself was overturned did not remedy or address that upset. We did not accept Katherine Wainwright's position that there was no more that could be done except for the warning to be overturned. The claimant made it clear in her appeal letter that her concerns were wider than the issue of the warning. We accepted the evidence of the claimant and Kevin Kelly that they understood from the appeal meeting with Wendy Spencer and Katherine Wainwright that there was to be an investigation as to why events complained about had occurred and that the claimant would receive feedback on that investigation. We also accepted the evidence of Wendy Spencer that she was used to dealing with appeal matters and that it was not her practice to promise something and not set that out in the follow up letter. We considered the use of the word 'closure' in Wendy Spencer's letter to the claimant to be significant. It was not disputed that at the meeting Wendy Spencer had made reference to further steps being taken to understand what had happened. It was then reasonable for the claimant and Kevin Kelly to have concluded from that that feedback to the claimant was expected. We accepted that was reasonable in these circumstances, and in particular taking into account the claimant's state of upset at the appeal meeting. Normally any relevant investigation would take place before the decision to overturn at appeal. We accepted the claimant's position as to why she did not chase for such further information prior to raising her grievance. We accepted the claimant's explanation for not having asked for the feedback earlier. We accepted that the timing of the claimant being put at risk of redundancy, 2 weeks after the appeal outcome, was significant and that in those circumstances it was reasonable for the claimant not for asked for the feedback before she raised her grievance.[126]We considered it to be very significant that the claimant raised within her grievance that she was awaiting a response from Wendy Spencer. We considered it to be very significant that that aspect of her grievance was not addressed by the respondent. It was very significant that neither Katherine Wainwright or Wendy Spencer were questioned about this at the stage of the addressed that could have resolved matters. The misunderstanding which had arisen at the end of the appeal hearing would have become apparent. We accepted Wendy Spencer's position that she was genuinely sorry for what had happened to the claimant and that she was seeking to resolve matters. Had \,Vendy Spencer been asked, and the feedback given to the ciaimant, that could then have brought the closure which was sought.[127]We made findings in fact in respect of the allegations which the claimant relied upon, as follows:a. HR questioned and called the claimant into a meeting about the legitimacy of her illnessb. the claimant was told that HR were disputing whether she would be paid or not while off sickc. the claimant was asked to take annual leave for her absence for surgeryd. the claimant was told that HR had advised that if she had any further unrelated surgeries she would not get paide. the claimant was told she must attend Occupational Health and then the appointment was cancelled.f. the claimant's treatment by the respondent was not within the respondent's Absence Policyg. the decision to give the claimant a First Written Absence Warning was pre-determined before her Formal Absence Meetingh. The claimant believed that Wendy Spencer and Katherine Wainwright had advised that they would revert to the her following an investigationi. There was no feedback to the claimant following the steps taken by Wendy Spencer and Katherine Wainwright after the appeal meeting when the warning was overturnedj. the claimant was not advised of ownership of who gave the warningk. Manager K sent a text to the Claimant saying "Despite what you think, it wasn't me who gave you the warning" and then later alleged that it was HR Manager A who had issued the warning to the claimant. /. Manager K said the Claimant was reacting Just because she was an emotional person' m. Manager M stated that the claimant had a "bad attitude" and was being "negative" n. the claimant received no supervision from 18th June 2018 to 30th August 2018 o. the respondent's Redundancy Policy was breached in respect of the trial period of the job offered to the claimant as suitable alternative p. the claimant was not paid redundancy pay which she alleged was due q. the grievance process followed by the Respondent did not address all of the points raised by the claimant[128]We addressed'the issues which fell for our determination. Constructive Dismissal[129]We did not accept the respondent's representative's position that the claimant resigned on 9 October 2018. tThe terms of the claimant's email of 9 October 2018 (JB326 - 327). email and the terms of the subsequent email correspondence between the claimant and Hazel Carey and Katherine Wainwright are set out in the findings in fact. Contractually, the claimant's position in her email of 9 October is that she will leave on the basis that she receives a redundancy payment. The claimant's position in cross examination \AJas "/ never handed in my resignation. I never resigned. ! didn't resign until 30 October, when I did with immediate effect". That resignation was in the claimant's email to Kathrine Wainwright of 30 October 2018 (JB507). That resignation followed the claimant's email to Katherine Wainwright of 29 October 2018 (JB506), where the claimant again asked whether she would be receiving her redundancy pay. In that email the claimant also stated that she "... simply no longer [had] trust and confidence in the organisation moving forward. 11 The claimant's email to Katherine Wainwright of 30 October 2018 stated " as you have stated the grievance process will not solve things prior to the 31st, ! would like to formally resign with immediate effect. 11 We accepted that by raising her grievances the claimant had given the respondent the opportunity to resolve matters. We did not accept the respondent's representative's position that the grievance had been raised by the claimant after her resignation. Even if that were the case, the grievances would have been raised before the effective date of termination of employment (30 October 2018). 25 130. In the claimant's email of 8 October 2018 (JB326-327), the claimant first set out her concerns in respect of the job offered to her as suitable alternative employment having not yet commenced. The statutory right to a trial period in a redundancy situation cannot be contracted out of. The ERA provides that the trial period commences immediately after the original position is redundant. The respondent failed to recognise that It v,as Patrick v1cKay's evidence that he thought that the claimant's trial period had 'not yet started' but at no time was that position communicated to the claimant. We accepted that by placing the claimant in various interim jobs, the respondent was seeking to retain the claimant as an employee. In those circumstances communication with the claimant is very important. There was no recognition to the claimant that her trial period had not in fact started. On the contrary, the claimant received communication informing her that her trial period had concluded (JB324 email from Hazel Carey of 26 September 2018). She had no supervision meetings, which could have provided the opportunity for discussion and better communication. The claimant's concern that she could not determine whether the job was suitable alternative employment because she had not yet started the job was a legitimate one.[131]The reasons set out by the claimant in that email of 9 October 2018 (JB326- 327) were not then addressed by the respondent. We accepted the claimant's reliance on her treatment in respect of her absence ir:, January 2018, and the subsequent deterioration in relationships with her managers, being raised in that grievance, and being a contributing factor to her decision to resign. The correspondence subsequent to the claimant's email of 8 October 2018 is significant because it sh9ws that the respondent had an opportunity to resolve matters before the termination date of 31 October 2018. There was a failure to recognise that the trial period for the position offered to the claimant as suitable alternative employment could not have begun, because that position was not yet in place. On the evidence, the fact that the respondent had received a request for a refence for the claimant, and believed that the claimant had accepted a Housing job which was essentially the same as that offered to her as suitable alternative was significant. Patrick McKay's evidence was that it was understood that the claimant had accepted a housing job which was in effect the same as the position she was offered as suitable alternative employment, but with a higher rate of pay. It was clear from his evidence that that misunderstanding that the claimant had accepted· that Housing job clearly coloured the respondent's subsequent dealings with the claimant. That was the focus in the subsequent correspondence with the claimant. That is not a relevant factor to be taken into account when considering whether a position offered is suitable alternative employment.[132]It was significant that the claimant was told that the "leaving for a new job is not a redundancy situation or would attract redundancy pay."(email from Hazel Carey JB325). That statement was factually and legally inaccurate. It shows a failure to understand the circumstances which lead to the right to a statutory redundancy payment. Entitlement to a statutory redundancy payment is on application of the ERA. The ERA contains provisions in respect of the statutory trial period for alternative employment offered as an alternative to redundancy. There is a general proviso that the new contract must take effect not more than four weeks after the old one ends (ERA s138(1) and s 146(2). Parties can enter into a contractual agreement for a trial period but cannot waive an employee's entitlement to a statutory trial period (s203), because any provision of an agreement or contract seeking to waive or exclude an employee's rights under the ERA will be void. There is no ban on an employee look for alternative employment while they are at risk of redundancy, or to accept any such offer they consider to be suitable. As at the time of that email from Hazel Carey, the claimant had not accepted any alternative employment: a reference had been requested from the respondent and any offer was conditional on that reference. In any event, acceptance of alternative employment does not void an employee's entitlement to a statutory redundancy payment. It was the claimant's position that she could not yet determine whether the position offered to her as suitable alternative employment ('SAE') was a suitable alternative. The respondent believed that the position was suitable alternative employment. Although information was given on the position, from which the respondent's position was that the claimant could reasonably concluded that the job was suitable alternative employment, that position does not recognise the statutory right to a trial period, when the individual is actually working in (trying) the alternative position.[133]In circumstances where the job offered as suitable alternative employment had not commenced in the trial period, it was not reasonable for the respondent to insist on the claimant not being entitled to statutory redundancy payment because it was considered that she had been offered suitable alternative employment. Had the trial period taken effect, that may have been a statutory reason for non payment of redundancy. We did not require to consider whether or not the position offered was suitable alternative employment. The redundancy policy provides at section 5 that an employee may decide that the position they have been offered is not suitable. We did not accept the respondent's representative's reliance on clause 5.2 of the Redundancy Policy. The evidence does not support that being in the minds of the respondent at the time. On the evidence before us, in particular the evidence of Katherine Wainwright and Patrick McKay in cross examination, the reason the claimant was not paid redundancy pay was because it was believed ·that she had been offered a position which was suitable alternative employment and that she had accepted a job with another employer which was in essence the same as the position which had been offered to her as suitable alternative employment.