J Murray v Tesco Personal Finance plc: 4102041/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102041/2020

Between

Joanna MurrayClaimant

Tesco Personal Finance PLCRespondent

Before

Employment Judge M A Macleod

Date 17 March 2022

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant’s application to amend is granted, but only insofar as relating to paragraphs 9 to 21 of the Scott Schedule submitted to the Tribunal on 6 May 2021; paragraphs 1 to 8 are excluded.

REASONS

[1]In this case, a Preliminary Hearing (Open) was listed to take place on 7 May 2021 by CVP in order to determine whether the Scott Schedule presented by the claimant in response to Orders by the Tribunal amounts to an application to amend the claimant’s claim, and if so, whether that application to amend should be granted. ETZ4(WR)

[2]The claimant attended and was represented by Ms Neil, her solicitor. Ms Goodman, barrister, appeared for the respondent. The claimant gave evidence on her own behalf.

[4]The Tribunal was presented with a number of documents, including different versions of the Scott Schedule. Accordingly, it is important to set out the procedural history of this matter prior to determining the facts upon which the decision will be based.

Background

[5]The claimant presented her claim to the Employment Tribunal on 3 April 2020.

[6]A Preliminary Hearing took place on 27 August 2020 before Employment Judge Buzzard, following which a Note was issued, the terms of which are referred to for their content.

[7]It was noted at that time that the claims pursued by the claimant at that time (when she was still representing herself, having presented the claim to the Tribunal without the benefit of legal advice) were:(i) Unfair Dismissal

(ii) Disability Discrimination

(iii) Notice Pay

(iv) Holiday Pay

(v) Arrears of Pay

[8]By that stage, the claimant had produced a Scott Schedule, attempting to define her claims in a more precise way, again without the benefit of legal advice, and she was ordered to produce to the respondent an editable version of the Scott Schedule. The respondent was ordered to provide to the claimant an annotated version of the Scott Schedule setting out areas where the respondent was unable to understand how or why the claimant linked the entry to her disability. The claimant, in turn, was then to provide to the respondent an amended Scott Schedule seeking to answer those points.

[9]For the purposes of this Hearing, there were two versions of the Scott Schedule under consideration, dated, respectively, 9 November 2020 and 6 May 2021 (the latter being presented to the respondent and the Tribunal late in the evening prior to the Hearing). Parties addressed these matters in their submissions and I propose simply to deal with them at that stage. Findings in Fact

[10]In order to determine the questions before the Tribunal it was necessary to hear evidence from the claimant and consider the documents presented.

[11]The claimant presented her claim on 3 April 2020 to the Tribunal, having been dismissed by the respondent with effect from 5 March 2020. By that date, the claimant had already notified ACAS of her intention to submit a claim to the Tribunal, on 28 February 2020, and ACAS issued an Early Conciliation Certificate by email to her on 4 March 2020.

[12]The claimant noted in her claim form, at paragraph 15, that “Due to Covid-19/Lockdown during the month I had to get this claim in, I’ve had to complete this form without the guidance from my Solicitor.” The statement of claim attached to the ET1 ran to 8 pages of detailed narrative.

[13]In their ET3 paper apart, the respondent sought, at paragraph 3, that the claimant present further and better particulars of her disability discrimination allegations in the form of a Scott Schedule, being a document “setting out each act of discrimination the Claimant complaints of, along with details of the date and location it allegedly occurred, the people allegedly involved and any eye witnesses present, and what type of discrimination the Claimant alleges this is.”

[14]At paragraphs 1 and 2, the respondent asserted that the Tribunal did not have jurisdiction to hear the claim insofar as it related to any alleged acts of discrimination which occurred more than three months prior to the date of presentation of the claimant’s case to the Tribunal. They also argued that any claims prior to that date should not be allowed to proceed on the basis that it would not be just and equitable to allow the claimant to bring such a claim out of time under section 123 of the Equality Act 2010.

[15]The Tribunal wrote to the claimant to refer her to paragraph 3 of the ET3 paper apart, and asked if she could provide further details of the incident of alleged discrimination by 16 June 2020. The claimant understood that she was ordered to produce a Scott Schedule, only outlining allegations which took place within 3 months of the date of presentation of her claim. She had information which went back beyond that date, and indeed considered that her difficulties at work began in August 2016.

[16]She noted, then, that having presented a Scott Schedule, the Employment Judge in August 2020 ordered her to provide an editable version for the respondent, and for exchanges to take place between the parties. In September 2020, the claimant sought to instruct a solicitor in order to assist her understanding of the claims being made, following comment to that effect by Employment Judge Buzzard. She therefore instructed Ms Neil, who represented her before me, to act on her behalf in this matter. Extensions of time were sought for compliance with the Orders of the Tribunal, and the Scott Schedule was ultimately provided on 9 November 2020.

[17]The terms of the Scott Schedule were amended from their original form following the receipt of legal advice by the claimant.

[18]On 6 May 2021, the day before this Hearing, a further email was sent to the Tribunal and to the respondent by the solicitor for the claimant in which a new version of the Scott Schedule was provided. The claimant explained that in November, when constructing the earlier Schedule, the claimant was focusing upon the effects upon her of the treatment which she alleged she received at work, and was seeking to follow the legal advice she was being given. However, on 6 May 2021, she had a further discussion with her solicitor, during which there was a conversation in which the claimant explained to her legal representative that she did not understand why the earlier “continuing” acts were not included in the Schedule. There followed a discussion about the different job titles and roles, and she explained to Ms Neil that Natalie O’Donnell was the Head of Department, overseeing all of the work within the department and taking responsibility for decisions made in relation to the claimant’s work.

[19]Natalie O’Donnell replaced Graham Pringle as Head of Fraud Prevention and Customer Protection, and the claimant alleged that in August 2018, Ms O’Donnell directed that the claimant was to be moved back into the team in which she had previously worked at the time when she suffered a breakdown. This was referred to in page 2 of the paper apart to the ET1, in which it was alleged that she attended a meeting with Stephen McIntosh, on a date unspecified but apparently after 31 August 2018, who then told her that Ms O’Donnell wanted her to return to her previous team and not stay part time where she was, causing the claimant to have an emotional breakdown.

[20]In her evidence, she maintained that in the meeting with Mr McIntosh, who reported to Ms O’Donnell, he told the claimant that Ms O’Donnell had made the decision to move her back to her old department, that she could do nothing about this, and that if she did not wish to go back, she would not have a job.

[21]The significance of Ms O’Donnell, which the claimant said her solicitor had not hitherto understood, was that she was the one making decisions and overseeing decisions which affected her disability and exacerbated her illness. The updated Scott Schedule brought the claim to the point when she was dismissed with Ms O’Donnell’s “complete control of the situation”. She maintained that these matters were not included in the earlier Schedule as she was focused only on the events which were within the 3 month period. She said that she had been advised of this by Strathclyde Law Centre, approximately 2 weeks prior to the Preliminary Hearing conducted by Employment Judge Buzzard in August 2020.

[22]Employment Judge Buzzard’s Note records, at paragraph 18: “It was confirmed that the claimant has only included incidents that occurred within the three months prior to dismissal in the Schedule. The claimant indicated that she believes some of the incidents prior to that date may have been part of an ongoing act. The respondent's representative stated that the incidents were different in nature and related to different persons, and accordingly were not part of a continuing act. The claimant agreed to consider the position and confirm if she wished to argue that earlier incidents amounted to acts of discrimination which should be considered because they were part of a continuing act that ended within the three month time limit for presenting claims. An order to this effect was agreed as set out at the end of this note.”

[23]Among the Orders set out at the end of that Note was Order 2.6: “By no later than 2 October 2020 the claimant must confirm if she seeks to argue that any acts or omissions not included in her Scott Schedule, that occurred more than three months prior to the presentation of her claim, are argued to be acts of discrimination that fall within the jurisdiction of the Tribunal to consider because they formed part of a continuing act that ended no more than three months prior to the presentation of her claim. If the claimant confirms that any such acts are relied on, the claimant must produce and send to the respondent an amended Scott Schedule, adding a row for each further act or omission and in addition stating where within her ET1 that act or omission is described.”

[24]The claimant submitted her further Scott Schedule on 9 November 2020 with the benefit of legal advice, and her explanation for the final version being submitted on 6 May 2021 was that she followed her solicitor’s advice at each stage. Submissions

[25]For the claimant, Ms Neil submitted that when the claimant submitted her ET1 on 3 April 2020 she particularised claims of unfair dismissal, disability discrimination and holiday and other payment claims, without the benefit of legal advice.

[26]The claimant submitted her ET1 on 3 April 2020, and in that claim she complained of unfair dismissal, disability discrimination, holiday pay and other claims.

[27]The claim was submitted without the benefit of legal advice. In the paper apart attached to the ET1, she set out the date of dismissal as 5 March 2020, and listed incidents dating back to 2016. The respondent submitted an ET3 response in which they addressed each of the incidents described. The claimant then appeared on her own behalf at a Preliminary Hearing on 28 August 2020 in which she was ordered to produce a Scott Schedule.

[28]She complied with that Order, having been provided with a number of headings under which to categorise the claims. Again, she produced the Scott Schedule, in its original form, without the benefit of legal advice, though the Employment Judge suggested to her that it may be appropriate for her to consider seeking support from a solicitor.

[29]Ms Neil advised that the claimant limited her claims to the 3 months prior to the date of her dismissal. The claimant viewed the prior incidents as background, but the claim was a statement of claim in its entirety and stated to be such in the paper apart. She cautioned against defining the prior events as merely background as that was not the claimant’s intention when she submitted the original claim.

[30]She said that the claimant considered that there was a continuing series of acts, and raised that at the Preliminary Hearing, and as a result, she was offered the opportunity to revise the Scott Schedule. She sought legal advice at that point, and was given an extension of the deadline to provide an amended Scott Schedule by 18 September 2020.

[31]Ms Neil stressed that although there have been a number of delays created by extensions of time for presenting the claims, these have all been authorised by the Tribunal. The delay until 9 November 2020, when the Scott Schedule was eventually produced by the claimant, should not be regarded as material.

[32]She submitted that the Scott Schedule simply provided further specification of the claimant’s claims, which was clearly necessary from the terms of the ET1.

[33]She argued that the Scott Schedule of 9 November comprised(1) matters specifically raised within the ET1 and

(2) matters referred to in a more general sense. She highlighted the lack of support by the respondent in the final bullet points laid out in the ET1 paper apart. She complained that she was constantly refused HR and Payroll support, and lost trust in the respondent’s management. A whole section of the ET1 raises the issue of lack of support.

[34]The Scott Schedule then specifies further instances of the lack of support:• Item 9 – a number of matters which the claimant considered of importance were omitted from the minutes following a welfare meeting on 13 September 2019. This was specifically mentioned in the ET1.

• Item 10 – the claimant alleged that she had sent an email on 3 December after receiving a letter from the respondent complaining that she had failed to reply to meeting invitations, confirming that she had in fact done so. This was not specifically particularised in the claim form but arose from the general failure to provide support. She also pointed out that she was at home, without support, which disadvantaged her.

• Item 13 – she complained that she was subjected to a disadvantage due to the fact that she was absent from work, had no access to Payroll and that if she had been at work she would not have been subjected to that disadvantage.

• Item 14 – this allegation was specifically referred to in the ET1. Given her role, Natalie O’Donnell was overseeing the issues which the claimant had been having.

• Item 15 – the fact that she claimant was deprived of access to Payroll was specifically referred to in the ET1 paper apart.

• Item 16 – the claimant being requested to provide answers to the same questions as had been answered before, which arises from the complaint of general lack of support.

• Item 17 – the claimant complained that she had sent emails to HR asking for help, which arises from her complaint of a general lack of support.

• Item 18 – Ms O’Donnell advised the claimant that she did not want any unnecessary contact.

• Item 19 – this complaint was specifically referred to in paragraph 6, page 6 of the ET1 paper apart.

• Item 20 – this complaint is clearly within the ET1.

• Item 21 – the claimant complained that the letter of dismissal contained many errors.

[35]The important point about the lack of support raised by the claimant is that she was asking someone objective to consider the issues. The lack of support is clear from the ET1 and the Scott Schedule, and the claimant was forced to return to the same managers to ask for answers, managers who had failed to support her.

[36]The Scott Schedule of 9 November 2020 relabelled a number of claims, and was the first Scott Schedule provided with the benefit of legal advice. The updated Schedule was very similar to the earlier Schedule, and no allegations which are new are raised, compared to the earlier version.

[37]Ms Neil then turned to the new Scott Schedule of 6 May 2021. She explained that when discussing the matter with the claimant, it became clear to her that there was a fundamental misunderstanding (on the part of Ms Neil) as to the involvement of Ms O’Donnell in her treatment. In the ET1, at paragraph 3, page 2 of the paper apart, there is mention of the involvement of Stephen McIntosh and Natalie O’Donnell, but that the ultimate responsibility for the department is not clear from that. She very candidly accepted that this had arisen as a result of her own lack of understanding that Ms O’Donnell was the manager who moved the claimant back into the Fraud Prevention Team, from which point matters became worse. None of the later incidents would have arisen had she not been put back into that team.

[38]As a result of that discussion, Ms Neil said that she worked to produce an amended Scott Schedule as quickly as possible. She also submitted that the claimant does not accept that either of the two most recent versions of the Scott Schedule amount to an application to amend the ET1.

[39]She pointed the Tribunal to Abercrombie & Others v AGA Rangemaster Ltd

2013 EWCA Civ 1148

, which, she submitted, updated the Tribunal’s systematic approach to applications to amend set out in the well-known case of Selkent Bus Co. Limited v Moore

[1996] ICR 836

. The court distinguished between minor changes and substantial alterations, and encouraged Tribunals to note that Selkent does not advocate a formalistic approach, nor a “tick box” approach to the assessment of whether or not the application should be granted.