[134]In all the circumstances, we concluded that it was not reasonable for the respondent to fail to properly communicate with the claimant in respect of the start date of the trial period. It was not reasonable for them to fail to inform the claimant that the trial period for the suitable alternative employment had not yet commenced. It was not reasonable for the respondent to determine that the claimant was not entitled to receive statutory redundancy pay because she had applied for external alternative employment.[135]As stated above, we did not accept the respondent's position that the claimant had resigned on 8 October 2018. The contractual position in the claimant's email of 8 October 2018 is that the claimant offered to leave on payment to her of redundancy pay. The claimant specifically set out in various emails as set out in the findings in fact that she was not resigning. She wished to take redundancy pay, in circumstances where the service she worked on had come to an end and her trial period had not started, although the respondent's position to her was that it had started and could be continued. The respondent's miscommunication on this is important. The trial period in the post offered to the claimant as suitable alternative employment did not start. The respondent refused to pay her redundancy. The claimant raised grievanc s about that situation and also about what she believed were ongoing failures in respect of the treatment of her around her absence on January 2018. The claimant's grievances were not addressed timeously. The claimant was informed that those grievances would not be dealt with by 31 October. The respondent issued the claimant her P45. In all these s circumstances, by these acts and failures, the respondent, without reasonable and proper cause, conducted themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between them and the claimant. The respondent acted in material breach of the implied term of trust and confidence. The claimant resigned in response to the respondent's failure to pay her redundancy pay in these circumstances and failure to deal with her grievances prior to 31 October. The respondent's breach of contract caused ihe claimant to resign. The claimant did not affirm the contract by any delay in resigning. The claimant had offered to leave on payment of redundancy pay. The respondent refused to pay her redundancy pay. The claimant then sought alternative employment, as was appropriate for her to do to secure income. At the same .time, the claimant was seeking to resolve matters. She raised a formal grievance. It was the respondents' position that her grievances wou!d not resolve matters by 31 October which caused the claimant to resign, with immediate effect. In consideration of Omi/aju v Waltham Forest London Borough Councii 2005 ICR 481, CA, the act constituting the last straw in the context of the claimant's decision to resign was the respondent's position that the claimant's grievances would not resolve matters prior to 31 October. We accepted Katherine Wainwright's position in evidence that the reason for the claimant's resignation was not purely because of the redundancy situation.[136]For these reasons we concluded that the respondent acted in fundamental breach of the term of trust and confidence and the claimant was entitled to resign. The claimant resigned because of the respondent's unlawful conduct. That was an unfair dismissal in terms of the Employment Rights Act 1996 section 95(1)(c) and 136(1)(c). The claimant's (constructive) unfair dismissal claim is successful. The claimant is entitled to an unfair dismissal award and compensatory award. Jurisdiction[137]It is very significant to the jurisdiction issue that the claimant raised in her grievance what she believed to be outstanding matters in respect of the way in which she was treated around herabsence in January 2018, and that the respondent failed ,to deal with that during the course of the claimant's employment with them. We accepted the claimant's position that she believed that Wendy Spencer was to revert to her following investigation steps taken after the appeal meeting. That was the claimant's position throughout the contemporaneous documentary evidence. That was also Kevin Kelly's understanding. We accepted the claimant's explanation that she did not ask for that feedback before raising it in her grievance because she had been informed of the redundancy situation two week after the appeal hearing.[138]In terms of section 123 of the Equality Act 2010, we had to consider whether there was conduct extending over a period. We accepted that prior to the grievance being raised by the claimant, the respondent considered that the appeal and overturning of the warning had brought matters in respect of that to a close. However, the claimant clearly raised that as part of her grievance. It was clear from that grievance that the claimant believed that there were outstanding actions. At both the appeal stage and in her grievance, the claimant specifically stated that she felt she had been 'discriminated against'. As of the time of their receipt of that grievance, the respondent then knew or ought to have known that the claimant was expecting there to have been an investigation and further feedback to her. The claimant also raised in her grievance her issues in respect of the respondent's decision that the claimant was not entitled to a redundancy payment. .139. We accepted the claimant's representative's position that because the issues were raised in the grievance, and not dealt with, on application of section 123 there was a continuing course of conduct. For that reason, we concluded that we had jurisdiction to consider the claims made under'the Equality Act 2010. 30140. We have jurisdiction to determine claims based on events during the course of the claimant's employment with the respondent. The effective date of termination of that employment was 30 October 2018. The grievance was raised by the claimant prior to the effective date of termination. Equality Act 2010[141]In her claims under the Equality Act 2010, the claimant relied on her protected characteristic of sex (her gender). She relied on being a woman who had had surgery of the specific nature carried out. Although the respondent's representative's position was that the surgery which the claimant had in January 2018 was 'gender specific', we did riot accept that position. That surgery could be carried out on males as well as females: the tissue which was removed is present in both genders. Both genders can have surgery to remove ihis iissue. We did noi ihen accept the claimant's representative's position that there was sex discrimination because of the nature of the surgery itself. There was no evidence of the respondent's treatment of any man who had had that surgery carried out. 15 s13 - Equality Act[142]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the claimant's less favoumble treatment. We considered the facts and whether discrimination was established on those facts. On application of the guidance of Lord Nicholls in Shamoon v RUC 2003 /CR 337, we took the view that this was a case where we should focus on the single primary question of: did the complainant, because of the protected characteristic, receive less favourable treatment than others. We did not consider that Dean Kerrigan was an appropriate comparator. Dean Kerrigan had had a number of absences prior to his absence for elective surgery. The respondent did not suspect that Dean Kerrigan's elective surgery was not on medical grounds. The appropriate comparator would have been a male who required to be absent from work because of elective surgery which the respondent suspected was not on clinical medical grounds. Rather than focus on ho\AJ a comparator might have been treated, if the claimant were able to show that the protected characteristic had a causative effect on the way that she was treated then it would be inevitably adverse and amount to less favourable treatment than comparators would have received. Equally, if it was shown that the protected characteristic played no part in the treatment, then the claimant cannot succeed and there is no need to construct a comparator. 5 143. We first considered the treatment of the claimant prior to the disciplinary appeal. The issue before us was not that the claimant had been given a warning under the absence policy. The claimant accepted that that had been overturned and did not rely on that aspect in her claim before us. What we first required to consider was their treatment of the claimant in i.e. the claimant being questioned about the legitimacy of her surgery, being told to take annual leave for the surgery, being told that she had to attend an appointment with Occupational Health, and that appointment then being cancelled, and the claimant being told that she would be issued with a warning prior to the Absence Policy hearing, the decision having been made prior to that hearing. We made findings in fact that those events occurred.[144]We considered the evidence before us to establish what was the reason for this treatment. On the evidence before us, we concluded that Manager K's lack of management expertise at the time was a significant factor in these events occurring. Manager K's lack of management experience explains her having the meeting with the claimant where she informed her that it was HR Manager A's decision to issue the claimant with a warning. Jayne Drennan's evidence that she also had issues with Manager M and Manager K was significant. There was no suggestion from Jayne Drennan that her treatment by them was because of her gender. Katherine Wainwright's evidence in her witness statement about Manager K was that "She was well respected professionally and with partners. I recollect thinking that she found conflict difficult and that she was on a journey around professional development around operating at a more senior level but that is not unusual and is subjective and very retrospective". We considered it to be significant that the claimant's position in her witness statement was that Manager K had 'urged me to consider my right of appeal'. We considered that that position was inconsistent with a finding that Manager K was treating the claimant less favourably because of her gender. We considered that that evidence was consistent with Kristen Abercrombie's lack of management expertise at the time and her believing that the advice from HR was that the claimant should be issued with a warning under the absence policy. On all the evidence before us, that was Manager K's consistent position throughout. The emails between Manager Kand HR Manager A on 4 April 2018 (JB210) were significant. That email correspondence supported Manager K having the understanding that HR's position was that a formal warning should be issued under the Absence Policy when the trigger points are reached. 10 145. Katherine Wainwright sought in her evidence to place the ownership of the issue of the warning squarely with Manager K. The terms of the respondent's Absence Policy were not in dispute. It was not in dispute that the number of days the claimant required to be absent from work because of her surgery in January' 2018 meant that she hit the trigger which would normally lead to a disciplinary warning being issued under that policy. We accepted that as the manager, Manager K was responsible for making the decision on the issue of the warning. However, she sought advice from HR. Her email correspondence with HR Manager A of HR on 4 April 2018 is significant (JB210). HR Manager A failed to inform Manager K of the exclusions / exceptions which could be applied. She also failed to refer Manager K to the Absence Policy and the requirement for discussion with the claimant at the meeting before the decision is made. HR should provide guidance to managers on factors which should be taken into consideration prior to issue of a disciplinary warning. On the evidence before us, HR Manager A failed to do that. We noted Katherine Wainwright's position in her witness statement that: "<Manager K> felt that she had been strongly guided to issue a warning' and "To my recollection, HR Manager A indicated they'd had a robust conversation about consistent absence management and the issuing of warnings generally and with another case that had been flagged in the monthly absence monitoring cycle as <Manager K> struggled with this - but that the claimant's case was not discussed in any depth in relation to a warning."[146]We therefore did not accept Katherine Wainwright's reliance on there being 'no push and pull' in the email communication between Manager K and HR Manager A re the issue of the warning to the claimant. That is inconsistent with the position in Katherine Wainwright's statement that HR Manager A had said there had been a 'robust discussion'.[147]For these reasons, we concluded that Manager K had believed that HR had told her that the claimant should be issued with an absence warning because she had hit the trigger.[148]We considered it to be significant that in her witness statement Katherine Wainwright's evidence was "There was discussion as to whether elective or cosmetic procedures would be paid and how it would be treated - particularly in some cases if not certified by an NHS doctor and done privately." Her evidence was that there was discussion that 'this was an interesting question'. Katherine Wainwright's position was that the claimant was called into an informal meeting because 'we didn't know the position'. When it was put to Katherine Wainwright in cross examination that Manager K and Manager M did know the reasons for the claimant's surgery, prior to that informal meeting, Katherine Wainwright's evidence was 'I didn't know that level of detail'. It was significant that in her witness statement Katherine Wainwright's position was: "There was discussion as to whether elective or cosmetic procedures would be paid and how it would be treated- particularly in some cases if not certified by an NHS doctor and done privately. The fit note simply states 'surgery' Qn it (page 199)." 25 149. From that evidence we concluded that because of the nature of the claimant's surgery there was a belief within the respondent's HR department at the time that the claimant's surgery in January 2018 was for cosmetic reasons. That may have been because of Katherine Wainwright's failure to inform HR Manager A of what the claimant had told her about the surgery. The claimant did not have cosmetic surgery. This evidence was also significant in showing the respondent's treatment of male employee who they believed required to be absent following cosmetic surgery.[150]Although not relied on in respect of being a comparator, we did consider the evidence of Katherine Wainwright in respect of treatment of a male employee who had been absent following a cosmetic surgery procedure to be significant. Katherine Wainwright's position in her witness statement re this was: "I had looked at internal procedures around elective I cosmetic surgery before the appeal as I was interested and so was aware that the last person with a cosmetic procedure in similar circumstances was male (initials redacted here) (page 231 240) In that situation a warning had been issued and not all the absence was paid (page 241-250). This is the comparator I was aware of and I think it evidences that the claimant was not treated any differently or worse than a male comparator in a parallel situation. I believe this is a reasonable and good comparator as both were having cosmetic surgery. Both had surgery that requires a substantial recovery period. Both were provided with warnings based on absences relating the cosmetic surgical procedure from the first absence meeting. Both invoived additionai communication outwith and beyond the formal meetings, occupational health support and were overseen by a manager and supported by an HR Business Partner. The male comparator actually was disadvantaged more that the claimant as he was not paid for all his absence. I was satisfied that there was·no direct or indirect discrimination."[151]The fact that Katherine Wainwright had looked at this at the time of the 2s claimant's appeal and considered that male employee to be in similar circumstances as the claimant shows that at that time she believed that the claimant's procedure was for cosmetic reasons rather than being on medical (clinical) grounds. Katherine Wainwright sought to retract from that position under cross examination but we did not find her to be credible in that regard. She sought to set out what she understood as the meaning of 'elective surgery' and referred to this as having an 'element of choice'. This evidence was significant in our conclusion that the claimant's sex (gender) was not a significant influence in the respondent's belief (or at least suspicion) that the claimant's surgery was for cosmetic reasons. We found that it was the specific nature of the surgery which caused tt:ie respondent to suspect that it may be for cosm tic, rather than medical reasons. A man could have that same surgery: a man could have the same type of tissue removed as the claimant had removed. Surgery on a male for that reason may be for cosmetic reasons or may be on medical grounds. A woman could have that tissue removed for cosmetic reasons or on medical grounds. The claimant had the tissue removed on medical grounds. 10 152. We accepted that the Absence Policy allows for an informal meeting to take place and that this could take place prior to the issue of the warning. We accepted Katherine Wainwright's uncontested evidence that the male employee who had had cosmetic surgery had been invited to an informal meeting. We accepted her uncontested evidence that that employee had not been paid for all his absence following that surgery. On that basis, the reason for the claimant's surgery may have had an implication on her payments during her absence. Taking into account Katherine Wainwright's evidence on the discussions within the HR department re treatment of absence following cosmetic surgery, we concluded that the reason for the informal meeting with the claimant was to discuss the reasons for the claimant's absence, because it was believed that her surgery may be for cosmetic reasons. On the evidence before us, we concluded that Manager K's lack of management expertise at the time was the reason why she had failed to properly inform HR of the discussion she had had with the claimant in respect of the reasons for her surgery. On the evidence before us, we concluded that Manager K's lack of management expertise at the time, and her belief that it was HR's position that a warning should be issued, in circumstances where HR Manager A had failed to give her guidance on the exceptions which may be applied and the importance of prior discussion with the claimant were the reasons why Manager K informed the claimant before the meeting that she was to be issued with a warning. We accepted that the claimant was not given the opportunity to state her position at this meeting, before the decision was made. We considered the email correspondence between Manager K and HR Manager A of 4 April 2018 to be significant and to be consistent with the claimant's position that the decision had been made prior to the meeting. That does not mean that we considered the respondent's actions to be appropriate or reasonable, but that was not the test to be applied here. We required to consider, on the evidence before us, what the reason for the treatment was.[153]We considered the evidence on the delays in the claimant being called to the meeting to discuss the absence and in the decision ietter being issued to the claimant. In Katherine Wainwright's witness statement she said "...importantly the length of time that the letter took to be issued to give the - warning was significantly long and this added to the decision making to overturn the appeal." and "Certainly, the delay in sending the absence warning letter was something that had gone wrong and it was important to address it with the team." We considered it to be significant that in her statement she said "\/Ve reflected on communication and considered whether any further checks or balances should be added. Following the appeal meeting, the administration of outcome letters was reviewed to ensure none were substantially delayed." On that evidence, we concluded that the reason for the delays was a lack of checks and administration failures.[154]On all the evidence before us, for the above reasons, we concluded that the reasons for the treatment of the claimant. in respect of her absence in January 2018 was because:a. within the HR respondent's department at the time it was suspected that the claimant's surgery was for cosmetic reasons and was not on medical grounds, andb. HR Manager A failed to make it clear to Manager K that there were exceptions which could be applied in the claimant's situation (which would avoid issue of an absence warning, although the trigger under the policy had been reached), andc. Manager K's lack of management experience at the time and her failure to recognise that as the manager the responsibility for issue of a warning lay with her.[155]We could not properly conclude from the facts that the claimant's gender had was the reason for the treatment. An inference of discrimination on the grounds of the claimant's protected characteristic of sex (gender) could not then properly be drawn. 5 156. The claimant sought to rely on Dean Kerrigan as a direct comparator in respect of that treatment. The evidence was that that Dean Kerrigan had also been issued a warning under the Absence Policy because he hit the tigger. It was not disputed that Dean Kerrigan had complex and long-term health conditions which had caused him to have a number of absences from work. There was no evidence of any consideration of the exceptions to him. Dean Kerrigan's position was that he agreed that it was appropriate that he be issued with the warning, because of the level of his absences because of his ill health. We appreciated that the claimant sought to rely on Dean Kerrigan as a comparator in respect of the wider treatment around her absence, as set out above. We found that the reasons for that treatment were not because of the claimant's sex. We did not accept that Dean Kerrigan was an appropriate comparator. He did not have a one off long term absence following elective• surgery. The respondent did not suspect that his elective surgery was purely for cosmetic reasons (although there was a cosmetic element to that surgery). We considered that the appropriate comparator was a male employee of the respondent who required time off for elective surgery where the specific nature of the surgery caused the respondent to suspect that it may be for purely cosmetic reasons, and not for medical reasons. Dean Kerrigan was not an appropriate comparator because there were material differences between him and the claimant. The specific nature of the elective surgery which he had did not cause the respondent to suspect that it was purely for cosmetic rather than medical reasons.[157]The claimant's representative's relied on /gen. Following /gen, it is for the Applicant who complains of (sex) discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the reason for the less favourable treatment was the claimant's protected characteristic. The first stage is for consideration of the evidence. In the evidence before us we found, on the balance of probabilities, that the reason for the treatment of the claimant was not the claimant's protected characteristic of sex. The claimant therefore failed at that stage of the application of the guidelines. The claimant did not prove facts from which inferences could be drawn that the respondent treated the applicant less favourably on the grounds of sex. The burden of proof did not shift to the respondent.[158]We separately considered whether the claimant had been treated less favourably by the Respondents because of her protected characteristic of sex in respect of their dealings in respect of the grievance submitted by the claimant. It was a matter of fact that the respondent did not deal with some aspects of the claimant's grievance. Both the grievance decision and the appeal decision 'cherry picked' what issues raised by the claimant were addressed. We considered the evidence and drnw conclusions on the reason(s) for that treatment.[159]It was clear from the evidence of all of the respondent's witnesses that they failed to understand that the claimant had concerns which were wider that the issue of the warning to her. They therefore all failed to deal with the claimant's wider concerns. This lack of undeiStanding was apparent right through the internal proceedings and these Tribunal proceedings. All failed to realise that the claimant was concerned about:a. Having been informed that the time off for her surgery in January 2018 should be taken as annual leave.b. Having the legitimacy of her absence in January 2018 questioned.c. Being informing that further time off for cosmetic surgery would not be paidd. The delay in the initiation of the process which led to her being issued \'Vith a 'l arning.e. Being informed prior to the hearing that a warning was to be issued to her.