[40]Ms Neil submitted that the claimant’s claims have now been particularized in their entirety, and that the Scott Schedule, in its most recent form, is designed to assist the Tribunal by providing full specification, including heads of claim. It is evident to all parties that the claimant considered herself to have been discriminated against and unfairly dismissed. Accepting the amendment would not alter the basis of the claim.

[41]She acknowledged that the claimant should not be allowed to circumvent the time limits by amending her claim, but in this case the facts set out in the Scott Schedule were already based on what was said in the ET1 paper apart, and there is no such attempt here. The respondent was able to respond competently to all of the incidents raised in the ET1, going back to 2016. The difficulty was that the role of Ms O’Donnell was not understood clearly by “other parties including me”, as Ms Neil put it. She said that it was not possible for the claimant to have included this within the original ET1, and as soon as the issue became clear, an amended Scott Schedule was submitted.

[42]The Tribunal has the power to grant the application to amend, if that is required. She urged the Tribunal to exercise its discretion on the grounds that it is just and equitable to do so.

[43]Ms Neil referred the Tribunal to the Court of Appeal decision in Bexley Community Centre trading as Leisure Link v Robertson

[2003] EWCA Civ 576

and Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[44]She accepted that the claims relating to the continuing series of acts have been submitted 11 months after the statutory deadline, owing to an unfortunate series of circumstances arising from a complicated claim. She argued that the claimant has now provided a good explanation for the ongoing delays. The claimant was unrepresented, and had some difficulty producing a Scott Schedule, whereupon she sought legal advice. She produced the first Schedule before she had the benefit of legal advice, on 27 August 2020; the second Schedule, relabelling the claims, with legal advice on 9 November 2020, and then once Ms O’Donnell’s role was finally realized the third Schedule, on 6 May 2021. This was through no fault of the claimant, who thought it was understood what Ms O’Donnell’s role was.

[45]The claimant has not delayed at any stage, which is a very relevant factor, and extensions have been granted and complied with. The most recent Schedule was the only document which did not arise in compliance with an Order of the Tribunal.

[46]The claimant, she submitted, followed internal procedures with the respondent through her employment, and saw those procedures through to the end. She was repeatedly trying to address matters internally with her managers. The start of the series of continuing acts was in August 2016. There was a lack of clarity between the claimant and her legal adviser as to the structure of the respondent’s organization, and throughout the claimant has demonstrated a willingness to follow the Tribunal’s Rules of Procedure and comply with matters ordered of her.

[47]It would be just and equitable to allow the amendment, if it is required, to be granted. The claimant would be concerned to lose the opportunity to raise these matters.

[48]Having created the final Schedule, further expense should be prevented for the respondent and the Tribunal, since it was presented to them both prior to the Preliminary Hearing.

[49]There is clear prejudice, she submitted, if the claimant were to lose the opportunity to raise the earlier acts of discrimination in her final hearing. The Schedule has provided to the respondent “an advantage which they would not normally receive” as it is a very detailed narrative setting out the complaints to be made, and refers to the emails which she will rely upon to support her claim. There is no issue with regard to the cogency of the evidence. The respondent now has notice of the arguments, and there is no apparent prejudice accrued by the respondent by this application.

[50]For the respondent, Ms Goodman submitted that there are four stages:(1) to set out the number of different claims there are in order to have a picture of what the overall claim looks like;

(2) to consider the timeline;

(3) to determine whether an amendment application is required, and if so, in respect of which aspects of the further and better particulars; and

(4) to determine whether the application to amend should be granted.

[51]Firstly, then, she submitted that of the most recent Scott Schedule, paragraphs 1 to 8, 10, 11, 12, 14, 15, 16, 18, 19 and 21 all require to be the subject of an application to amend the claimant’s claim. She pointed out that paragraphs 1 to 8 were intimated “last night”, and the others on 9 November 2020.

[52]Ms Goodman observed that if the amendment were not allowed, the Scott Schedule would then be left with paragraphs 9, 13 and 20, which are three claims under section 15 of the Equality Act 2010. However, she said that there is a remaining question about paragraphs 15 and 16 of the Scott Schedule, which may be claims under sections 15 and 26, or sections 15 and 27, or something else, given the claimant’s reference to a reasonable adjustments claim, and as a result, suggested that further clarity is required from the claimant.

[53]She also said that it is unclear whether the claimant concedes that some of the paragraphs amount to amendments to the claim.

[54]Secondly, Ms Goodman moved to consider the timeline in this case. The claimant contacted ACAS on 28 February 2020, and received the Early Conciliation Certificate (ECC) on 4 March 2020. She presented her claim to the Employment Tribunal on 5 March 2020. On the face of it, any complaint before 31 December 2019 was therefore presented out of time. The claimant says she wrote the claim herself, without a lawyer, and it is factually extremely comprehensive in relation to the period from 2016 to 2020. She was very clear on her experience, but did not analyse it within a legal framework.

[55]Before the first Preliminary Hearing (PH), the claimant was ordered to provide a Scott Schedule, and did so, sticking to the time lines, limiting the complaints to events occurring 3 months before dismissal. She said that this was based on advice from ACAS and the Law Clinic.

[56]At the PH, the Employment Judge said that the disability claims remained unclear, and that the claimant needed to consider her position. She agreed to do so, in relation to the historic claims, and came back on that by 2 October 2020. She was urged by the Employment Judge to seek legal advice and she did so. At some point before 18 September 2020, the claimant instructed Livingstone Brown, solicitors, and they, acting upon her instructions, sent in the next version of the Schedule on 9 November 2020. When the respondent received that Schedule, Ms Goodman said, they raised the point that this amounted to an application to amend the claim, and that was the basis upon which this PH was listed, in order to deal with that application.

[57]It is now 8 months since the solicitors came on board, and 6 months since the final clarification of the Schedule, but Ms Goodman observed that the respondent now had to deal with the additional 8 complaints inserted into the Schedule. She noted that the claimant’s representative has suggested that those items are already in the original claim in a general sense.

[58]Ms Goodman submitted that the claimant was continuing to amend her claim “on the fly” in her submissions: for example, she is now saying that the respondent should have introduced an objective person to look at the issues, a point never previously raised in writing.

[59]She complained that the respondent is no better off than they were at the first PH, but given the stage which the proceedings had reached, it would not be appropriate to allow further amendments to be added to the proceedings.

[60]She addressed the point made by Ms Neil, that the additional paragraphs 1-8 are only included due to the new understanding which she herself had developed of the role played by Ms O’Donnell. She said that if the claimant is seeking to argue that these matters have always been part of the claim, this does not explain why they are only now included in the Schedule. She submitted that if the purpose of the additional particulars were to clarify the claims made, she may, as respondent’s representative, welcome such clarification; however, in this case, the claimant is using the ET1 as a jumping off point from which to add further claims, which is contrary to the purpose of the pleadings.

[61]Thirdly, Ms Goodman submitted that there is an application to amend the claim in relation to the items contained in the Schedule. She referred to a number of authorities in seeking to set forth the relevant principles to be adopted by the Tribunal. Having done so, she moved to address the different items in the Schedule.

[62]Paragraph 10 referred to an email on 3 December to Susan McCarry, in which she was seeking confirmation that she had replied to previous meeting invitations. Ms Goodman said that the claimant now seeks to say that there were facts in the original claim form which encompassed this correspondence, but she submitted that there is simply no basis to suggest that these claims in the grounds of claim. She was sending emails and felt upset but there is nothing to foreshadow the claims in paragraph 10 of the Schedule, and the same point arises in relation to paragraph 11.

[63]Paragraph 12 raises the point about not replying to emails immediately, about which there is nothing in the grounds of claim. The claim simply said that the claimant emailed the respondent and Ms O’Donnell started to reply. She said that she asked to be able to speak to HR and Payroll, which the claimant now says is about not having a point of contact in those departments, but that is not in the grounds of claim.

[64]In paragraph 14, the claimant says that she was only given 7 days to respond and needed more, but there is nothing about this in the ET1, even when looking at the claim as a whole. This is therefore a matter which must be the subject of an amendment application.

[65]In paragraph 15, there is reference to an email of 6 January which was not in the ET1. This is not being quoted as an example but as something specifically done to remove contact details of Payroll. This was not in the ET1.

[66]The same is true, she argued, of paragraph 16, as the ET1 does not mention that the claimant was being asked questions which she had already answered. The ET1 does not say that any of this happened due to a protected act, so this is a new claim which is insufficiently particularized.

[67]In paragraph 18, the email of 5 February sent by Ms O’Donnell to the claimant is not mentioned in the ET1. There is no claim in the ET1 that Ms O’Donnell subjected the claimant to harassment in this way.

[68]Paragraphs 19 and 21 are indicative of unnecessary delays as they were not in the ET1. It is not enough, she submitted, to say in general that she was not being heard; she required to have said something about victimization. If it is suggested that detrimental action was taken as a result of having raised an ET1, there is nothing in the original claim form about it.

[69]Paragraph 21 avers that the reason for dismissal was related to a comment in a grievance meeting, but there is nothing said in the ET1 about that comment being used to dismiss her.

[70]Ms Goodman submitted that this application is about “new facts, and new characterisations of the facts”. It must be the case, she said, that from looking at the ET1, the particular complaints in the Schedule must be identifiable. There is simply no victimization claim in the original ET1. There is no suggestion that these acts were visited upon her for having raised a grievance. She maintained that when she put to the claimant in cross-examination in this PH that the reason the grievance was not upheld was that the manager did not agree, the claimant accepted that.

[71]She concluded this section of her submission by saying that it is plainly not correct to say that an amendment application is not required.

[72]Fourth, Ms Goodman set forth her arguments as to why the Tribunal should not grant the application to amend.

[73]Referring to well-known authorities, and to the overriding objective of the Employment Tribunals Rules of Procedure 2013, Ms Goodman submitted that it would not be proportionate for the Tribunal to allow the claimant’s amendments when the claims made remain unclear, raising fuller issues of factual inquiry. She acknowledged that the original claim was drafted by an unrepresented claimant suffering from mental health difficulties, but she has now instructed solicitors, with whose assistance she has submitted two further Schedules. If the most recent Schedule were allowed to be received, there would still be work required in order to clarify what the claims actually amount to. The most recent Schedule was produced the night before this Hearing, and added 8 new items, which are still in need of clarification, giving rise to delay and additional expense.

[74]There is ample information in the claim already presented, and the dismissal claim is there. She can therefore proceed with those claims she already has. She is not permitted to continue to add claims as she likes, but that appears, she submitted, to be the claimant’s approach.

[75]Even if the new claims were added, they are weak, and each one of the reasonable adjustments claims are out of time, so the Tribunal would require to consider exercising its discretion to allow those claims to proceed.

[76]The claim in respect of victimization has no reasonable prospect of success, following the claimant’s acceptance that the reason for the grievance being refused was unrelated to her protected characteristic. There is in any event no basis for determining that there has been a protected act in this case.

[77]What is left are three harassment claims, all of which are “pretty weak”, in Ms Goodman’s submission. She maintained that it would be relatively simple for the respondent to show that the emails of which the claimant complains were all sent for a different reason than that claimed by the claimant.

[78]If granted, the respondent will have had to spend a significant sum on two PHs, will have to come up with further defences and will have to do so in the face of new claims which are weak and not likely to succeed.

[79]The parties are on an equal footing. The claimant has benefited from legal advice for some 8 months to the date of this PH, and the ET1 sets out substantial claims which represent her complaint to the Tribunal.

[80]There is no indication in the ET1 that the claimant regarded herself as having been victimized or harassed by the respondent.

[81]If the application to amend is to be granted, it should be granted subject to time bar, which would still require to be resolved.

[82]Finally, the payments claims which the claimant seeks to make also require to be clarified.

The Relevant Law

[83]It is appropriate to refer to the overriding objective of the Employment Tribunal, set out at Rule 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.”

[84]There is a useful formulation of the types of amendment which are typically put forward by parties in Tribunal proceedings in Harvey in Industrial Relations and Employment Law, Division T at paragraph 311.03: “A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.”

[85]An important authority in this area is Selkent Bus Co Ltd v Moore

1996 ICR 836

. At p.843, Mummery J, as he then was, said: “(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision”.

[86]The Tribunal was also referred to Office of National Statistics v Ali

[2004] EWCA Civ 1363

. At paragraph 39, Lord Justice Waller states: “In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference to the particulars to an event…, particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim as in Dodd, but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states…”

[87]In paragraph 40, he went on: “One can conceive of circumstances in which, although no new claim is being brought, it would, in the circumstances, be contrary to the interests of justice to allow an amendment because the delay in asserting facts which have been known for many months makes it unjust to do so… There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time…”

[88]In Abercrombie and Ors v Aga Rangemaster Ltd

2014 ICR 209

a distinction was drawn between amendments which seek to relabel averments already made and the making of entirely new factual allegations which change the basis of the existing claim. Tribunals should not focus on the formal classification of the claims but the extent to which the amendment would involve substantially different areas of inquiry than those made in the original claim. Discussion and Decision

[89]The application before the Tribunal is to allow the pleadings of the claimant to be augmented by the addition of the material contained within the Scott Schedule, as further amended in the version submitted on 6 May 2021, the day before this Hearing.