[160]We accepted that the claimant was affected by the failure to address these points. We accepted Wendy Spencer's position that she had focused on the outcome of the appeal being that the issue of the warning was overturned. We accepted that that focus was the reason for her failure to revert to the claimant in respect of the reasons why the wider treatment had occurred. The claimant's sex was not part of that reason. We could not then properly draw an inference that the claimant's sex (gender) was a significant influence in the failure to revert to the claimant following further investigation after the appeal.[161]We considered the evidence on the reason for the way in which the respondent dealt with the claimant's grievance. We considered the timing of the reference request for the claimant to have been v<;3ry significant. Prior to dealing with the claimant's grievance, Patrick McKay was of the understanding that the claimant had obtained a job with another employer which he understood to be the same as the job with the respondent which the claimant had turned down as not being suitable alternative employment. That was clearly significant to Patrick McKay. He emphasised in his evidence under cross examination that he believed that the claimant had accepted a job which was the same as what had been offered to her as suitable alternative employment. Although the grievance was raised by the claimant during the course of her employment with the claimant, it was after the respondent's receipt of a reference request for her, which is what caused it to be believed that the claimant had accepted that job. The claimant had not accepted that job at the time the reference request was made. She did not accept the housing job at all. On the evidence before us we concluded that Patrick McKay's belief that the claimant was leaving to take up a job with another employer which was in essence the same as the job the claimant considered not to be suitable alternative employment for her was significant. That did not however explain why he failed to deal with all of the points in the claimant's grievance. The respondent did not offer any explanation for that failure. We accepted the claimant's representative's reliance on Patrick McKay merely stating "ok" when it was put to him in cross examination that he had not dealt with all aspects of the claimant's grievance. The guidance in /gen is:- "The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld." 11=:') ,L\lthough the respondent did not provide an explanation for that failure, the IV£... claimant did not prove facts from which we could conclude that that failure was because of the claimant's sex. That position was not put to Patrick McKay. Significantly, the claimant did not claim in her appeal of the grievance decision that the failure to dea! with a!! of the aspects of the claimant's grievance was because of her sex. On the evidence before us we could not find, in the absence of an explanation, that the failure to deal with all of the claimant's grievance points, either at the first stage of the grievance or at the appeal was because of the claimant's sex. On application of the Barton Guidelines, a.mended by lgen, the burden of proof did not sh_ift to the respondent in respect of those failures. On the primary facts, in considering the section 13 claim we could not properly draw an inference that the claimant's sex was the reason for the failures to deal with all of the claimant's points in her grievance.[163]We considered the evidence before us on the reason(s) for the respondent's treatment of the claimant in respect of the trial period. We accepted the respondent's position that steps had been taken to bridge the gap in the claimant's employment caused by the unusually quick ending of the finding for the Women's Bail Service. The reason for the trial period not having started was because the full funding for that service was not yet in place. The respondent placed the claimant to work providing cover in various services sought to retain the claimant as an employee. The claimant's sex was not the reason for that treatment.[164]We considered the evidence before us on the reason(s) why the claimant wap not paid redundancy pay. On the evidence before us the reason the claimant was not paid redundancy pay was because it was believed that she was being offered suitable alternative employment and because it was believed that she had secured another job, with a different employer which was very similar to the job the claimant had been offered as suitable alternative employment. The claimant's sex was not part of that reason. As part of our considerations on the evidence in respect of the reason for the non payment of redundancy pay, we took into account the claimant's evidence that Hazel Carey having said to her that redundancy was 'never an option'for her. The respondent did not lead evidence' to rebut the claimant's position that that had been said to her. No explanation was presented by the respondent for Hazel Carey having said that. The claimant had raised that issue in her grievance, and it was not investigated or addressed. Hazel Carey was present throughout the hearing before us. No explanation was offered to us as to why she did not give evidence. We heard evidence that Kevin Kelly had received a payment on termination of employment. Katherine Wainwright's evidence was that she believed that that payment had been made separate to the redundancy situation and because of Kevin Kelly's 'personal and health circumstances'. There was no explanation offered by the respondent as to why the claimant's personal and health circumstances did not lead to a termination payment to her. We accepted Katherine Wainwright's position that in organisations in the third sector, such as the claimant, further considerations need to be given before a termination is made. That did not explain why in the claimant's health and personal circumstances it was not considered to be appropriate for her to receive a termination payment.[165]Although we considered that evidence, it did not detract from our conclusion that the reason for the non payment of redundancy pay to the claimant was that it was believed that because it was believed that she was being offered suitable alternative employment and because it was believed that she had secured another job, with a different employer which wa very similar to the job the claimant had been offered as suitable alternative employment. The claimant claimed discrimination in respect of the failure to pay her redundancy pay, not in the failure to make her a termination payment. The claimant did not rely on Kevin Kelly as a comparator. On the basis of all of that evidence, on the balance of probabilities we found that the reason for the claimant was as set out above. That reason was not because of the claimant's sex. The burden of proof did not shift to the respondent and it was not appropriate to draw any inference of discrimination in respect of that failure. The evidence on the reason for non payment of redundancy was clear.[166]The claimant's claims under section 13 of the Equality Act 2010 do not succeed because, on a!! the evidence before us, we found, on the balance of probabilities that the reasons for the claimant's treatment did not include the claimant's gender. s26 - Equality Act (Harassment)[167]The conduct relied upon by the claimant in her claim under section 26 was unwanted and did have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The reasons for the treatment relied on in the claim under section 13 were relevant to what was relied in under section 26. The claimant's claim under section 26 did not succeed because, for the reasons set out above in respect of the section 13 claim, we did not find that the unwanted conduct was related to the claimant's protected characteristic of sex (gender).[168]We considered the findings in fact that had been made in respect of the conduct relied upon as being harassment in terms of section 26 which was not relied on in the section 13 claim. We did not make a finding in fact that Manager M had breached the claimant's confidentiality. We applied the balance of probabilities to the evidence before us. We accepted the respondent's representative's submission that the fact that Manager K had sent a text to the claimant could have been explained by Wendy Spencer having spoken to Manager K about what the claimant had said at the appeal hearing. v anager K's lack of management experience at the time explains her having had a meeting with the claimant informing the claimant that it had been HR Manager A decision to issue the claimant with a waring for her absence. We concluded that Manager K's lack of management expertise was the reason why she asked the claimant if she was' Just an emotional person.".[169]We accepted Wendy Spencer's evidence that the redundancy situation would have impacted on the frequency of the supervision meetings. We did not accept that as a reasonable explanation for that failure, but we did accept that that was the reason. We could not then properly draw an inference of discrimination could properly be drawn.[170]It was significant that Jayne Drennan had also complained about the management style of Manager M and Manager K and that there was no suggestion from her that their behaviour towards her was because of her sex (gender). We found that the reason for Manager M having called the claimant negative and on several occasions told the claimant that she had a bad attitude, was Manager M 's poor management style at the time and because the claimant avoided Manager M after believing that Manager M breached her confidentiality, but did not explain that to Manager M . We considered it to be significant that the claimant admitted in her evidence that following her believing that Manager M had breached her confidentiality, she did not speak to her about that belief or how up et she was. We considered that to be understandable and the reason why, on the claimant's own evidence she then kept away from Manager M . We considered that to be the reason why there was the deterioration in the relationship between the claimant and Manager M , including Manager M then referring to the claimant as 'negative' and as having a 'bad attitude'. The evidence on her lack of management skills at the time also explained Manager K asking the claimant that if she was just an emotional person. We did not find on the evidence before us that the reason for that treatment was related to the claimant's gender.[171]The claimant relied upon alleged breach of the redundancy policy in her claim under section 26. We accepted that the redundancy policy had been breached. We considered all the evidence before us and made findings on the reason for that breach. As set out above, we concluded that the trial period did not start because the funding for that position was not in place. We found that the claimant was placed on various services because the respondent had wanted to retain the claimant as an employee. The reasons for those breaches were not related to the claimant's sex.