[90]This is an unusually complex and drawn-out process, which began before the claimant was in receipt of formal legal advice, and at the instigation of the Employment Judge hearing an earlier Preliminary Hearing. It is plain that the claimant, particularly with the help of her solicitor, has sought to refine and narrow down the issues for the benefit of the Tribunal, but in doing so, has introduced new aspects to the claim. It is necessary for me to determine the extent to which the Schedule does so, whether that involves the introduction of material which would involve substantially different areas of inquiry than those made in the original claim and then to decide whether or not the application to amend should be granted, in whole or in part.

[91]It is perhaps useful to consider, firstly, the 8 new paragraphs which have been added to the Schedule on the day before this Hearing, numbered 1 to 8. The incidents which are set out in these paragraphs are all said to have taken place more than three months prior to the presentation of the claim, and were only included for the first time within the Schedule on 6 May 2021. In summary, these incidents were as follows: 1. September 2017 – claimant told that unless she moved back to the Fraud Prevention Team, she would not be able to keep her job; 2. January 2018 – claimant taken to a meeting by manager, Stacey, who criticised her language from a call and suggested she was lucky not to be reported; 3. 10 November 2018 – told by her manager that payroll had told her that she owed money to the respondent, but subsequently advised that this was an error; 4. Late February 2018 – told by her manager that she owed the respondent leave, to be paid either by financial repayment or by working extra hours, but despite asking her manager for details in writing this was never received by her; 5. 30 July 2018 – claimant received a number of emails about alleged failures on her part, which she considered to be an act of harassment; 6. September 2018 – claimant was advised that she needed to have an informal welfare check with her manager, Karen Lightfoot. When she attended the meeting, she found it distressing owing to “disturbing and probing questions” being asked by Ms Lightfoot and another manager, Bernie, which she regarded as harassment; 7. 5 December 2018 – Frank Wilson told the claimant, prior to a grievance investigation meeting, that her account of the previous meeting was completely different to the managers’ account, and asked what she would do if she were sacked, a further act of harassment; and 8. 18 February 2019 – David Laverie failed to uphold her grievance and to respond substantively to her appeal, when she had complained about her treatment during absences and in relation to her disability.

[92]The claimant had previously indicated to the Tribunal that she regarded these matters which took place prior to three months before the presentation of her claim as background material, rather than the basis for separate heads of claim or claims.

[93]The reason why she presented the claims at the late stage she did was because her solicitor had misunderstood the role of Natalie O’Donnell in the department, as having overall control, and therefore had not understood that there was a continuity between those acts which would be likely to bring the claims within the three month period to dismissal.

[94]Dealing, then, with these 8 new paragraphs, it is plain that Ms Neil has been quite candid in accepting responsibility for the late presentation of these additions to the Schedule. She accepted that she had not understood that it may be possible to argue that there was a continuing series of acts, wrought by Natalie O’Donnell, until that conversation which, it appears, took place on 6 May 2021, and necessitated a very late email to the Tribunal on that evening to seek to add these new claims.

[95]It is accepted by the claimant that these claims have not previously been presented to the Tribunal as claims.

[96]There is no doubt that the factual material which makes up the bulk of the allegations in these 8 paragraphs has largely been included in the ET1. It is plain that the claimant attributes much of what followed to the decision by Ms O’Donnell to insist that she return to the Fraud Prevention Team, and seeks to show that even those acts which were not specifically committed by her – for example, the conduct of the meeting in September 2018 and the handling of her grievance by David Laverie – were somehow her responsibility, or arose from the original decision to move the claimant back into that team.

[97]The context in which these new paragraphs appear is also of importance, however. The claimant and her solicitor have both previously made clear, in the presentation of the first Schedule, that the earlier averments exist in this claim only as background, and this Schedule is an attempt to revisit that clear declaration.

[98]In my judgment, it is clear that paragraphs 1 to 8 do amount to an attempt to introduce new claims to the proceedings, and that those new claims arise out of events or incidents which took place on or before 18 February 2019, more than one year before the claim was presented to the Tribunal. While the averments have been foreshadowed in the narrative which was attached to the ET1, they were previously stated by the claimant to be background material rather than averments of heads of claim.

[99]The difficulty for the claimant is that these paragraphs have been added very considerably after the claim was instituted, and indeed after the point when she was ordered by the Tribunal to codify her claims in the form of a Scott Schedule. There must be finality to these pleadings, and it is unsurprising that it has caused the respondent some consternation that she has sought to amend her position, particularly the night before this hearing. The respondent has conducted itself, through its legal representative, in a professional manner by agreeing to continue with this hearing notwithstanding the late attempt to alter the basis of the pleadings. Nor is it surprising that the respondent is concerned that were this application to be granted, the claimant may well wish to continue to alter the basis of the claim in the future.

[100]The explanation given by the claimant for the last minute change of position is not a satisfactory one, nor one which is easy to understand. It is plain that the claimant consulted her solicitor in September 2020, and that there is no reason offered for the delay in achieving a full understanding of the position of Ms O’Donnell, whose name is mentioned in the ET1 as Operations Manager.

[101]In my judgment, therefore, there is no valid reason advanced for this late attempt to introduce new heads of claim, and averments as claims which had previously been adverted to only as background material. The delay caused is significant, and again there is no valid reason advanced for the delay.

[102]The nature of the amendment sought is significant, in my judgment, because it seeks to open up a long history of events which have not previously been included within the heads of claim. The timing and manner of the introduction of these paragraphs is unsatisfactory for the reasons given above. It is plain, in my view, that these acts cannot be said to form a series of continuing acts, because they have been carried out by a number of different managers, and it is unclear (and not pled) that Ms O’Donnell was the controlling mind behind these acts.

[103]The balance of prejudice would fall very heavily upon the respondent in the event that the application were granted, in my view. They would require to make inquiries into events which happened up to four years ago, and possibly longer, and it is likely that the evidence would be detrimentally affected by such a significant passage of time. The claimant would lose the opportunity to expand upon her pleadings, but in my judgment she will be allowed to proceed with those existing claims which she has already made to the Tribunal, and therefore her the prejudice to her will be limited. In any event, it would not be just to allow her to continue to expand her claim in this way, given the lengthy history of the proceedings.

[104]Accordingly, it is my judgment that the application to amend this claim, insofar as relating to paragraphs 1 to 8 of the 6 May Scott Schedule, should be refused, on the basis that it would not be in the interests of justice to allow it.

[105]Ms Goodman’s submission, with regard to the remaining paragraphs, was that all apart from paragraphs 9, 13, 17 and 20 required to be the subject of an application to amend. As a result, I infer from this that those paragraphs are not included within the objection taken by the respondent, and that they may be permitted to proceed to a final hearing.

[106]Paragraph 10 relates to an email sent to Susan McCarry by the claimant on 3 December (understood to be 2019), and the complaint made is that the claimant had no one to turn to for help. This email is not mentioned in the ET1, and therefore amounts to a new allegation not previously raised.

[107]Paragraph 11 covers email correspondence with Susan McCarry on 10 December 2019, again not mentioned in the ET1 and therefore seeking to introduce new allegations against the respondent.

[108]Similarly paragraph 12 appears to relate to the same correspondence or to similar failings on the part of the respondent. These are not specifically referred to in the ET1.

[109]Paragraph 14 refers to an email of 17 December 2019 from Natalie O’Donnell to the claimant with questions and answers. There is a reference in the ET1 which says “Natalie sent me questions about my long term sickness in December. I answered these by email, I also asked that the emails I had sent previously and to Susan McCarry be used to support.”

[110]Paragraphs 15 and 16 refer to emails sent on 6 and 7 January 2020, suggesting that certain failings within those emails amounted to failure to make reasonable adjustments, or harassment and victimisation. There was no reference to those emails in the ET1.

[111]Paragraph 18 and 19 refer to emails on 5 and 19 February 2020 from Ms O’Donnell, comprising conduct amounting to harassment and victimisation. Neither of those emails is referred to in the ET1.

[112]Paragraph 21 refers to the letter of 5 March 2020 advising her of her termination from employment. This is referred to in the ET1, though not specifically associated with any particular category of claim. In addition, the ET1 also makes reference to the letter received on 4 March in which she was told that she no longer worked for the central operations team.

[113]The nature of these amendments are, in this case, attempts to expand upon the narrative set out in the ET1 and classify the claims which are made by the claimant in this case. The claimant was required to set out her claims in a Scott Schedule, and with the assistance of her solicitor from September 2020 onwards, she did so, with suitable extensions of time within which to provide the information.

[114]The timing and manner of the application to amend, which in relation to these paragraphs from 9 onwards was their inclusion in the Scott Schedule of 9 November, appear to me to be a reasonable attempt to rationalise and clarify the claims which the claimant wanted to include within her original claim, as instructed by the Tribunal.

[115]While some of the emails specific to the Schedule within paragraphs 9 to 21 were not actually mentioned in the ET1, it is clear, in my view, that the claimant was expanding upon the complaints which the original claim form made clear, that is, that there were failures on the part of the respondent in communicating with her during her absence, and failures by a number of managers to support her in that absence.

[116]It is true that the claimant is now seeking to classify claims in a way which does not arise from the terms of the ET1, such as harassment and victimisation, but it is my view that these paragraphs amount to an expansion of the complaints in order to allow the respondent to have better notice of the claims made by her.

[117]I understand and sympathise with the points made by the respondent as to the strength or otherwise of the new claims which are put forward, but given the broad-ranging terms of the original ET1, it seems to me that the new claims, such as they are, simply build on the original case being made.

[118]As a result, it appears to me that the complaints made in paragraphs 9 to 21 should be admitted to the pleadings, on the basis that it would prejudice the claimant much more if they were to be excluded, while the prejudice to the respondent is minimal, since the facts being pled now relate to the same period as is covered by the ET1, and to the same areas covered by that claim form.

[119]I am acutely conscious that the claimant sought to present her claim in the ET1 without the benefit of legal assistance. To prevent her from classifying and clarifying those claims at this stage, in relation to these paragraphs, would in my judgment be unjust and unduly harsh towards her. There is no doubt that this claimant has put in a good deal of effort to presenting her claim, and has obtained the services of a solicitor in order to do so. The period covered by these paragraphs is broadly the same as that covered by the complaints in the ET1 and before the Tribunal, and accordingly since allegations relate to written correspondence, it does not appear to me to be beyond the reach of the respondent to be able to investigate and prepare for the claimant’s case as now expanded.

[120]It should be noted that I take on board the respondent’s concerns about the specification of the claims, and their misgivings about the process required to clarify these matters further, but in the circumstances it seems to me that it is likely that that process need not prevent the listing of the case for a hearing on the merits. Again, there may be issues of time bar arising from some of the claims, as the respondent suggests, and consideration will require to be given as to whether or not that should be dealt with at a separate Preliminary Hearing, particularly in relation to the question of whether there are in the remaining claims any outstanding issue about whether they are part of a series of continuing acts, which may require evidence to be resolved fully.

[121]Accordingly, I have concluded that the application to amend, insofar as relating to paragraphs 9 to 21 inclusive of the Scott Schedule presented on 6 May 2021 should be granted.

Introduction

[1]The Claimant has brought complaints of unfair dismissal and disability discrimination against the Respondent. The discrimination claims relate to 13 alleged acts of discrimination set out in a Scott Schedule which are said E.T. Z4 (WR) to amount to a range of prohibited conduct; discrimination arising from disability, breach of the duty to make reasonable adjustments, harassment and victimisation. The Respondent concedes that, at the relevant time, the Claimant was disabled as defined in the Equality Act but they resist the claims on the substantive issues.

[2]The Tribunal heard evidence at a final hearing which took place remotely by way of Cloud Video Platform (CVP) on 6-10 December 2021 and 7-8 February 2022. Parties then lodged written submissions and the Tribunal met to deliberate on 28 February 2022. Preliminary issues

[3]At the start of the hearing on 6 December 2021, the Tribunal addressed a number of preliminary issues including strike-out applications by the Respondent in respect of claims for deduction of wages and case management issues clarifying the issues to be determined at the hearing. The Tribunal set out its decision on these matters in an earlier judgment dated 20 January 2022 and does not intend to repeat the contents of that earlier judgment which is referred to for its terms.

[4]Prior to the continued hearing on 7 February 2022, the Tribunal received a number of pieces of correspondence from the Claimant (which generated correspondence from the Respondent in reply) which had to be addressed at the outset of the hearing.

[5]First, the Claimant lodged what was described as an “impact statement” which set out various matters relating to her disability, its effects on her and the effect which the Respondent’s alleged conduct was said to have had on the Claimant. The Tribunal was not clear as to the purpose of this document given that the Respondent had conceded she was disabled at the relevant time and the hearing was only going to deal with liability with remedy reserved to a further hearing if required.

[6]The Claimant explained that she had been advised to produce this after seeking legal advice in the period between the two hearing diets. She said that it was intended to support her claim and explain how her condition affected her.

[7]The Respondent opposed the impact statement being introduced at this late stage. Witness evidence was being given orally and not by witness statement.

[8]The Tribunal was mindful of the Claimant’s party litigant status and she was clearly following advice she had been given. The Tribunal did not consider that this was “evidence” in the sense of a new contemporaneous document being introduced at a very late stage but was a document produced for the purposes of the claim akin to a witness statement. In keeping with the Overriding Objective, the Tribunal decided that it would be appropriate to allow the Impact Statement to be lodged to form part of the Claimant’s evidence-in-chief with the caveat that it had no special status and would be treated in the same way as any oral evidence given on the same matters.

[9]Second, the Claimant had sought an Order for production of a document from the Respondent described as an occupational health report from 2016. The Respondent opposed this application, primarily because they could not find any such document in their archives and also given the lateness of the application coming after their witnesses had given their evidence and they had closed their case.

[10]The Tribunal refused the application on the basis that it was not in keeping with the interests of justice to order a party to produce a document which is not in their possession. However, even if the document had been available, the Tribunal would have refused the application given how late it was being made, coming after the Respondent had closed their case and this document had not been put to their witnesses.

[11]The Tribunal clarified that either party could make submissions about the fact that this document could not be found and the Tribunal would consider what weight, if any, to give to any such submissions.

[12]Finally, the Claimant had lodged two documents described as “skeleton argument” and “legal submissions” which she clarified formed her written submissions. The Tribunal had noted that these documents, on the face of it, sought to expand her discrimination claims beyond the 13 alleged acts of discrimination set out in the Scott Schedule at pp90-95 of the bundle.

[13]The Claimant explained that this was not her intent and that she had, in trying to summarise matters, inadvertently created this impression. She confirmed that her discrimination claim only related to the matters set out in the Scott Schedule.

Evidence

[14]The Tribunal heard evidence from the following witnesses:-a. The Claimant.

b. Karen Lightfoot who was the Claimant’s line manager at the time her absence began.

c. Susan McCarry who managed the Claimant’s absence.

d. Natalie O’Donnell who made the decision to dismiss the Claimant.

e. David Laverie who dealt with a grievance raised by the Claimant during her absence.

[15]There was a bundle of documents prepared by the Respondent which contained the vast bulk of the documents to which the Tribunal were taken during the evidence. Page numbers below are a reference to page numbers in this bundle.

[16]The Claimant produced a supplementary bundle which was unpaginated. Where reference is made to any document in this bundle then it will be described in full.

[17]This was not a case where there was a significant dispute about the relevant facts relating to the absence management process followed by the Respondent leading to the Claimant’s dismissal.

[18]Any dispute which arose was not, for the most part, about what happened or what was said in meetings or correspondence but about how these should be interpreted or perceived. There were a number of instances where the Claimant had a genuine but mistaken perception or interpretation of what had been said in correspondence that was not borne out by any plain and reasonable reading of the relevant correspondence when considered in context. The Tribunal will set out this out in more detail in its decision below.

[19]Where there was any dispute of fact about what was said at any of the meetings which were held in relation to the Claimant’s absence, the Tribunal preferred the evidence of the Respondent’s witnesses which was supported by contemporaneous notes.

[20]There are two matters relating to the relevance of evidence which the Tribunal requires to address.

[21]First, the Claimant makes various complaints about the conduct of her union representative which, on the face of it, she seeks to attribute to the Respondent. For example, much of her complaints about the first wellness meeting arise from what is said to be a failure by her union representative to properly explain what that meeting was involved. There are similar complaints about what was said to her in relation to the grievance meeting. The Respondent is not liable for the actions of this individual in his role as a union representative and so any evidence about what he may or may not have said to the Claimant about these meetings is not relevant to the questions of whether the Respondent has acted unlawfully (either in terms of the unfair dismissal claim or the claims under the Equality Act).

[22]Second, the Claimant led evidence and made submissions about events which occurred some time ago. It is quite clear to the Tribunal that these matters were of great significance to the Claimant and she clearly considered that these were connected to the claims which were before the Tribunal. However, other than providing background information, the Tribunal did not consider that these issues were relevant to the matters which it had to determine; the managers involved in the earlier matters were not involved in the absence management process; similarly, the managers involved in the absence management process were not involved in the earlier matters; there was no evidence before the Tribunal that those earlier matters had any bearing on how the absence management process was conducted or on the ultimate decision to dismiss the Claimant.

[23]In these circumstances, the Tribunal does not intend to make any findings of fact about these earlier matters and they have not had any bearing on its decision relating to the claims to be determined. Findings in fact

[24]The Tribunal made the following relevant findings in fact.

[25]The Claimant started her employment with the Respondent on 14 December 2015 in the role of customer services representative. She initially worked in a telephone-based role in the Respondent’s fraud prevention team. She then worked in an office role in the fraud chargeback team before returning to a telephone-based role in the fraud prevention team.

[26]The Claimant commenced a period of sickness absence in July 2018 which continued until her dismissal in February 2020. The Claimant had had previous periods of absence from work due to health reasons.

[27]The Claimant’s final period of absence arose from circumstances where her manager at the time, Karen Lightfoot (KL), sent emails to staff in her team with feedback on calls which KL had reviewed. The purpose of the email was to provide something in advance of one-to-one meetings to discuss what had gone well in the calls and what could be improved.

[28]The Claimant was upset at the feedback which she received. KL met with the Claimant on the same day that the feedback was sent and the Claimant stated that she did not appreciate the email and was worried about it. The Claimant went home early and called in sick the next day. She then commenced a period of sickness absence which continued for the rest of her employment. This absence was covered by a sequence of fit notes from the Claimant’s doctor which started with the fit note at p265.

[29]A meeting was arranged between the Claimant and KL to take place on 14 September 2018. This meeting was described in evidence as a “wellness meeting” or as “absence catch up”. There were options for this meeting to take place in the office, at the Claimant’s home or some mutually agreed location; it was agreed that this would take place in the café at the Tesco store in Maryhill, Glasgow.

[30]The meeting took place as planned with the Claimant and KL present along with Cat Robinson as a note taker. A note of the meeting is at pp269-271. KL started the meeting by asking the Claimant how she was feeling. The Claimant replied explaining that she was very tired and had a four week sick line, she was to be reviewed by her GP on 4 October and described having pain in her chest and hands.

[31]There was a discussion about the Claimant’s condition in which she explained that she was attending counselling. KL asked whether the Claimant had thought about whether she would want to return to the same role or to a different one when she came back to work. The Claimant replied that she did not know and that she had talked about this with her union representative.

[32]The Claimant went on to describe how she had felt on receiving the feedback from KL which had triggered her absence explaining that it made her feel anxious and in a panic. KL went on to explain that the feedback was given to everyone in the same way. The meeting continued with a discussion of previous roles held by the Claimant and how she might be affected by work. During the course of the meeting, the Claimant signed a form (p268) authorising the Respondent to obtain an occupation health report.

[33]The Claimant found this meeting to be upsetting. The Tribunal should record that this was not how KL perceived the meeting. The Claimant, however, was upset at having to discuss the matters which arose in the meeting and had not understood from her discussions with her trade union representative that this is how this meeting would proceed.

[34]The Claimant decided to raise a grievance about the September meeting and did so through her union representative. She provided an email to her representative dated 17 October 2018 which he forwarded to Joyce Mason (HR) to initiate the grievance (pp277-279).

[35]David Laverie (DL), who at the time was a customer service manager in the Respondent’s customer service team, was appointed to investigate the grievance. He met with KL and Cat Robinson to take statements from them (pp282-285).

[36]Whilst the grievance process was continuing, the Respondent received an occupational health report dated 13 November 2018 (pp286A-B). The report confirmed that the Claimant had been absent due to severe anxiety and depression and that she described a number of work-related matters which had caused her stress including the meeting which was the subject of the grievance. The report stated that a conclusion of the grievance process as soon as possible to remove this as a source of stress would be desirable and that the Claimant was fit to attend meetings regarding this if certain adjustments, such as extra time or breaks, were allowed.

[37]The report goes to state that no adjustments which would assist in a return to work could be identified and neither could a date for a return to work with the prognosis being unclear.

[38]DL met with the Claimant and her union representative in relation to her grievance on 5 December 2018 and a note of this meeting is at pp287-291.

[39]The outcome of the grievance was communicated to the Claimant by a letter from DL dated 5 February 2019. He concluded that, whilst the Claimant had a genuine perception that she had been treated unfavourably at the September meeting, there was no inappropriate conduct by KL. He did accept that well-intended comments could inadvertently cause upset and so feedback would be given to KL to consider other’s perceptions of what is being said.

[40]DL decided that it would be appropriate to appoint a different manager to deal with the Claimant’s absence to try to rebuild trust. He appointed Susan McCarry (SMcC) to provide support to the Claimant.

[41]The letter of 5 February 2019 concluded by advising the Claimant of her right to appeal explaining that she should do so within 7 days. The Claimant sent an email to DL on 18 February 2019 (pp326-327) advising that she wished to appeal, asking for more information about the process and indicating that she would be asking for external help.

[42]DL replied by email dated 20 February 2019 (pp325-326) providing more detailed information about the process. The Claimant then sent an email dated 11 March 2019 (pp323-325) setting out the detail of the basis of her appeal. DL replied on 18 March (p323) advising that the next step would be for a manager to be appointed to investigate the appeal. The Claimant replied by email of the same date (p322) stating that she would look at what DL had written and would get back to him under explanation that she needed help with her grievance. This sequence of correspondence concludes with an email from DL dated 18 March 2019 (p321) advising that he appreciated that the Claimant would want to engage with her health professionals and other support so he would not arrange any further meetings in relation to the appeal until the Claimant had come back to him as she had said she would.

[43]In the event, the Claimant did not pursue the appeal for some time. The next mention of the appeal was in an email from the Claimant to SMcC dated 10 December 2019 (pp349-350) where she comments that DL had allowed her 10 months to progress the appeal. At this point, a more senior manager, Natalie O’Donnell, was managing the Claimant’s absence and in an email dated 17 December 2019 (pp366-367) she offered the Claimant a final opportunity to progress the appeal. The Claimant was given 7 days to respond confirming whether or not she wished to take the appeal further and she did not do so.

[44]Returning to the chronology of the absence management process, SMcC made first contact with the Claimant on 19 March 2019. SMcC kept a contemporaneous log of her contacts with the Claimant which was produced at pp304-312. The Tribunal does not intend to set out the detail of this log, which is referred to for its terms, but does note that it shows SMcC making contact with the Claimant on a regular basis during the period April to August 2019.

[45]A further occupational health report was obtained by the Respondent dated 20 August 2019 (pp329-330). This report explained that the Claimant continued to describe mental health symptoms which adversely impacted her day-to-day life and that she had recently been diagnosed with severe social anxiety. The report confirmed that the Claimant remained unfit for work and that no date for a return to work could be identified. It was suggested that more information could be obtained from the Claimant’s GP that might clarify the position and that the Claimant had given consent to the occupational health doctor to contact her GP in relation to this.

[46]A further wellness meeting was held on 13 September 2019. The Claimant was accompanied by her son and SMcC attended along with a note taker. The note of the meeting is at pp332-334:-a. SMcC asked the Claimant how her counselling had been going and she replied that she had been referred for cognitive behaviour therapy which was due to start next week. She explained that her doctors believed she has social anxiety which had not been diagnosed previously.

b. There was a discussion of the occupational health report from August and the Claimant confirmed that her GP had provided a response to the request for further information.

c. The Claimant stated that the occupational health doctor had assumed that the Respondent would terminate her employment. SMcC explained that dismissal would be the last resort if the Claimant could not return to work and they would think about any adjustments that could support her back to work.

d. There was a discussion about the effects of the Claimant’s condition and she explained that she could sometimes get confused or forget conversations. She preferred to have things written down. SMcC said that going forward she would email the Claimant before contacting her and that the Claimant could email a copy of her fit notes if that was easier for her.

[47]A copy of the minutes were sent to the Claimant by SMcC by email dated 24 September 2019 (Claimant’s bundle).

[48]The Respondent received a further letter from the occupational health doctor dated 16 September 2019 (p335) confirming receipt of the report from the GP and recommending a further review in the next few weeks.

[49]On 9 October 2019, SMcC had a telephone conversation with the Claimant seeking her consent for a further occupational health appointment. During this conversation, the Claimant advised SMcC that she had not looked over the note from the previous meeting between them and wanted to go through these with her son. SMcC advised the Claimant that if she had any changes she wanted to make then she could let her know.

[50]A further occupational health review took place on 23 October 2019 and the occupational health doctor’s findings were set out in a letter of the same date (pp338-339). The letter states that it is the doctor’s opinion that the Claimant remained unfit for work in any capacity and that a “near or clear return to work date” could not be given.

[51]SMcC spoke to the Claimant on 29 October 2019 after receipt of the occupational health report and advised her that the next stage would be a final absence meeting that could lead to dismissal. She raised the possibility of a career break as an alternative. This discussion was followed up by an email of the same date (p340) which enclosed more information about a career break and gave the Claimant a template version of an invite to a final absence meeting. The email also gave the Claimant details of ACAS as a source of independent legal advice.

[52]The Claimant did not pursue the option of a career break.

[53]By letter dated 25 November 2019 (pp341-342), SMcC confirmed to the Claimant that the next step would be a formal absence meeting and that this would be conducted by a Work Level 2 manager in line with the Respondent’s policies. The manager in question was identified as Natalie O’Donnell (NOD). The letter goes on to note that the Claimant had previously indicated that she was not fit to attend such a meeting and offers options for this to be postponed if the Claimant was likely to become fit in the near future, to conduct it by telephone if she was not able to attend in person or to conduct it in the Claimant’s absence with her providing anything she wished to raise in writing.

[54]The Claimant replied to this by email dated 3 December 2019 (p343). The Claimant makes complaints about a lack of continuity in terms of who had dealt with different meetings and confirms that she could not come to any meeting as she was not well enough to attend.

[55]By letter dated 10 December 2019 (pp345-346), sent to the Claimant by email that day, NOD introduces herself to the Claimant and explains her role in the process. She acknowledges the Claimant’s position that she is unable to attend meetings and again offers the options of conducting the meeting by telephone or by way of written statements in the Claimant’s absence. The letter summarises the current position in relation to the Claimant’s absence and advises that a meeting has been arranged for 12 December 2019 to discuss matters further which the Claimant can attend in person, by phone or by way of written submissions. Further information about this meeting, including the Claimant’s right to be accompanied, the purpose of the meeting and the possibility that the Claimant could be dismissed, is also provided. The letter concludes by inviting the Claimant to contact NOD if she has any questions or concerns.