[172]We accepted Patrick McKay's position that in dealing with the claimant's grievance he was conscious of the nature of the claimant's surgery being sensitive and that he was conscious of his own gender. We accepted his position that he sought to deai with the grievance as sensitiveiy as possibie for those reasons. We found that the reason the claimant was not paid redundancy pay was because it was believed that the claimant was being offered suitable alternative employment and that the claimant had accepted a job with another employer, at a higher rate of pay, which was the same as the job she was refusing to accept as a suitable alternative to redundancy. On consideration of the section 26 claim, the reason for the treatment complained of was not mlated to the claimant's sex. 15 173. The claimant also relied in her claim under section 26 on Hazel Carey having said to her that redundancy was 'never an option'for her. No explanation was presented by the respondent for Hazel Carey having said that. The claimant had raised that issue in her grievance, and it was not investigated or addressed. Hazel Carey was present thmughout the hearing before us. No explanation was offered as to why she did not give evidence. The respondent did not lead evidence to rebut the claimant's position that that had been said to her. We accepted the claimant's evidence that Hazel Carey had said that to her. We considered the evidence before us to establish whether that comment was related to the claimant's sex. The terms of Hazel Carey's emails to the claimant were significant. It is clear from those emails that Hazel Carey's position to the claimant was that she was being offered suitable alternative employment. It was significant that the evidence was that the respondent had wanted to retain the claimant as an employee. That is why they had sought to bridge the gap and place the claimant in various services '"'" fnllnu,inn fh,-, \/1/nmon'c- R<>il C:::on,ir-o r-nminn tn !:ln onrl \A/hon f11nrlinn f"Q!::IC:Orl .JV VIV'-"• -••-11• --------------• !V!IVYY!!! t!!V YYVIIIVII L.,l(,,411 "-,..1\,,.,I V'-#111111 L\J "'""'' """'''-' vw11. ......,11 It is in those circumstances that the comment must be regarded. For those reasons, we concluded on the evidence before us that the reason Hazel Carey had said to the claimant that redundancy was 'never an option' for her was because the respondent wanted to retain the claimant as an employee. That reason was not related to the claimant's sex.[174]The claimant's claims under section 26 of the Equality Act 2010 do not succeed because we did not find that the conduct relied on was related to the claimant's protected characteristic of sex (gender). On the evidence before us we concluded that the reasons for the treatment were reasons which were not related to the claimant's gender. s27 - Equality Act (Victimisation) 10 175. The claimant referred to 'discrimination' in both her appeal of the warning issued to her under the Absence Policy and in her grievance. In her appeal re the warning the claimant had stated: "Due to the nature of my surgery I feel that I was discriminated against as I was advised that HR had discussions with my line manager regarding cosmetic surgery and suggestions that I may not be paid for my recovery period. "[176]The claimant does not allege at that time that she has been discriminated against on the grounds of one of the protected characteristics set out in the Equality Act 2010. She claims that she has been discriminated against 'due to the nature of [her] surgery." F.or the reasons set out above, we did not accept that the nature of that surgery was gender specific. We did not accept that by appealing the warning which had been issued to her the claimant did a protected act in terms of section 27 of the Equality Act 2010 because we did not accept that at that time the claimant was claiming that she was discriminated against on the grounds of her sex (or any other of the protected characteristics).[177]In her grievance, the claimant specifically stated "... discrimination due to gender and mental health issues ... ". Gender is one of the protected characteristics in the Equality Act 2010. For that reason, we accepted that the claimant's action in raising her grievance was a protected act within the meaning of section 27 of the Equality Act 2010. It was action taken under that legislation.[178]We did not accept the respondent's reliance on discrimination not being discussed at either the appeal meeting or as part of the grievance process. That was a failure of the respondent. In circumstances where the claimant has set out in her grievance that she felt discriminated against, the obligation was then on the respondent to ask her the reasons why she believed that.[179]Having found that this was a protected act, we considered whether the claimant had been subjected to a detriment because she had done that protected act. The timing of when the claimant did the protected act (raised her grievances) was significant. The protected act was done on 21 October 2018 (by the claimant's email at JB372- 375). By that time, it had already been made clear to the claimant that they did not consider her to be entitled to redundancy pay. Events that occurred befor the claimant did the protected act of raising her grievance, could not have been because the claimant had done the protected act. There was no significant change in the respondent's dealings with the claimant after she did the protected act. On the evidence before us, the claimant did not prove, on the balance of probabilities, that she was subjected to a detriment because she had done the protected act. The claims under section 27 fail for that reason.
Compensation
[180]For the above reasons, the claimant is entitled to an award in respect of her successful unfair dismissal claim. The claimant is not entitled to any award in respect of injury to feelings because, for the above reasons, the claimant's claims under the Equality Act 2010 are not successful.[181]The claimant is entitled to an unfair dismissal basic award. It was agreed that the basis of the calculation of the basic award based is the claimant having 5 complete years of service as at the effective date of termination of employment, being then aged 25, with a gross weekly wage of £376.32. IN his Schedule of Loss, the claimant's representative had made a deduction from the basic award to reflect the claimant's mitigation in obtaining alternative employment. No deduction requires to be made from the basic award in respect if that. The claimant is awarded a basic unfair dismissal award of £1,881.60.[182]The claimant began alternative employment immediately after termination of her employment with the respondent and suffered no wage loss. There is therefore no wage loss element to.any compensatory award. The claimant is entitled to compensation for loss of statutory rights. We considered it to be just and equitable for that element to be calculated on the basis of two weeks' wages, to reflect the two year period the claimant would have to be employed before gaining the statutory right to claim unfair dismissal. The claimant's position in her ET1 is that her net weekly wage was £1236 a month. That equates to.a net weekly wage of (£1236 x 12 / 52) £285.23. The claimant is awarded a compensatory award of (2 x £285.23) £570. 46.[183]The respondent's representative sought a deduction from any unfair dismissal or compensatory award made to the claimant, on the basis of their position that the claimant had resigned on 9 October and had raised her grievances after resigning on that date. For the reasons set out above, we did not accept that the claimant had resigned on 8 October. We found that the claimant had raised- the grievances prior to her resignation, and that the issues raised in those grievances and the respondent's failure to deal with these grievances prior to 31 October caused the claimant to resign. We did not accept that respondent's representative's submissions that a deduction should be applied. The claimant had sought to resolve matters by raising a grievance prior to resigning. The respondent was aware of the issues in the grievances but did not seek to resolve them while the claimant remained employed by them. In these circumstances, we accepted the claimant's representative's position that an uplift should be applied in respect of the respondent's failure to adhere to the ACAS Code of Practice on Disciplinary and Grievance Procedures ('The ACAS Code'). 30 184. The ACAS Code at 4.23 recognises that the size and resources of an employer should be taken into account when deciding on.relevant cases and that it may sometimes not be practicable for all employers to take all of the steps set out in ACAS Code. It was relevant that the respondent is a sizeable organisation with a substantial HR department. Although the respondent's position was that the action taken against the claimant under the Absence Policy was not disciplinary, we took into account that the ACAS Code refers to discipline as "..rules covering such matters as.....absence ... ".[185]Specifically in respect of the guidance on dealing with grievances, the ACAS Code states (emphasis in boid as per the Code):-• "Employers and employee should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.• Employers and employees should act consistently.• Employers should carry out any necessary investigations to establish the facts of the case.• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.• Employers should allow employees to be accompanied at any formai disciplinary or grievance meeting.• Employers should allow an employee to appeal against any formal decision made."[186]The claimant was allowed to be accompanied and to state her case and an appeal was granted, and made. There was no evidence before us to conclude whether or not the respondent acted consistently in their dealings with the claimant's grievance, in comparison to others. We considered the time period which elapsed between the claimant raising her grievances and the grievance hearing to be significant. There was no explanation presented to us for that. I• •t was s1• gn om r o cant• m•• at• m•• e c1 t a• 1mam• maa I e 1• 11 c1 ' 1 ear 1• n n I er em . a1 1 s m t i m t. sn I e sougr I n .l. resolution prior to 31 October but that we heard no evidence of any attempt by the respondent to address or resolve the issues prior to that date. Tracey McFall was appointed as fact finder. She did not attempt to meet with the claimant to obtain her position in respect of the issues raised in the grievances.[187]In all these circumstances, we considered that an uplift should be applied to reflect the respondent's failure to deal with the claimant's grievance timeously. It was also relevant that when the grievances were dealt with, all necessary investigations did not take place. We accepted the claimant's reliance in her list of 'discrepancies' in the fact finding report and in particular her reliance on the failure to interview relevant individuals. 10 188. We took into account that in her grievance the claimant had raised concerns around the issue of the warning to her for her absence in January 2018 and that the respondent had focused on the warning being overturned and had not dealt with the claimant's wider concerns. That was compounded at the grievance stage, when the respondent failed to deal with all of the issues raised by the claimant in her grievance. That was significant because if the respondent had dealt with all of the issues raised in the claimant's grievance and had done so prior to the date of termination of the claimant's employment, that could have had the effect of the claimant remaining in employment with the respondent. 20 189. We calculated the compensatory award which was just and equitable to be made to the claimant, on application of sections 118 - 126 ERA. Section 207A(2) TULR(C)A 1992 provides:- "If, in any proceedings to which this section applies, it appears to the employment tribunal that -(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent." 30 190. We took into account the guidance from LJ Underhill in Lawless v Print Plus EAT 0333/09, that the relevant circumstances to be taken into account when applying the provisions (although that related to now repealed DDP statutory provisions) varied. His guidance was that relevant factors may include the size and resources of the employer. Relevance would depend on whether the factor aggravated or mitigated the culpability and/or seriousness of the employer's failure. Relevant factors should include:• whether the procedures were applied to some extent or were ignored altogether• whether the failure to comply with the procedures was deliberate or inadvertent, and• whether there were circumstances that mitigated the blameworthiness of the failure to comply.[191]We decided that in all the circumstances it was just and equitable to apply an uplift of 15% to both the unfair dismissal basic award and compensatory award. That factor took into account the relatively short period within which the claimant expected the respondent to deal with her substantial grievances and reflects the respondent's unreasonable failure to comply with the ACAS Code of Practice in respect of the claimant. That uplift is (15% of £1881.60) £282.24 + (i5% of £570. 46) £85.57 = £367.8·1.[192]No deduction was sought in respect of any contributory action by the claimant. The Tribunal did not consider that the claimant was guilty of any blameworthy action and no deduction was applied for contribution. The total award to the claimant for unfair dismissal is (£1881.60 + £570.46 + £367.81) £2,819.87.[193]The claimant's claim for breach of contract is successful for the reasons set out in respect of the constructive dismissal claim above. For those reasons there has been a breach of contract. The claimant received no payment in respect of notice on termination of employment. The claimant had five complete years of service as at the date of termination (30 October 2018). excess of the statutory notice entitlement. We did not accept the claimant's representative's basis of quantification of the breach of contract claim. That e is based on the entitlement to notice period. As we n did not hear any evidence on any contractual t notice period, in accordance with the provisions on notice in the ERA, the claimant is entitled to payment in respect of 5 weeks' notice, at net pay (5 x £ £285.23) £1,426.15. The award to the claimant in respect of breach of contract is £1,426.15.