[56]The Claimant emails SMcC regarding the letter from NOD at 23.10 on 10 December 2019 (pp349-350). This email states that the Claimant will not attend the meeting on 12 December 2019 due to her health. It goes on to set out various complaints about the first wellness meeting in August 2018 which were the subject of the Claimant’s grievance, complaints about management and the trade union and a statement that the Claimant’s trust in the Respondent was gone. The Claimant asks whether she should have ensured that her and her son’s points from the meeting in September 2019 had been included in the minutes of that meeting. The Claimant also complains about the involvement of NOD as being someone she has never met before and not being “professional HR”. The email asks a rhetorical question about what support the Claimant had been offered other than the extended period to appeal her grievance. The email concludes with the Claimant confirming that she is willing to answer any questions in writing and indicates that she would “respond fully”.

[57]The Claimant received an automated out of office response to this email and so at 23.16 on 10 December she forwarded the email to DL. The email was sent on to NOD on 11 December who replied by email dated 12 December 2019 at 10.36 (p351). She explains that the absence policy requires that a certain level of manager leads any long term absence meetings as the reason why she has now become involved in the process. NOD notes that the Claimant is willing to answer questions in writing and so NOD informs the Claimant that she will prepare a list of questions and send those to her as soon as possible giving a timescale to reply. NOD goes to state that she will take account of the answers to those questions and the other information available to her (including the occupational health reports, any previous meetings and the content of the Claimant’s emails) in considering her decision. The email confirms that the meeting planned for that day would not go ahead and concludes by confirming that NOD should be the Claimant’s main point of contact from now on.

[58]On 17 December 2019, NOD sends an email to the Claimant (pp366-367) with questions about her current health position. The content of the email are referred to for its terms and, in summary, NOD asks if the Claimant agrees with the assessment of the occupational health doctors that she was not fit to return to work, what role she would see herself in if she did return, what the Respondent could do to help her feel supported, what effect her treatment was having and how her conditions affected her generally. The Claimant was asked to respond within 7 days.

[59]The Claimant replied by email dated 18 December 2019 (p366) referring NOD to “my previous emails” which she said answered these questions.

[60]NOD replied to this by email dated 13 January 2020 (p369) acknowledging that the Claimant had provided information in the past but explaining that she was seeking to understand the current position in case things had changed. She offered to call the Claimant or meet face to face if that would assist. The email concluded by asking for a response within a further 7 days.

[61]The Claimant replied by email dated 15 January 2020 (p369) stating that she can answer some of the questions and again referring to previous emails as demonstrating the struggles she had had with her health. The Claimant had embedded her answers in NOD’s email of 17 December so that it could be seen which answer related to which question (pp370-371). The answers from the Claimant were very brief, mostly falling into two responses; that she was following the advice of her doctor and mental health worker; that she could not answer the question.

[62]Whilst the absence management process was continuing, an issue arose with the Claimant’s pay. Payments were made to her by the Respondent in November and December 2019 which, it is common ground, were made in error because the Claimant had exhausted her entitlement to sick pay by this time.

[63]The Claimant emailed NOD regarding this issue on 16 December 2019 (p364) explaining that this had impacted on her Universal Credit payments and asking NOD to look into this.

[64]NOD contacted the Respondent’s Colleague Help Team regarding this issue. This was done through an online portal rather than by email and there was not an email address which she could provide to the Claimant for direct contact to be made. A response was received by her which she communicated to the Claimant by email dated 6 January 2020 (pp363-364). NOD had copied and pasted the response she had received into an email to the Claimant and asked the Claimant to provide details of any financial impact on her so that this could be remedied by the Respondent.

[65]On 27 January 2020, the Claimant emailed NOD (p362) regarding this issue asking for contact details for “payroll” so she could speak to them directly. She explained that she did not have log in details, payslips or other information about any new payroll system. NOD replied by email approximately an hour later (p362) providing a phone number for Colleague Help who could give her information on the new system that would allow her access to her payslips.

[66]On the same day, the Claimant contacted Lauren Coyle (HR) regarding this issue and received an out of office reply.

[67]On 5 February 2020, there is a further exchange of emails between the Claimant and NOD regarding this issue as follows (pp353-354):-a. At 14.48, the Claimant emails Ms O’Donnell to say that she is still waiting for access to payroll.

b. At 14.57, Ms O’Donnell replies asking the Claimant if she had been able to contact Colleague Help to arrange this. She also confirms that she had ordered the Claimant’s pay slips to be sent to her and asked if these had been received.

c. The Claimant replies at 15.02 to say that she had advised Ms O’Donnell of her illness and difficulties.

d. At 15.04, Ms O’Donnell replies to the Claimant stating that she had provided the Claimant with the contact details for Colleague Help and asking if the Claimant was not able to do this.

e. The Claimant replies at 15.21 to say that, if Ms O’Donnell had read her previous emails, she would see that the Claimant could not do this.

f. Ms O’Donnell replies at 15.48 to say that she had read these emails and had understood from them that the Claimant did not want unnecessary contact but not that this meant that she could not make contact to make these arrangements.

g. At 16.41, Ms O’Donnell emails the Claimant to confirm that she has now spoken to Colleague Help to make arrangements for the Claimant to have the access she was seeking to her pay information. She also confirms that the Claimant’s payslips had been posted to her and should be received within 5-7 days.

[68]On 16 February 2020, the Claimant emails NOD to advise that a further payment has been made to her in error (p359). NOD raises this with Colleague Help and emails the Claimant on 17 February 2020 (p352) to apologise and confirm that she was taking steps to have the issue resolved.

[69]On 18 February 2020, the Claimant emails NOD (pp368-369) to say that she has not heard anything about “this”. In the context of the chain of emails, this is a reference to the absence meeting that was to be held in the Claimant’s absence.

[70]NOD replies by email on 19 February 2020 (p368) to say that the meeting had taken place and the outcome would be issued in the next week.

[71]On 28 February 2020, the Claimant emails NOD to say that she has not received anything and NOD replies shortly after that to apologise for the delay which she attributes to her being on leave. She states that the letter confirming the outcome of the absence meeting would be posted that day.

[72]On 4 March 2020, the Claimant received a letter from the Respondent’s central services confirming that her employment had come to an end. This was not the letter referred to by NOD in her email of 28 February and was a letter automatically generated by the Respondent’s systems when an employee leaves employment.

[73]On 5 March 2020, the Claimant received a letter from NOD dated 28 February 2020 (pp378A-B) setting out the reasons for her decision to dismiss the Claimant. The letter confirms that the absence management meeting took place on 10 February 2020 in the absence of the Claimant under explanation that the Claimant had indicated that she would be unable to attend any meeting and she knew the meeting would go ahead in her absence,

[74]The letter goes on to set out a summary of the process followed in relation to the Claimant’s absence highlighting the meetings which had been held during this time and the most recent opinion from the occupational health doctor. NOD confirmed that she had carried out a review of “a review of all meeting notes, email interactions, occupational health reports and calls since the start of your absence” and taken into account the length of the Claimant’s absence and the lack of a foreseeable date of a return to work. NOD confirms that she has concluded that there was no reasonable prospect of the Claimant returning to work in the near future nor were there any adjustments which could be made to support a return. NOD took particular account of the most recent occupational health assessment and the Claimant’s own view of her condition in reaching this conclusion.

[75]In these circumstances, the letter explains that NOD had decided to dismiss the Claimant in the grounds of ill health capability with the date of dismissal being 28 February 2020.

[76]The letter goes on to set out details of the Claimant’s pay in lieu of notice and gives details of how she can exercise her right of appeal. In the event, the Claimant did not appeal the decision to dismiss her. Respondent’s submissions

[77]Counsel for the Respondent lodged submissions setting out what were considered to be the relevant legal provisions ahead of the continued hearing in February 2022. For the sake of brevity, the Tribunal does not intend to repeat these which were not disputed by the Claimant and they have been noted.

[78]After the evidence was heard, the Respondent lodged further written submissions specific to the issues in this case.

[79]The submissions begin by noting that there is very little dispute on the material facts but, where there was any dispute, it was submitted that this should be resolved in favour of the Respondent. Although the Claimant disputed the accuracy of various documents, it was submitted that she could often not remember whether the matters noted in those documents were said or not.

[80]No criticism of the Claimant is intended by this submission given the severe stress and anxiety she was experiencing; it was submitted that these difficulties impacted on her recall of events and undermines the reliability of her evidence.

[81]Turning to the claim of unfair dismissal, it is submitted that the reason for dismissal is set out in the letter of dismissal dated 28 February 2020 as being ill health capability. It was noted that two versions of this letter emerged during the evidence but that the reason for dismissal is the same in both versions.

[82]It was submitted that the Respondent made the decision to dismiss in circumstances where the Claimant had been absent for a period of 19 months and the medical evidence confirmed there was no foreseeable date for a return to work in any capacity.

[83]There was no evidence led to suggest that dismissal was for any other reason than that given in the letter of dismissal.

[84]It was, therefore, submitted that the Respondent has demonstrated that there was a potentially fair reason for dismissal in terms of s98(1)(a) & (b) ERA.

[85]Turning to the reasonableness of the decision to dismiss, it was submitted that there were two key elements to this; whether the Respondent could be expected to wait any longer for the Claimant to return; whether a fair procedure was followed.

[86]In relation to the first element, the submissions set out the various factors which the Tribunal has to take into account including the likely length of the absence, whether other employees are available to carry out the work, the continuing cost of employing the absent worker and the size of the organisation.

[87]It was accepted that the Respondent was a large organisation with other staff available to carry out the work but it was submitted that this was outweighed by the other factors in this case; the long period of time which the Claimant had been absent (when considered in the context that she had only been employed for four years); the absence of any foreseeable return to work.

[88]In particular, the nature of the Claimant’s illness making it unlikely that she could ever return to work given that the trigger for her absence was an email providing feedback on her work which led to her, on her own evidence, walking out of work and not returning. Once she was absent, the Claimant met with her manager (a reference to the wellness meeting) which resulted in a grievance. These were said to be inherent elements of working for the Respondent which would always be present. The Claimant herself indicated on more than one occasion that she did not want to return to work.

[89]The Respondent continued to owe duties to the Claimant as an employee even when she was absent and this situation could not continue indefinitely.

[90]In these circumstances, it was submitted that the Respondent could not be expected to wait any longer for the Claimant to return. It was noted that at no point during her absence had the Claimant expressed a desire to return.

[91]In terms of fair procedure, the submissions set out the matters which it was said the Tribunal should take into consideration; consultation with the employee; medical investigation; consideration of other options.

[92]It was submitted that any form of consultation with the Claimant was difficult; the first meeting after her absence resulted in a complaint; at the grievance meeting the Claimant stated that she did not believe what Mr Laverie was telling her and that she did not trust anyone from the Respondent’s organisation.

[93]Despite these difficulties, the Respondent continued to engage with the Claimant. Reference was made to the steps taken by Ms McCarry to contact the Claimant as set out in her log which included occupational health reports, a wellness meeting, the offer of a career break, an invite to the final absence meeting and the offer of written submissions as an alternative to that meeting.

[94]In relation to the medical investigation, reference was made to the occupational health reports obtained by the Respondent which included a review of the Claimant’s medical records and the conclusion of the last report that the Claimant was medically unfit for work in any capacity and that the doctor could not identify a date for a return to work.

[95]It was submitted that the Respondent did take steps to encourage a return to work when they changed the Claimant’s manager after her grievance. The options for the Respondent were limited given the conclusion that the Claimant was unfit for work in any capacity but an offer of a career break was made.

[96]In these circumstances, it is said that the procedure followed was fair and any criticism of the process would not render the dismissal unfair.

[97]For all these reasons, it was submitted that the Claimant’s dismissal was fair.

[98]The submissions then turn to the claims of disability discrimination. It is noted that the allegations of discrimination are set out in the Scott Schedule at pp90-96 and fall into two broad categories; issues regarding a point of contact whilst the Claimant was absent; issues arising from a payroll error.

[99]The submissions then address each of the allegations in turn:-a. The first allegation related to a failure by the Respondent to revise minutes of the meeting on 13 September 2019 when requested. In her evidence, the Claimant accepted that she did not send an email making such a request and so it was submitted that there could be no discrimination in respect of this matter.

b. The second allegation relates to an email sent by the Claimant on 3 December 2019 which she complains was not read until 10 December. It is alleged that having only one point of contact amounted to discrimination. It was submitted that the email did not require a response; it did not ask for information and stated that the Claimant would not attend any further meetings. The lack of a response to an email that did not require one cannot amount to discrimination. It was not credible that the Claimant had only one point of contact; she was able to contact someone else and there was evidence heard about a helpline which the Claimant contacted in the past. It was noted that the Claimant had been absent for 17 months at this point and there had been no prior issue with only having one point of contact.

c. The third allegation is said to be largely the same complaint as the second allegation and the same points are relied upon. The submissions set out the sequence of email contact relevant to this issue and it is submitted that this does not amount to a disadvantage to the Claimant.

d. The fourth allegation relates to email correspondence on 10 December 2019 and reference is made to the sequence of emails to support the proposition that this cannot be reasonably described as a delay. In any event, this does not amount to a practice and there is no evidence of this being done intentionally.

e. The fifth allegation arises from the payroll error which Ms O’Donnell accepted was the Respondent’s error. The submissions set out the steps taken by Ms O’Donnell to rectify the error. It was submitted that this was an error which had consequences for the Claimant but there was no causal link between the Claimant’s disability and the error.

f. The sixth allegation relates to Ms O’Donnell asking the Claimant to provide further information regarding her health and the complaint of discrimination relates to the 7 day period for the Claimant to reply being too short. It was submitted that the questions were clear, concise and capable of being answered and the Claimant was given to 15 January 2020 to respond. In these circumstances, it was said that the Claimant was not placed at a disadvantage.

g. In relation to the seventh allegation (the submissions refer to as the eight item in the Scott Schedule but this is either a typographical error or is a reference to the fact that there was an allegation which was deleted from the Schedule but still appeared in the “track changes”), it was submitted that any suggestion that the payroll error was discrimination is artificial. The contact made by Ms O’Donnell with the Claimant in relation to this issue had the purpose of seeking to rectify the error and ensure there was no financial detriment to the Claimant. There was no discrimination in this. The Claimant may have perceived that this amounted to harassment but the Tribunal need to find that it was reasonable for the conduct to have that effect. There was also no causal connection with the Claimant’s disability.

h. The eighth allegation relates to an email of 7 January 2020. Reference is made to the whole correspondence of which this email forms a part and it is submitted that, properly construed, this email was seeking to allow the Claimant to participate in the final absence meeting by writing. Rather than being an act of discrimination, it was seeking to assist the Claimant. In terms of victimisation, it was submitted that the Claimant had not carried out a protected act.

i. In relation to the ninth allegation, it was submitted that this related to the payroll issue and reference was made to what had already been said regarding this. In any event, the email on which this allegation was based was not produced in evidence.

j. The same reference to earlier submissions was made in respect of the tenth allegation on the basis that it also related to the payroll issue.

k. As regards, the victimisation claim in respect of the eleventh allegation, it was again submitted that no protected act had been carried out by the Claimant. It was also submitted that the email in question had to be read in its proper context and there was no connection between any alleged delay and the Claimant’s disability.

l. In relation to the twelfth allegation, it was submitted that the Claimant was aware that she would receive the outcome of the final absence meeting and was aware that this decision was to be made in her absence.

m. To the extent that the thirteenth allegation relates to alleged errors in the letter of dismissal, it was submitted that this was addressed in evidence when it emerged that there were two versions of the letter. Any errors in the letter cannot be said to discrimination arising from the Claimant’s disability.

[100]Whilst there may have been some errors in the dismissal process, it was submitted that these cannot be said to have arisen in consequence of the Claimant’s disability and there required to be a causal link between the disability and the alleged acts of discrimination. Claimant’s submissions

[101]The Claimant produced two documents, one entitled “skeleton argument” and the other entitled “legal submissions”, which, read together, formed her submissions.

[102]Much of both of these documents are involved in setting out the facts of the case on which the Claimant relied. The Tribunal has set out its findings in facts above and so, for the sake of brevity, it does not intend to repeat itself. It has noted the findings of fact that the Claimant has invited the Tribunal to make.

[103]The documents also contain submissions and assertions about matters which do not form part of the Claimant’s discrimination claims as set out in the Scott Schedule. For example, there are various comments in relation to the duty to make reasonable adjustments where it is alleged that the Respondent did not make adjustments which would have assisted the Claimant to return to work such as an alternative role. Similarly, there are assertions that the Claimant was singled out because she had brought complaints against managers in the past or that the grievance process followed in 2019 did not follow ACAS guidelines. However, these matters do not form part of the Claimant’s pled case and so the Tribunal does not intend to set these out.

[104]In relation to the absence management process and other matters which occurred during her absence, the Claimant raises the following issues as supporting her unfair dismissal and discrimination claims:-a. There was no attempt to identify the reasons for the Claimant’s absence and find a role to which she could return to work.

b. Susan McCarry is said to have suddenly disappeared from the process with no explanation.

c. The Claimant was isolated with no-one to turn to for assistance other than Susan McCarry.

d. The Claimant was subjected to treatment by Natalie O’Donnell which made her feel degraded and humiliated. Ms O’Donnell isolated the Claimant and provided information or made requests in ways which created anxiety for the Claimant.

e. There was no support or information provided to the Claimant when she needed assistance. It was submitted that access to HR was blocked and the Claimant was asked to make contact by telephone.

f. It was submitted that the process was intentionally delayed.

g. Having to communicate with the head of the department meant that the Claimant was intimidated.

h. The decision to dismiss and the process followed was not reasonable. In particular, the email and questions from Ms O’Donnell.

i. The dismissal letter is said to be full of inaccuracies.

j. The PCP of only providing one point of contact placed the Claimant at a substantial disadvantage because it exacerbated her illness.

k. The PCP of providing only 7 days for the Claimant to respond to an invitation to a final absence meeting place the Claimant at a substantial disadvantage because it implied she would be dismissed and this increased her anxiety.

[105]The Claimant was given the opportunity to make comments on the submissions made on behalf of the Respondent but indicated that she had no comments to make.

Relevant Law

[106]The test for unfair dismissal can be found in s98 of the Employment Rights Act 1996 (ERA).

[107]The initial burden of proof in such a claim is placed on the Respondent under s98(1) to show that there is a potentially fair reason for dismissal. There are five reasons listed in s98 and, for the purposes of this claim, the relevant reason is capability.

[108]The test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.

[109]Where the issue of capability relates to a medical condition then a proper investigation would involve an employer gathering evidence about the effects of the condition and the prognosis of how long these are likely to last. This can include evidence from medical advisers (East Lindsey District Council v Daubney

[1977] IRLR 181

) but should also involve discussion with the employee.

[110]On the question of whether the procedure followed by the employer was reasonable, the case of Sainsbury’s Supermarket v Hitt

[2003] IRLR 30

is authority for the proposition that the band of reasonable responses test applies to conduct of the process leading to dismissal.

[111]In considering whether dismissal was a fair sanction then the Tribunal applies the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer.

[112]An employer should consider alternatives to dismissal (Merseyside and North Wales Electricity Board v Taylor

[1975] IRLR 60

) such as alternative roles which the employee may be capable of performing. However, in the context of an unfair dismissal claim, there is not a requirement for the employer to create a role for the employee (Taylorplan Catering (Scotland) Ltd v McInally

[1980] IRLR 53

[113]The employer’s need for employees to be fit to carry out their duties can be an important factor in determining whether any dismissal is fair (Taylorplan). This can be even more significant where such requirements are a term of the contract (see, for example, Leonard v Fergus and Haynes Civil Engineering Ltd

[1979] IRLR 235

[114]Disability is one of the protected characteristics covered by the Equality Act 2010 and section 6 of the Act defines disability as a physical or mental condition which has long-term, substantial adverse effects on a person’s day-to-day living activities.

[115]The definition of discrimination arising from disability in the 2010 Act is as follows:- “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[116]In order for there to be unfavourable treatment, the Claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL).

[117]Guidance as to how to apply the test under s15 was given in Pnaiser v NHS England

[2016] IRLR 170

, EAT:-a. Was there unfavourable treatment and by whom?

b. What caused the treatment, or what was the reason for it?

c. Was the cause/reason 'something' arising in consequence of the Claimant's disability? This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator.

d. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.

[118]In terms of justification, the EAT in MacCulloch v ICI

[2008] IRLR 846

set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP

[2013] IRLR 941

:- ''(1) The burden of proof is on the Respondent to establish justification: see Starmer v British Airways

[2005] IRLR 862

at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84)

[1984] IRLR 317

in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL)

[1987] IRLR 26

per Lord Keith of Kinkel at pp.30–31. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.''

[119]The duty to make reasonable adjustments is set out in s20 of the Equality Act with s21 making a breach of the duty an unlawful act. The relevant provisions of s20 are:- “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice (PCP) of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) …

(5) …

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.”

[120]Schedule 8, paragraph 20(1)(b) of the Equality Act states that an employer is not subject to the duty if they did not know or could not reasonably know that the Claimant is disabled or that they would be likely to be placed at the disadvantage referred to in s20(3).

[121]In relation to the duty to make adjustments, the degree to which any adjustment would overcome the disadvantage to the Claimant is relevant to whether the adjustment is reasonable (HM Prison Service v Johnson

[2007] IRLR 951

). Further, the duty is intended to integrate disabled people into the workplace and this is also relevant to whether any adjustment is reasonable (O'Hanlon v Revenue and Customs Comrs

[2007] IRLR 404

[122]Unlike the position for unfair dismissal claims, the duty to make reasonable adjustments can require an employer to create a role for the disabled employee in exceptional circumstances (Chief Constable of South Yorkshire Police v Jelic

[2010] IRLR 744

[123]Harassment is defined in s26 of the Equality Act 2010:- “Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) …

(3) …

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are— … disability; …”

[124]In Hartley v Foreign and Commonwealth Office

UKEAT/0033/15

(27 May 2016, unreported) it was held that the question whether there is harassment must be considered in the light of all the circumstances of the case. Where the claim is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.

[125]However, even where certain elements of the test for harassment are met (for example, unwanted conduct and the violation of the Claimant’s dignity), the Tribunal must still consider the “related to” question and make clear findings as to why any conduct is related to a protected characteristic (UNITE the Union v Nailard

[2018] IRLR 730

; Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT).

[126]The test for victimisation is set out in s27 of the Equality Act 2010:- “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

[127]The first question for the Tribunal in determining the claim for unfair dismissal is whether there is a potentially fair reason for dismissal. The reason for dismissal set out in the letter of dismissal is the Claimant’s longterm absence from work with no foreseeable return to work and the Tribunal finds that this was the reason for dismissal; it is satisfied from the evidence of Ms O’Donnell that this was the operative reason in her mind when making the decision to dismiss and there was no evidence before the Tribunal that the Claimant was dismissed for any other reason.

[128]This reason clearly falls within “capability” and so the Tribunal finds that the Respondent has discharged the burden of proving that there was a potentially fair reason for dismissal.

[129]Turning to the procedure followed by the Respondent in investigating the Claimant’s absence and whether she would be fit to return to work, the Tribunal notes that the Respondent obtained occupational health reports which clearly and unambiguously stated that she was unfit for work and that there was no foreseeable return to work. The Tribunal notes that the Claimant’s medical records and a report from her GP were obtained as part of the occupational health assessment and so any assessment was based on the full evidence which could be made available.

[130]Further, the Respondent met with the Claimant on a number of occasions to discuss her absence and gave her the opportunity to attend the final absence meeting. When the Claimant indicated that she was not fit to attend this meeting, the Respondent gave her the opportunity to provide upto-date information on her health in writing.

[131]In these circumstances, the Tribunal considers that the Respondent did follow a fair procedure in investigating the Claimant’s absence (and return to work). It is very difficult to identify what else the Respondent could have done in relation to the process which it followed. At most, it might be said that an up-to-date occupation health report could have been obtained in February 2020 but there was no evidence, at the time or subsequently, that the Claimant’s health had significantly improved to the extent that a return to work was foreseeable in February 2020. There was certainly nothing produced by the Claimant to Ms O’Donnell which suggested that the position had changed at all since the last occupational health report and, indeed, the information which the Claimant provided indicated that she remained unfit for work with no likely return to work.

[132]In terms of alternatives to dismissal, this is not a case where the Claimant could have returned to work in an alternative role. The clear evidence from the occupational health reports were that the Claimant was unfit to return to work in any role and the Claimant did not suggest otherwise to the Respondent.

[133]Further, there was nothing put to Ms O’Donnell (or Ms McCarry before her) by the Claimant that there were steps which could have been taken which would have allowed her to return to work. Although the Claimant makes broad complaints about a lack of support from the Respondent, there is nothing in the contemporaneous correspondence which sets out any concrete steps which she says could facilitate to a return to work.

[134]Despite this, the Respondent did seek to identify alternatives and suggested a career break which was, ultimately, not an option which the Claimant wanted to pursue.

[135]To the extent to which it may be said that the Claimant’s absence arose from work related matters and that the Respondent should have “gone the extra mile”, the Tribunal does note that the Respondent allowed the Claimant a very long period to recover (17-18 months) before dismissing her. Other than that, it is difficult to see what more the Respondent could have done that would have avoided the Claimant’s dismissal.

[136]In these circumstances, the Tribunal does not consider that there were any alternatives to dismissal which could have been offered to the Claimant.

[137]The Tribunal considers that, taking account the length of the Claimant’s absence, the lack of any foreseeable return to work and the absence of any alternatives to dismissal, dismissal was within the band of reasonable responses open to the employer.

[138]The Tribunal does bear in mind that the Respondent is a large organisation which would have the resources to cope with the Claimant’s absence but, even then, it could not be expected to continue to employ the Claimant indefinitely when she had been absent for so long and appeared unlikely to return.

[139]Some minor criticisms could be made of the Respondent’s procedure, for example, the Claimant being issued with an automatic letter advising her of the end of her employment before she had received the letter from Ms O’Donnell giving the reasons for her dismissal. However, none of these had a material impact on the decision to dismiss and the Tribunal does not consider that these render the dismissal procedurally unfair.

[140]For all these reasons, the Tribunal does not consider that the claim of unfair dismissal is well-founded and it is hereby dismissed. Decision – disability discrimination

[141]Given the number of alleged acts of discrimination and the fact that they are presented as separate matters, the Tribunal intends to address each allegation in turn and determine whether it amounts to unlawful discrimination as pled by the Claimant. In doing so, however, the Tribunal bears in mind that it needs to look at the evidence presented to it as a whole in assessing matters such as whether to draw inferences as to the reason for any detriment and not concentrate on just the evidence surrounding each incident.