Introduction
[1]The claimant had raised claims of unfair dismissal, breach of contract, redundancy payment and alleged discrimination on the grounds of the protective characteristics of disability and sex. These proceedings have been lengthy. The claim was raised in 2019 and the Final Hearing was on 21 – 25 and 28 – 29 November 2022[2]There was significant case management of this case, including at a number of Preliminary Hearings (‘PHs’). A number of Case Management Orders were issued.[3]Following a Preliminary Hearing on disability status, the decision was that, during the relevant period, the claimant was not a disabled person for the purposes of the Equality Act 2010. The claims under the Equality Act 2010 in reliance on the protected characteristic of disability (only) were dismissed.[4]At the Final Hearing (‘FH’), this Tribunal considered the complaints of (constructive) unfair dismissal, breach of contract and complaints under the Equality Act 2010 sections 13, 26 and 27, based on the claimant’s protective characteristic of sex (gender).[5]The Judgment of this Tribunal following the FH was that the complaints of unfair dismissal and breach of contract were well founded. Awards were made in respect of those complaints. The complaints under the Equality Act were all dismissed, for the reasons set out in Judgment dated 19 December 2022 and amended on reconsideration and with Rule 50 applied on 17 May 2023 (now referred to as ‘the Judgment’).[6]The claimant has applied for an Expenses Order. No application for costs was made at the conclusion of the FH but the claimant’s former representative had indicated that they would apply for a costs order when making an application for strike out of the response, in September 2019. At that time parties were advised that any applications for expenses would be dealt with following the conclusion of the FH. On 30 June 2023 an email was sent by the Tribunal office to the parties seeking specification of the costs application. On 7 September 2023, the claimant wrote to the Tribunal stating that she was ‘reiterating’ the costs application and making reference to some Rules. The claimant was again asked for specification of her application. The respondent’s representative objected to the late application and disputed that any costs award should be made.[7]The Judgment has been appealed by the claimant. That appeal procedure is not concluded as at the date of our consideration of the claimant’s costs application. No application has been made to delay our consideration of the costs application until the conclusion of the appeal, and it is not considered appropriate to do so, given the separate considerations.[8]It was agreed that the application for an expenses order would be made on consideration of the parties’ written positions.
Relevant Law
[9]This case was dealt with throughout seeking to pursue the overriding objective of the Employment Tribunal, as set out at Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Procedure Rules’). Parties had been reminded of the terms of that Rule 2 on a number of occasions. 10. ‘Costs’ are, in the main, referred to as ‘Expenses’ in Scottish proceedings (except re. ‘wasted costs’). The relevant statutory provisions, relating to Costs / Expenses Orders, are set out in Rules 74 – 84 of Schedule 1 to the Procedure Rules, including: Rule 74:(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses.(2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who— (b) is an advocate or solicitor in Scotland; or Rule 75: (1) A costs order is an order that a party (“the paying party”) make a payment to – (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; Rule 76: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that - (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success. (2) a Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. Rule 77: “A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.” Rule 78: (1) A costs order may - (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993, or by an Employment Judge applying the same principles; (c) Order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party; (d) Order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses (of the kind described in rule 75(1)(c)); or (e) If the paying party and the receiving party agree as to the amount payable, be made in that amount…. Rule 79: (1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £33 and increases on 6 April each year by £1.(3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2). Rule 80: (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”. (2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. (3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative’s own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party. Authorities General Position on Expenses / Costs[11]Following the Judgments of the Court of Appeal in Gee v Shell UK Ltd [2003] IRLR 82, Lodwick v London Borough of Southwark [2004] IRLR 554, and McPherson v BNP Paribas [2004] IRLR 558, costs orders in the Employment Tribunal remain the exception and not the rule. In the majority of Employment Tribunal cases, the unsuccessful party will not be ordered to pay the successful party’s costs. Costs are compensatory and not punitive.[12]In the Court of Appeal’s judgment in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ.1255, [2012] IRLR 78, Lord Justice Mummery, at paragraph 39 of his judgment, stated: “I begin with some words of caution, first about citation and value of authorities on costs questions and, secondly, about the dangers of adopting an overanalytical approach to the exercise of a broad discretion.”[13]In Ayoola v St Christopher’s Fellowship [2014] ICR D37, guidance was given by HHJ Eady, as follows: “17. As for the principles that apply to an award of costs in the Employment Tribunal under the 2004 Rules, the first principle, which is always worth restating, is that costs in the Employment Tribunal are still the exception rather than the rule, see Gee v Shell UK Ltd [2002] IRLR 82 at page 85, Lodwick v London Borough of Southwark [2004] ICR 884 at page 890, Yerrekalva v Barnsley MBC [2012] ICR 420 at paragraph 7. Second, it is not simply enough for an Employment Tribunal to find unreasonable conduct or that a claim was misconceived. The Tribunal must then specifically address the question as to whether it is appropriate to exercise its discretion to award costs. Simply because the Tribunal’s costs jurisdiction is engaged, costs will not automatically follow the event. The Employment Tribunal would still have to be satisfied that it would be appropriate to make such an order, see Robinson and Another v Hall Gregory Recruitment Ltd UKEAT/0425/13 at paragraph 15.[18]On this point, albeit addressing the previous costs jurisdiction under the 2001 Employment Tribunal Rules, the EAT (HHJ Peter Clark) in Criddle v Epcot Leisure Ltd [2005] EAT/0275/05 identified that an award of costs involves a two-stage process:(1) a finding of unreasonable conduct; and, separately,(2) the exercise of discretion in making an order for costs……[19]The extension of the Tribunal’s costs jurisdiction to cases where the bringing of the claim was misconceived has been seen as a lowering of the threshold for making costs awards, see Gee v Shell UK Ltd per Scott Baker LJ. In such cases the question is not simply whether the paying party themselves realised that the claim was misconceived but whether they might reasonably have been expected to have realised that it was and, if so, at what point they should have so realised - see Scott v Inland Revenue Commissioners [2004] ICR 1410 CA per Sedley LJ at paragraphs 46 and 49. Equally, in the making of a costs order on the basis of unreasonable conduct, the Tribunal has to identify the conduct, stating what was unreasonable about it and what effect it had, see Barnsley MBC v Yerrekalva per Mummery LJ at paragraph 41.[20]That said, an appeal against a costs order will be doomed to failure unless it is established that the order is vitiated by an error of legal principle or was not based on the relevant circumstances; the original decision taker being better placed than the appellate body to make a balanced assessment as to the interaction of the range of factors affecting the court’s discretion. Again, see Yerrekalva per Mummery LJ at paragraph 9, and note also the observation at paragraph 49 that `...as orders for costs are based on and reflect broad brush first instance assessments, it is not the function of an appeal court to tinker with them. Legal microscopes and forensic toothpicks are not always the right tools for appellate judging`.” 14. LJ Mummery gave guidance at paragraph 41 of Yerrakalva, as follows: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.” Three Stage Test 15. Following Oni v Unison [2015] ICR D17, the Tribunal is required to go through a three-stage process. Firstly, it must decide that the conduct in question is unreasonable. Secondly, it must then decide whether to exercise its discretion whether to make an award of expenses. Thereafter, it will assess the amount of an award having had regard to the paying party’s submissions and his means and assets. This approach is in line with the position in the civil courts (Ridehalgh v Horsefield and other cases 1994 3 All ER 848, CA, and Medcalf v Mardell and ors 2002 3 All ER 721, HL), as confirmed by the EAT in Mitchells Solicitors v Funkwerk Information Technologies York Ltd EAT 0541/07. Grounds for Costs 16. In Ridehalgh, the Court of Appeal examined the meaning of ‘improper’, ‘unreasonable’ and ‘negligent’ — subsequently approved by the House of Lords in Medcalf v Mardell and ors 2002 3 All ER 721, HL — as follows: “‘improper’ covers, but is not confined to, conduct that would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty ‘unreasonable’ describes conduct that is vexatious, designed to harass the other side rather than advance the resolution of the case ‘negligent’ should be understood in a non-technical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.” 17. Following Ridehalgh, a legal representative should not be held to have acted improperly, unreasonably or negligently simply because he or she acts on behalf of a party whose claim or defence is doomed to fail. In Medcalf, the House of Lords commented that it is the duty of advocates to present their client’s case even though they may think that it is hopeless and even though they may have advised their client that it is. Even if a legal representative can be shown to have acted improperly, unreasonably or negligently in presenting a hopeless case, it remains vital to establish that the representative thereby assisted proceedings amounting to an abuse of the courts process (thus breaching his or her duty to the court) and that his or her conduct actually caused costs to be wasted. 