[142]One matter of broad application to all the acts of discrimination is the alleged motivation of the Respondent for the various actions described below. There is a theme running through the entries in the Claimant’s Scott Schedule that the Respondent was taking actions which were deliberately intended to prevent her from returning to the workplace. Whilst the Tribunal considers that the Claimant has a genuine perception that this was the case, there is no direct evidence of this and the Tribunal considers that there is no evidence from which it considers it could draw such an inference. Nothing in the evidence before the Tribunal provides any basis on which a reasonable objective observer could conclude that the Respondent was seeking to deliberately prevent the Claimant returning to work. Minutes of the meeting of 13 September 2019

[143]The first alleged act of discrimination relates to the minutes of the meeting between the Claimant and Susan McCarry held on 13 September 2019 (p332-334). The Claimant alleges that she had emailed Ms McCarry after receiving these minutes to ask for revisions to be made but that these were not made. This is alleged to amount to discrimination arising from disability with the unfavourable treatment being the failure to make the revisions made by the Claimant.

[144]However, the Claimant produced no evidence that she made such a request. There was no email or other type of correspondence in either bundle in which the Claimant requested any revisions to these minutes. In the Claimant’s supplementary bundle, there was an email chain starting on 24 September 2019 with an email from Ms McCarry to the Claimant enclosing the minutes and then an email dated 26 September 2019 from the Claimant to her son forwarding these. There was, however, nothing from the Claimant to Ms McCarry in reply asking for revisions.

[145]The Tribunal also notes that in her email to SMcC of 10 December 2019, the Claimant asks if she “should” have ensured that her and her son’s points were included in the minutes of the meeting (p350) which implies that she had not done so.

[146]Further, in her cross-examination of Ms McCarry, the Claimant did not put it to the witness that there had been any request made for the minutes to be revised. The Tribunal bears in mind that the Claimant is a party litigant but the Judge had explained to the Claimant that she needed to put her case to the witnesses and, given that this is one of the alleged acts of discrimination, it was something which the Tribunal expected would be put to Ms McCarry.

[147]Finally, during her own evidence, in cross-examination, the Claimant replied to questions regarding a request to revise these minutes by stating that she did not actually make such a request.

[148]In these circumstances, there is no evidence on which the Tribunal could make any finding in fact that the Claimant requested a revision to the minutes of the meeting of 13 September 2019. The Respondent could not, therefore, have refused such a request and so the unfavourable treatment alleged in relation to this act of discrimination did not, as a matter of fact, take place.

[149]For that reason, this allegation of discrimination arising from disability is not upheld.

[150]The Tribunal should be clear that it does not consider that the Claimant deliberately sought to mislead the Tribunal in relation to this matter. The Tribunal bears in mind that the effects of her mental health conditions were having a considerable impact at the relevant time. The Tribunal considers that the Claimant has genuinely misremembered events. Correspondence regarding failure to reply to meeting invitations

[151]The second alleged act of discrimination relates to correspondence on or around 3 December 2019 which the Claimant alleges she received from the Respondent stating that she had failed to respond to invitations to meeting. It is said that this amounts to discrimination arising from disability.

[152]Again, this correspondence was not produced in either bundle. The Scott Schedule makes reference to the Claimant emailing Susan McCarry in response to this correspondence but no such email was produced in the bundles and nothing regarding this was put to Ms McCarry when the Claimant cross-examined.

[153]The Claimant’s oral evidence on this alleged act of discrimination was somewhat confused. She did not make reference to this issue in her evidence-in-chief and it only arose in cross-examination. She was taken to emails at p343 and p348 but confirmed that neither of these were the email she said she sent in response to the letter regarding her failure to reply to meeting invitations. In response to a question from the Judge, she confirmed that she had not produced the emails referred to in the Scott Schedule.

[154]At pp305-312, there is a contemporaneous log kept by Ms McCarry recording her meetings and correspondence with the Claimant regarding the absence management process. No correspondence is recorded in this log regarding a failure by the Claimant to respond to meeting invitations or any correspondence from the Claimant to Ms McCarry about such correspondence.

[155]In these circumstances, the Tribunal does not consider that there is sufficient evidence from which the Tribunal could make a finding of fact that the Claimant was sent correspondence stating that she had not replied to meeting invitations. The Tribunal, therefore, finds that the alleged unfavourable treatment on which this allegation of discrimination is based did not occur as alleged. On that basis, this allegation of discrimination arising from disability is not upheld.

[156]As set out above, this is another matter where the Tribunal does not consider that there has been any deliberate attempt by the Claimant to mislead the Tribunal and that she has genuinely misremembered events from a time where she was under considerable stress and was being impacted by her health conditions.

[157]This allegation is also said to amount to a breach of the duty to make reasonable adjustments and the Scott Schedule makes reference to a PCP of only giving the Claimant one point of contact. The Tribunal had some difficulty in seeing how this PCP arose in the context of alleged correspondence stating that the Claimant had not replied to meeting invitations; this PCP is raised in relation to other alleged acts of discrimination and the Tribunal considered that the Claimant has confused and conflated these matters.

[158]The Tribunal considers that it would make more sense to fully address any alleged breach of the duty to make reasonable adjustments relating to the Claimant having only one point of contact when it addresses those acts of discrimination to which this clearly and expressly relates. What can be said at this point is that, for the reasons set out below, the Tribunal does not consider that there has been a breach of the duty in relation to this alleged act of discrimination. In such circumstances, to the extent that the allegation that the Claimant was sent correspondence stating that she had failed to respond to meeting invitations is said to amount to a breach of the duty to make reasonable adjustment, this element of the claim is not upheld. Claimant’s email of 10 December 2019

[159]The third alleged act of discrimination relates to the Claimant’s email to Susan McCarry dated 10 December 2019 (p349). This was sent in response to Natalie O’Donnell’s letter of 10 December 2019 (p345) seeking to make arrangements for the final absence meeting. The Claimant received an out of office reply indicating that Ms McCarry was on leave.

[160]The Claimant alleges that this amounts to a breach of the duty to make a reasonable adjustment. She states that the Respondent applied a PCP of only providing one point of contact for someone on sick leave placed her at a substantial disadvantage. Although it is not expressly pled in the Scott Schedule, the Tribunal has proceeded on the basis that the disadvantage arises when, as in this instance, the point of contact is out of the office and the Claimant is said to have no-one to contact regarding any issues relating to her employment.

[161]The Tribunal considers that, as a matter of fact, the Claimant was not placed at this substantial disadvantage in this instance. The reasons for this are two-fold. First, the Claimant, on receiving the out of office message, forwarded the email to David Laverie (pp348-349) only a few minutes after sending the initial email to Ms McCarry. Second, at the time at which the initial email was sent, the Claimant had been informed that Natalie O’Donnell was taking over the absence management process and had been provided with Ms O’Donnell’s contact details. Indeed, the Claimant’s email was sent in response to the letter advising her of Ms O’Donnell’s involvement and so this was within her knowledge.

[162]In these circumstances, to the extent that the disadvantage is the absence of the Claimant’s previous point of contact, the Tribunal does not consider that the Claimant was disadvantaged. She did have others whom she could contact, either on her own initiative (that is, Mr Laverie) or by contacting the person whom she had been informed was now dealing with her case (that is, Ms O’Donnell).

[163]The duty to make reasonable adjustments was not, therefore, engaged in relation to this matter and so, for that reason alone, the claim in relation to this alleged act is not well-founded.

[164]However, even if there had been a disadvantage to the Claimant, the Tribunal considers that the Respondent would not have been subject to the duty to make reasonable adjustment in terms of Schedule 8, paragraph 20(1)(b) of the Equality Act; there was no evidence before the Tribunal that the Respondent had either express or constructive knowledge that the Claimant was at any disadvantage because she only had one point of contact.

[165]There was certainly no evidence led at the hearing that the Claimant expressly told anyone at the Respondent that this PCP placed her at a disadvantage; the Claimant did not give evidence to this effect, it was not put to any of the Respondent’s witnesses that the Claimant had informed them of this and there was no correspondence in the bundles in which this is said.

[166]In terms of constructive knowledge, there was no evidence from which it could be said that the Respondent could reasonably have known that the Claimant was at a substantial disadvantage in relation to the single point of contact. From their perspective, the Claimant had been able to forward any correspondence to alternative persons on her own initiative or had been provided with a contact person who was available.

[167]For this reason, the Tribunal considers that the duty to make reasonable adjustments would not have applied to the Respondent in respect of the second and third alleged acts of discrimination.

[168]The Claimant, in her evidence, stated that she was disadvantaged by having to speak to the head of the department (that is, Ms O’Donnell) which she said she found intimidating. This does not form part of her pled case as set out in the Scott Schedule; it involves an entirely different PCP and a different disadvantage from what is set out in the Schedule. On the basis that this does not form part of the claim, the Tribunal does not intend to address this. Respondent’s reply to the Claimant’s email of 10 December 2019

[169]The fourth alleged act of discrimination also relates to the email of 10 December 2019 (p349) and the time it took for the Respondent to respond to this. A substantive response was sent by Ms O’Donnell on 12 December 2019 (p351).

[170]The Claimant alleges that this amounts to a breach of the duty to make reasonable adjustments. The Claimant states that the Respondent applied a PCP of delaying their replies to her emails which placed her at a substantial disadvantage of increasing her anxiety (which is said to be selfevident). It is said that a reasonable adjustment would have been to reply immediately.

[171]Whilst it is correct to say that the Claimant did not receive an immediate reply to her email of 10 December, the Tribunal does not consider that there is any evidence that the Respondent was deliberately delaying its replies to correspondence from the Claimant. Looking at the correspondence as a whole, it is clear that the time between any communication from the Claimant and a reply from someone within the Respondent varied with no discernible pattern; some replies were very swift and others took longer. The Tribunal considers that the evidence before it demonstrated that the Respondent replied as soon as possible and there was no deliberate delay.

[172]In the specific context of this allegation, it is important to look at when the Claimant’s emails of 10 December 2019 (both the initial email to Ms McCarry and the email forwarding this to Mr Laverie) were sent. Both emails were sent after 11pm and so it is inevitable that there would not be an immediate response.

[173]The Tribunal notes that Mr Laverie forwarded the email on the morning of 11 December 2019 (p348) and the reply from Ms O’Donnell to the Claimant was sent on the morning of 12 December (p351). Whilst appreciating that the Claimant was anxious about correspondence being addressed, the Tribunal does not consider this to be an excessive period of time (effectively one working day) for the Respondent to reply.

[174]In these circumstances, the Tribunal finds that the Respondent did not apply a PCP of delaying their replies to the Claimant in relation to their response to the Claimant’s email of 10 December 2019. The duty to make reasonable adjustments was, therefore, not engaged in relation to this matter.

[175]Even if the duty to make reasonable adjustments had been engaged and breached in relation to replies to correspondence, the Tribunal does not consider that an adjustment of making an immediate reply would be reasonable.

[176]The Claimant did not give any evidence or make submissions as to what was meant by “immediate” or what period she would consider reasonable. A period of time for a response which the Claimant considered would be reasonable was not put to any of the Respondent’s witnesses.

[177]To the extent that this is a reference to an instantaneous response, the Tribunal considers that this is simply not feasible and it cannot be reasonable to expect anyone to reply to an email instantaneously. Putting aside the fact that the specific email of 10 December was sent late at night and so an immediate reply could not be reasonably expected, it would also not be reasonable to expect instantaneous replies to email sent during the working day; people may be in meetings, on the telephone, at lunch or some other type of break, engaged in another piece of work or may need time to prepare their reply (which could include obtaining information not in their possession).

[178]In the absence of any evidence as to what would have been a reasonable period for a reply to the Claimant’s email of 10 December 2019 (or any other correspondence) that would have overcome any disadvantage to the Claimant, the Tribunal considers that the Respondent had not breached the duty to make reasonable adjustments (if it had been engaged) by replying to the Claimant in the period which they did.

[179]The Claimant’s Scott Schedule also raises an issue regarding an alleged failure by the Respondent to respond to questions in the Claimant’s email of 10 December regarding what adjustments had been made to facilitate a return to work and about information said to be missing from the minutes of the meeting of 13 September 2019.

[180]These matters are not framed as an act of discrimination. The entry on the Schedule only refers to reasonable adjustments as set out above and these matters are not expressly said to be part of the PCP set out above nor can the Schedule be read in such a way that the Tribunal can infer how these are said to form part of the claim set out in this entry in the schedule.

[181]On that basis alone, the Tribunal would not address this allegation. However, there is also no factual basis to this allegation. On any reading of the email of 10 December 2019 (pp349-350), it does not contain any questions about reasonable adjustments or raise any issue of information missing from the minutes in clear terms; there is a rhetorical question about what support the Claimant has received other than allowing her time to recover enough to appeal her grievance; there is a comment about whether the minutes from the “informal meeting” (a reference to the 13 September 2019 meeting) will be used and whether she should have ensured her points were included.

[182]The Tribunal can well understand why the Respondent did not read these as being questions which required a direct response. When read in the context of the email as a whole, they form part of a general complaint that the Claimant makes about the process to date and, as stated above, are framed as rhetorical questions rather than requests for information. Access to payslips and pay information

[183]The fifth alleged act of discrimination relates to the Claimant’s ability to access payslips or other pay information when salary payments were made to her in error in December 2019. The Claimant alleges that she could not access payslips or speak to someone to obtain pay information due to the fact that she was absent. She alleges that this amounted to discrimination arising from disability.