18. In Attorney-General v Barker [2000] 1 ILR 759, following Marler Ltd v Robertson [1974] ICR 72, NIRC, guidance was given on the meaning of ‘vexatious’: “Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process” Claimant’s costs order application 19. The claimant set out that she relies on:• Rule 76(1) (a) and (b)• Rule 76(2)• Rule 78(1)(d) and 76• Rules 79-80 And as follows: “The respondent acted wrongfully towards me throughout the case. They also partook in ignoring orders, ignoring notes, broke GDPR and AMRA laws, purpose delays, withholding evidence, editing evidence, colluding witness statements, lied under oath, sent unrelated private detail to all witnesses, said I just had a typical body hang up, accused me of lying and creating a meeting that happened yet later admitted it happened, continually interrupted me, speaking over me when I was answering under oath so that I could not get my answers heard, saying my operation wasn't for medical reasons despite having NHS proof. This is amongst other vexatious acts. Additionally, I was always due redundancy and my contract was breached and they wasted my time completely on this when they knew. The application should be considered, with reference to the time limit in Rule 77 and / or Rule 88, as appropriate because it was already applied for on more than one occasion.” [sic] 20. Following her receipt of the respondent’s representative’s written submissions on the costs application, the claimant’s position was: “…this is a prime example of why we had previously claimed for time, preparation and costs. As mentioned before, the respondent’s rep is legally trained, works for a law firm, and respondent themselves are a huge company. As before, I wish to reiterate the amount of times this has occurred, including orders not being adhered to, this dates back to 2018, and at that time it led to a strikeout request. The respondent went unpunished each time throughout including breaching AMRA law which further delayed proceedings. Like all times before, there have been no valid reasons provided. I believe this to be on purpose, to my detriment. I was lead to believe that lay persons would be given balance during proceedings, yet through the whole proceeding it has consistently been the respondent not adhering to Tribunal regulations and law, and this is another example. As such, like the many times before from which the respondent went unchallenged by the Tribunal despite my concerns and protests, I wish to once again object to the respondent treating me with disdain. Their latest late response should not be considered.” Respondent’s position[21]The respondent’s position was set out in written submissions provided by the respondent’s representative, who has represented the respondent throughout the proceedings in this case. The respondent relied on the following authorities:• Yerrekalva v Barnsley MBC [2012] ICR 420;• Lodwick v London Borough of Southwark [2004] EWCA Civ 306; and• Monaghan v Close Thornton EAT/0003/01.[22]The references in the respondent’s representative’s submissions to attempts to seek to resolve this matter by settlement are not relevant to this application and have not been regarded in our consideration of the issues.[23]The respondent’s representative did not address in detail any specific conduct indicated to be relied upon.[24]On application of Rule 2 of the Procedure Rules, we considered the claimant’s application for costs, and the respondent’s response to this application, although neither were submitted within the relevant time periods (particularly with regard to Rule 77). In doing so, we took into account that the claimant’s former representative had stated on a number of occasions throughout these proceedings that costs would be sought, that the claimant was not legally represented throughout the case and that the claimant is no longer represented at all. We considered that it was in furtherance of the overriding objective of the Tribunal to consider the costs application and the response. Much of what was set out in the respondent’s representative’s response was to state the relevant law and authorities relied upon. Scope of Application[25]Despite correspondence sent from the Tribunal requesting that the claimant set out a ‘fully specified application’ and that the claimant would need to provide particular information, there was very little detail from the claimant on the particular conduct relied upon in her application for costs. It is for this reason that the terms of the claimant’s application are set out above.[26]It was unclear whether the claimant was seeking costs against the respondent or the respondent’s representative. Given the Rules stated as being relied upon, the claimant appeared to be seeing both an application for expenses and an application for wasted costs. No detail was given of any costs incurred. That is a necessary factor in a successful application for wasted costs.[27]In her email of 7 September the claimant stated: - “I estimate the costs incurred to be £1600 - £160 per day x 10 days. I estimate the preparation time to be in excess of 100 hours.”[28]There was no detail given of how that sum was calculated, with regard to the Procedure Rules or in particular the rate in Rule 79. The claimant was represented by her partner. No explanation was given for the basis of the costs being incurred. There was no breakdown of any element alleged to be ‘wasted costs’, as distinct from costs incurred in the pursuit of the complaints.[29]It was noted that the respondent’s representative’s submissions did not specifically address concerns raised by the claimant in respect of that representative’s conduct. In all the circumstances, it was considered appropriate to also consider the respondent’s representative’s conduct, noting that the applicable test is higher than that re costs against a respondent. Conduct relied upon[30]We sought to identify the conduct relied upon, so to consider whether the conduct of the respondent and / or the respondent’s representative in these proceedings was unreasonable.[31]Given the broad statements in the claimant’s application, in particular with regards to allegations of failure to comply with Case Management Orders and ‘delays’, we considered it appropriate to consider the procedural steps in this case.[32]Following earlier Case Management Preliminary Hearings (‘CMPHs’), this case was scheduled for a Preliminary Hearing (‘PH’) to determine whether, at the relevant time, the claimant had the protective characteristic of disability. That PH was scheduled for 26 September 2019. Prior to that PH, the claimant made an application for strike out of the response. That application was dealt with at the outset of the hearing on 26 September 2019. The claimant insisted that the PH on disability status could not proceed. The claimant’s application for strike out of the response was refused, for reasons set out in the decision issued on 22 October 2019, within the Note following upon that PH. That decision is now referred to as ‘the strike out decision’.[33]It is understood that the root of the claimant’s expenses application is in respect of the matters which were the basis of the claimant’s application for the response to be struck out. These concerns are set out in some detail in the strike out decision, as is the respondent’s response to the claimant’s concerns. We therefore considered that strike out decision in respect of this strike out application. The claimant relied on non-compliance with a number of CMOs. She alleged breach of the Access to Medical Reports Act (‘AMRA’) and the General Data Protection Regulations (‘GDPR’). As set out in the strike out decision, the claimant had significant concerns about the respondent representative having sent her a ‘blank mandate’ in relation to the release of medical records from the claimant’s GP. The conduct relied upon by the claimant as referred to in the strike out decision (re. the mandate and re delay in exchange of documentary evidence and failure to comply with case management orders (at that time) is understood to be part of the conduct relied upon by the claimant in this costs application. At that time, the claimant’s position (as referred to at lines 12 – 13 on page 12 of the strike out decision) was that the respondent “…have been actively unreasonable and brought vexation to me about this case.”. The respondent’s representative’s position on their actions is also set out in the strike out decision, particularly at paras 59 – 60 re the mandate.[34]The next hearing before the Employment Tribunal in these proceedings was a CMPH on 4 June 2021. The Note issued after that CMPH on 4 June 2021 sets out proceedings from October 2019 to June 2021, as follows: “3. The claimant sought to appeal that decision to the Employment Appeal Tribunal (‘EAT’). These Employment Tribunal (‘ET’) proceedings were sisted pending that appeal process (UK EATPAS/0109/19/SS). The appeal was refused as having been presented out of time, for reasons set out 8 February 2021. On 17 February 2021 the ET wrote to parties noting that the case was sisted until 29 March 2021 and directing that parties update the ET by that date on steps taken to instruct the medical experts. 4. On 22 March the EAT informed the ET that the claimant had sought to appeal the decision of the Registrar of 8 February 2021, that that appeal had been dismissed by Lord Fairley and that the claimant had 42 days to seek leave to appeal to the Court of Session. 5. The claimant set out her position in email to the Tribunal of 11 and 12 April 2021 with regard to the instruction of independent experts and who should meet the cost of obtaining medical reports. 6. On 4 May 2021 the ET was informed by the EAT that the case was closed. On 13 May 2021 parties were asked to update the ET on any progress re the Orders issued on 22 October 2019. There was no reply from either party. A further chasing email was sent on 1 June 2021 and no reply was received to that.”[35]Case Management Orders were issued with the Note following that CMPH in June 2021. Those Orders varied the Orders issued with the CMPH Note on 22 October 2019, so far as they conflicted.[36]The PH on disability status took place on 10 and 11 January 2022. The decision dated 19 January 2022 was issued on 21 January 2022. The claimant was found to have had the protected characteristic of disability in respect of the physical condition she relied on.[37]A 5 day FH was scheduled to begin on 5 September 2022. That FH was postponed on 2 September, on the claimant’s application. The respondent had previously made an application for postponement, which had been refused. The respondent did not object to the claimant’s postponement application. The first day of the scheduled FH was converted to a CMPH.[38]In the Note issued after the Case Management Preliminary Hearing (‘CMPH’) held on 5 September 2022, under the heading ‘Failures to Comply with Case Management Orders issued in April 2022’ is stated: “I expressed concern at what appeared to be both representatives’ stage of preparation for the FH in this case. Both representatives relied on their own personal circumstances as part of their explanations. Reliance was also placed on lack of clarity re necessary witnesses and witness’ availability. I reminded representatives that Tribunal resources and public money had been used in respect of arrangements for the FH in this case, and the late postponement of this.”[39]The Case Management Orders issued in April 2022 were in respect of exchange of documentary evidence, preparation of the List of Issues, preparation of the Joint Bundle, witness statements, notification of timetabling arrangements, participation in a CVP test and provision of an updated Schedule of Loss. These Orders were complied with by the FH. Was that conduct unreasonable?[40]In respect of the matters relied upon at the time of the strike out application, and now relied on as the basis for a Costs Award, we considered the strike out decision. We considered the claimant’s position at that time on what actions by the respondent / the respondent’s representative were founded upon as being unreasonable. with reference in particular to what is set out in the strike out decision under the heading ‘Background’, particularly at paragraphs 2 – 17 and the summary of the claimant’s submissions in para 54. We noted the particular Order non-compliance relied on at that time (set out at paras 24 – 30). We considered the submissions made on behalf of the respondent in respect of the reasons for those actions, at paragraphs 55 – 61. We concluded that the conduct of the respondent and / or the respondent’s representative relied on at that time was not unreasonable within the meaning of the applicable Rules and the guidance from the authorities set out above. With regard to the relevant tests, it was not designed to harass the claimant. Given that the respondent’s explanations were accepted as being the reason for the action, the action was not an abuse of the court process. That does not mean that he claimant was not upset by the actions. Without making any inference on the likely prospects of such action, it is noted that that actions of the respondent’s instructed solicitor may be subject to a complaint to their firm and / or to their professional body, but that is not a matter for this Tribunal.[41]In this application, for a Costs / Expenses Order, the claimant refers to postponement and failure to comply with case management orders. She refers to ‘purpose delays’. No particular postponement is relied upon. No detail was given by the claimant of any particular Order relied upon as not having been complied with by the respondent. As far as the Tribunal can ascertain, although there were delays in some Case Management Orders being complied with, we have not been able to identify any which were not complied with at all. There were also delays in the claimant’s compliance with some Case Management Orders.[42]Where there was delay in both parties’ compliance with Case Management Orders, and where all Case Management Orders were complied with by the FH, we decided that that the conduct of the respondent and / or the respondent’s representative in delaying to comply with Case Management Orders was not unreasonable within the meaning of the applicable Rules and the guidance from the authorities set out above. It was not an abuse of the court process. On the basis of the position of parties at the various PHs, the delays in compliance with the Case Management Orders were not designed to harass and were not an abuse of process. It was taken into account that Expenses Orders in the Tribunal are not punitive and are exceptional.[43]No detail was given by the claimant in respect of her allegation of the respondent / respondent’s representative ‘ignoring notes’. The position as set out in the strike out decision was considered. As set out above, although there was delay by both parties, there was no complete failure to comply with Case Management Orders before the FH.[44]No detail was given by the claimant in respect of what she relied on in her allegation of ‘purpose delays’ by the respondent/respondent’s representative. As noted in the Note issued after the CMPH on 5 September 2022, the respondent had made an application for postponement of the FH arranged to be in September 2022. That application was refused. The claimant then made an application to postpone the FH scheduled for those September dates (for childcare reasons). That application was granted. A CMPH arranged for 19 April 2022 was postponed on the claimant’s representative’s request. No significant delay had been caused by the postponement of that CMPH. In circumstances where there has been no postponement of hearings on the basis of an application by the respondent’s representative, we decided that the conduct of the respondent and/or the respondent’s representative in respect of postponement applications, or on the basis of the allegation of ‘purpose delays’ was not unreasonable within the meaning of the applicable Rules and the guidance from the authorities set out above.[45]In our consideration, we noted the position at paragraph 11 of the decision issued following the Preliminary Hearing on disability status in January 2022 (now referred to as ‘the disability decision’). The respondent’s representative had accepted that the Joint Bunde for that PH ought to have been lodged earlier. Proceedings were adjourned on that day for a short time to enable the Joint Bundle to be shared on the Document Upload Centre.[46]The claimant also relied on conduct during the course of the FH. During that FH, concern was raised by the claimant’s witnesses that one of the witnesses’ medical records had been included in the Joint Bundle, and the full Joint Bundle had been circulated to all witnesses. This is mentioned at paragraph 109 of the Judgment. It was understood that that witness’s medical records had been disclosed without their consent. We considered that conduct as being relied upon by the claimant in this costs application.[47]There were no details given in respect of the allegation of ‘sent unrelated private detail to all witnesses’. We considered that in reference to the concerns raised during the FH as set out at paragraph 109 of the Judgment. It appeared that that witness’ medical records had been disclosed without their consent. Given the concern expressed during the FH in relation to the disclosure of a witness’ medical records, we considered that conduct as being relied upon by the claimant in this costs application.[48]During the FH, the respondent’s representative’s explanation for having included that witness’s medical records was, in summary, that his medical situation was relevant to the respondent’s position that the claimant was not discriminated against on the grounds of her disability. Reference is made to the respondent’s position on this, in particular at paragraphs 150 – 151 of the Judgment.[49]Although care ought to have been taken by the respondent’s representative in respect of authority for disclosure of medical evidence, in these circumstances we did not find that this conduct met the high test of being unreasonable or vexatious, in consideration of the case law authorities set out above. That conduct was not an abuse of process or done vexatiously, in the context of the guidance from the authorities above. As above, again without making any inference on the likely prospects of such action, it is noted that that actions of a solicitor may be a matter of complaint. However, we did not find that that conduct to have been done in abuse of the court process or with the intention to harass. It was then not unreasonable or vexatious in the context of an application for expenses or wasted costs, which is not punitive and is exceptional.[50]No detail was given in respect of the allegation of ‘withholding evidence’. As set out above, all Case Management Orders were complied with by the FH. That includes Orders for production or exchange of documents. As set out above, in these circumstances, where all CMOs were complied with by the FH, we decided that that the conduct of the respondent and / or the respondent’s representative in respect of disclosure of evidence was not unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above.[51]No detail was given in respect of the allegations now made of ‘editing evidence, colluding witness statements, lied under oath’. As set out in the Judgment, carefully consideration was given to the evidence before us. There was no detail provided of what the claimant relied on in respect of the allegations of the respondent having ‘accused me of lying and creating a meeting that happened yet later admitted it happened’. We considered our position set out in the ‘Comments on Evidence’ section of the Judgment. In consideration of what is set out there, in particular at paragraph 111 re the claimant, we noted that the claimant’s evidence was found to be credible and reliable. It is not uncommon for a claimant or witness’ position to be challenged in cross examination. In Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 2560 (Comm) it was concluded that the value of oral evidence “….lies largely, as I see it, in the opportunity which crossexamination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.”[52]In relation to the allegation of the respondent having ‘said I just had a typical body hang up’, no detail was given in the costs application. We considered this position in the context of the disability decision. We noted in particular the reference to that phrase at paragraph 70 of that disability decision, and at lines 5 – 7, where it is stated:- “I considered that to be inappropriate language and did not accept the premise, in circumstances where the claimant’s clinical legitimate need for the surgery was not disputed.’[53]There were no additional costs incurred as a result of this comment being made. The respondent did not dispute the claimant’s need for the surgery. Costs / expenses awards in the Tribunal are not punitive. Although that language may the subject of a professional complaint, we decided that that that conduct was not unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above. We did not conclude that the comment was ‘designed to harass’. The overall conduct of the respondent and their representative in defending this case did not support a position that they intended to harass the claimant. Although in this application the claimant relied on the respondent ‘saying my operation wasn't for medical reasons despite having NHS proof,’ that does not accurately reflect the respondent’s position at the time of the PH on disability status. As set out in the disability decision, in particular at paragraphs 58 and 70, it was not disputed by the respondent that the condition relied on by her had effects on the claimant.[54]We considered the allegations of ‘continually interrupted me, speaking over me when I was answering under oath so that I could not get my answers heard’. We noted that that position was not in line with the claimant and her representative’s position at the conclusion of the FH. We recalled that, at that time, thanks had been expressed to the Tribunal, particularly in respect of ‘listening to’ the claimant. It was not alleged that the claimant had been unable to present her case. We were satisfied that the claimant had the opportunity to present her case and have her evidence heard.[55]In respect of the claimant’s position that ‘I was always due redundancy and my contract was breached and they wasted my time completely on this when they knew’, we took into account our consideration of the claimant’s entitlement to redundancy pay, as set out in the Judgment, particularly at paragraphs 171 – 173. The reason for the termination of the claimant’s employment with the respondent was not redundancy. It was the claimant’s position that she ought to have been paid redundancy pay, and she relied on the respondent’s failure to do so as being a breach of contract entitling her to resign and claim constructive dismissal. That constructive dismissal claim was successful. The claimant’s position on the service closure in her witness statement, as set out at paragraph 112 of the Judgment was “I see the service closure as unrelated.”[56]In consideration of the relevant authorities, in particular, Ridehalgh referenced above, the defence of the breach of contract complaint was not an abuse of process. The defence of that complaint was not conduct which was unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above.[57]In consideration of all the above, we decided that that the conduct of the respondent and / or the respondent’s representative at the FH (and throughout) was not unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above. There was no abuse of process. It was not designed to harass. There was clearly animosity between the parties in these proceedings, and in particular between the claimant / the claimant‘s representative and the respondent’s representative. Although, as referenced above, some of the respondent’s representative’s conduct may be the subject of a complaint, such a complaint is not progressed by way of an application for an Order for expenses or wasted costs. Costs / Expenses Orders are not punitive. We required to consider the conduct in respect of the guidance in the relevant authorities. We considered whether the conduct was unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above. We do not find that the conduct of the respondent or of the respondent’s representative in these proceedings was unreasonable or vexatious within the meaning of the applicable Rules and the guidance from the authorities set out above. Did the response have no reasonable prospects of success[58]We separately considered whether an expenses order or wasted costs should be issued on the grounds of the response having had to reasonable prospects of success. That could only relate to the claimant’s complaints which were successful at the FH i.e. breach of contract and (constructive) unfair dismissal. We had regard to Ridehalgh, and our consideration of the issues in this case, particularly as set out at paragraphs 161 – 164 of the Judgement. On the evidence before us, the complaints of breach of contract and (constructive) unfair dismissal were successful. They were not ‘doomed to fail’, and even if they were, following the relevant authorities set out above, the defence of those complaints was not unreasonable in the context of being an abuse of the process of the Tribunal.[59]For these reasons, no award for expenses or wasted costs is issued against either the respondent or the respondent’s representative.