[184]It was clear from the evidence that the Claimant was, in fact, able to contact Ms O’Donnell regarding this issue and was provided with information about the erroneous payments made to her. The Tribunal was taken to a chain of emails between the Claimant and Ms O’Donnell starting on 16 December 2019 and continuing to 17 February 2020 (there are two email chains relating to this in the bundle, pp352-357 & pp358-364, with the Tribunal being referred to both and some duplication between them) in which the Claimant raised the issue regarding these payments, Ms O’Donnell raised the matter with the Colleague Help Team on the Claimant’s behalf and provided the Claimant with the response to this query. Ms O’Donnell also provided the Claimant with telephone contact details for the Colleague Help Team in order that she could contact them directly (although the Claimant did not do so). Finally, Ms O’Donnell arranged for the Claimant’s payslips to be sent to her.

[185]In these circumstances, it is difficult to see what it was the Claimant was unable to access due to her absence. Whilst she did not initially have direct access to Colleague Help, she was able to contact Ms O’Donnell regarding this issue who took it up on her behalf. In any event when contact details were provided to her she did not make contact with this team. Ms O’Donnell subsequently contacted the Colleague Help team to arrange for the Claimant to have online access to her payslips.

[186]The Tribunal considers that the Claimant was not, as a matter of fact, denied access to payroll information; she was able to contact Ms O’Donnell in order to query the erroneous payments, the matter was taken up by Ms O’Donnell on the Claimant’s behalf and she was given the contact details for the Colleague Help team which would have allowed her to deal with the matter directly.

[187]In the Tribunal’s view, a reasonable worker would not consider that they had been disadvantaged in such circumstances and so there was no detriment to the Claimant. For that reason, this claim of disability discrimination is not upheld. Period for providing further information to Natalie O’Donnell

[188]The sixth alleged act of discrimination relates to the period of 7 days set out in Ms O’Donnell’s email of 17 December 2019 (p366) asking for the Claimant to provide further information in relation to her health and absence for consideration at the final absence meeting. It is said that there was a breach of the duty to make reasonable adjustments in relation to this.

[189]The Tribunal does consider that the request for the Claimant to respond within 7 days does amount to a PCP applied by the Respondent.

[190]The Scott Schedule (p93) does not specify a disadvantage to the Claimant as a disabled person arising from the 7 day period; it makes reference to the Claimant potentially being dismissed at the final absence meeting as a disadvantage but makes no link between this and the period to respond.

[191]To the extent to which it might be said that the Claimant was unable to respond in such a short period then this is not sustainable on the evidence before the Tribunal; the Claimant provided an initial response to Ms O’Donnell’s email by email dated 18 December 2019 (p366) indicating that she considered her previous emails provided a response to these questions. Ms O’Donnell renewed her request for information by email dated 13 January 2020 in order to have up-to-date information and the Claimant provided this information by email dated 15 January 2020.

[192]In these circumstances, there is no evidence before the Tribunal that the Claimant was disadvantaged by the 7 day period for a response; she responded to the initial request on the very next day and responded to the renewed request within 2 days.

[193]There is also no evidence on which the Tribunal could conclude that Ms O’Donnell would have known that, if there had been any disadvantage, there was such a disadvantage. The Claimant never requested a longer period to respond (although she was effectively given one) nor was there anything which would indicate to Ms O’Donnell that the Claimant had difficulty in responding in such a period given that the Claimant responded to the relevant correspondence timeously.

[194]For both these reasons, the Tribunal does not consider that the duty to make reasonable adjustments was engaged in relation to the period of 7 days to respond to the request for further information and so the claim that there was a breach of the duty in this regard is not well founded. Email from Natalie O’Donnell dated 6 January 2020

[195]The seventh alleged act of discrimination relates to an email from Ms O’Donnell to the Claimant dated 6 January 2020 (pp363-364) providing the Claimant with a response in relation to her query about the erroneous payments made to her. It is alleged that this email amounted to discrimination arising from disability and harassment on the basis that the contact details for the payroll department had been removed from the email making it impossible for her to outline her concerns.

[196]The Tribunal has already set out above its decision that the Claimant was not, in fact, prevented from raising her query regarding these payments and was able to pursue this through Ms O’Donnell and ultimately was given direct contact details for Colleague Help to allow her to speak to them directly.

[197]To the extent that it is being said that the contact information for payroll (it would have been the Colleague Help team) had been deliberately removed then there was no evidence to this effect and this was never put to Ms O’Donnell in cross-examination. The evidence from Ms O’Donnell that the response she received did not come from an email but rather through a web portal. In such circumstances, the Tribunal finds there was no email address for Ms O’Donnell to remove and there is no evidential basis on which it could find that she had done so.

[198]Further, there was no evidence that the way in which Ms O’Donnell wrote the email of 6 January 2020 was related to the Claimant’s disability or was because of something arising from her disability. Nothing to this effect was put to Ms O’Donnell in cross-examination and, looking at the evidence as a whole, there was nothing from which the Tribunal could draw an inference to this effect.

[199]For these reasons, the Tribunal does not consider that the terms of the email of 6 January 2020 amounts to either discrimination arising from disability or harassment and those claims are not well-founded.

[200]During the course of her evidence, the Claimant asserted that a request in the email of 6 January 2020 for her to provide information about any financial loss she had suffered as a result of the erroneous payments in order that the Respondent could make sure she was not out of pocket also amounted to discrimination.

[201]This was not part of the Claimant’s pled case and so the Tribunal does not strictly need to address this issue. However, it does comment that, if this had been pled, the Tribunal would not consider that this amounted to unfavourable treatment for the purposes of a discrimination arising from disability claim because a reasonable employee would not consider that they were being disadvantaged in circumstances where their employer was seeking to ensure that they did not suffer a financial loss due to an error by the employer. Similarly, whilst the Claimant genuinely perceived that this request had the effect of creating a hostile or other prohibited environment for the purposes of a claim of harassment, the Tribunal, taking account of all of the facts, does not consider that it was reasonable for such a request to have the relevant effect where it was being done to assist her.

[202]In any event, there was no evidence that the reason why the request was made was because of something arising from disability or related to the Claimant’s disability. There was nothing to suggest that it was done for any other reason than to assist the Claimant and remedy any financial loss the Claimant had suffered. Email from Natalie O’Donnell purportedly dated 7 January 2020

[203]The eighth alleged act of discrimination relates to an email which the Scott Schedule (p94) states was sent by Ms O’Donnell to the Claimant on 7 January 2020. There was no email of this date produced in the bundle but, based on the description of the content of the email in the Schedule, the Tribunal considered that it was a reference to Ms O’Donnell’s email of 13 January 2020 (p369). The Tribunal has proceeded on the basis that there is a typographical error in the Scott Schedule and that the email of 13 January 2020 is what is being referred to in relation to this alleged act of discrimination.

[204]The email in question was a request from Ms O’Donnell for a response to the questions she had posed in her email of 17 December 2019 regarding the up-to-date position (p366-367). It is said that the sending of the email of 13 January amounts to victimisation and harassment.

[205]In relation to the claim of victimisation, there was no evidence before the Tribunal that the Claimant had carried out a protected act; the Claimant did not, in either her evidence or submissions, make an express reference to something done by her which was said to be a protected act.

[206]However, the Tribunal, recognising that the Claimant was a party litigant, did not leave it at that and gave consideration as to whether any of the correspondence or verbal discussions about which it heard in evidence was capable of being a protected act. There was certainly nothing which fell within the scope of s27(2)(a), (b) or (c) of the Equality Act. The Tribunal gave consideration as to whether the grievance dealt with by Mr Laverie could fall within the scope of s27(2)(d) but concluded that there was nothing in that which could reasonably be read as amounting to a complaint about the breach of the Equality Act; the grievance related to how the Claimant felt she had been treated by the Respondent and how it had impacted her health but did not make any complaint which, in effect, amounted to a complaint about a breach of the Equality Act. The Tribunal could not identify any other matter raised by the Claimant which was capable of falling within the scope of s27(2).

[207]The Claimant does allege in the Scott Schedule that the Respondent was taking steps to delay the process in order to render any claim she could bring to the Tribunal out of time. Although it is not expressly pled, the Tribunal has, therefore, proceeded on the basis that the claim of victimisation is based not on a protected act which happened prior to the alleged acts of victimisation but on the basis that she may do a protected act in the future (that is, bring proceedings to the Employment Tribunal as she has done).

[208]However, there is no evidence, either express or from which the Tribunal could draw an inference that the relevant acts by the Respondent were done because the Claimant may bring a claim under the Equality Act. There was nothing in the correspondence which discussed or even mentioned Tribunal proceedings; the Claimant does not expressly mention bringing a claim under the Act; the Claimant does mention being upset about being dismissed due to ill health in a telephone conversation with Ms McCarry on 9 October 2019 but Ms McCarry replies that this would only be done where there were no alternative; Ms McCarry in her email of 29 October 2019 expressly directs the Claimant to ACAS as a source of independent legal advice which is an unusual step if the Respondent was seeking to prevent the Claimant taking legal action; there was nothing in the emails between managers that mentions any potential future proceedings, let alone anything which indicated that these managers were conscious of the relevant time limits.

[209]It was certainly not put to Ms O’Donnell in express terms that she was influenced by a potential future claim or time limits. She did candidly accept in cross examination that she could have taken action more swiftly at the end of the absence management process in February 2020 but the Tribunal does not consider that this, on its own, is enough to draw the necessary inference.

[210]In relation to this particular allegation, the Tribunal does note that the period between Ms O’Donnell’s email of 17 December 2019 and the renewed request on 7 January 2020 covers the Christmas and New Year period. It is not surprising that there was a short delay at such a time.

[211]There was evidence before the Tribunal that the Respondent was willing to allow the Claimant an extended period to appeal the decision of Mr Laverie in relation to her grievance. The Tribunal considers that this demonstrates that the Respondent was not seeking to delay the progress of the internal processes and were, in fact, extending the process to allow the Claimant more time than they would normally allow an employee.

[212]The Tribunal, therefore, finds that there was no evidential basis on which it could conclude that the fact of a potential claim in the future had any effect on the Respondent’s actions.

[213]In circumstances where there is no protected act in the past then there is no basis at all to a claim of victimisation. Further, there is no evidence that a potential future claim was the cause of any of the acts by the Respondent said to amount to victimisation. The claim of victimisation is, therefore, not well founded.

[214]Turning to the harassment claim, the email of 13 January is conduct which is related to the Claimant’s disability given that it was sent as part of an absence management process where the absence was caused by the Claimant’s disability.

[215]However, the Tribunal does not consider that this was unwanted conduct given that the Claimant had indicated in the second last paragraph of her email of 10 December 2019 (p350) that if any questions relevant to the final absence meeting were put to her in writing then she would respond in full. The Tribunal considers that the Claimant was, therefore, inviting written questions and so it cannot be said that the Respondent was engaged in unwanted conduct when they accepted that invitation.

[216]To the extent that the Claimant is seeking to say that it was the renewed request in the 13 January email for answers to the questions posed in the 17 December email which was unwanted given her response on 18 December (p366), the Tribunal considers that the matter has to be viewed as a whole.

[217]In particular, the Tribunal can well understand why Ms O’Donnell renewed her request on 13 January; the Claimant’s response on 18 December did not provide specific answers to the questions posed by Ms O’Donnell and simply made a general reference to the Claimant’s previous emails with no explanation of which emails are being referenced or what information in those emails the Claimant considered answered Ms O’Donnell’s questions. It puts Ms O’Donnell in the difficult position of having to go back through the Claimant’s earlier emails (with no guide as to how far back she should go) and effectively guess at what information the Claimant considers answers the questions Ms O’Donnell had posed.

[218]Further, earlier emails would contain historical information and the position may have changed. Ms O’Donnell was, quite properly, seeking an up-todate position from the Claimant in relation to her health issues.

[219]The Tribunal does not consider that each email in the chain of correspondence should be viewed in isolation and they should be read as a whole. In those circumstances, the Respondent was asking for information which the Claimant had indicated she was willing to provide and when they did not receive a clear response then they renewed that request. The Tribunal does not consider that this amounts to unwanted conduct where the Claimant had indicated that she would respond in full to any request for information.

[220]In any event, the Tribunal does not consider that the request for information from Ms O’Donnell had the prohibited purpose or effect in terms of s26(1)(b) of the Equality Act.

[221]The clear purpose of the request from Ms O’Donnell was to gather up-todate information about the Claimant’s health in order that she had all relevant information for consideration at the final absence meeting. This is a perfectly proper purpose which does not fall foul of s26(1)(b).

[222]In terms of effect, whilst the Tribunal considers that the Claimant genuinely feels upset about the request for information being renewed, it does not consider that, looking at the whole circumstances of the case, it was reasonable for the request to have that effect; the request was being made in circumstances where the Claimant had indicated that she would respond and where her initial response did not, as set out above, provide clear answers to the questions posed by Ms O’Donnell. The Tribunal also takes account of the fact that the Claimant was able to respond to the renewed request within a short period and providing clear answers.

[223]In the Scott Schedule, the Claimant asserts that the renewed request indicated that her concerns were not being taken into account and that this created the prohibited effect. Again, whilst the Tribunal is satisfied that this was the Claimant’s genuine perception, it does not consider that it was reasonable for the email of 13 January to have the prohibited effect. Ms O’Donnell expressly acknowledges that the Claimant has previously provided information at the start of the second paragraph of her email and explains that she is seeking to understand the current position given that some emails from the Claimant had been sent some time ago. The Tribunal does not consider that this can reasonably be read to say that Ms O’Donnell was not taking account of those earlier emails.

[224]For all these reasons, the Tribunal finds that the harassment claim is not well founded. Receipt of “unknown email” by the Claimant

[225]The ninth alleged act of discrimination relates to what is described on the Scott Schedule (p94) as an “unknown email” which the Claimant received on 27 January 2020 in response to an email she sent to Lauren Coyle regarding the issue of the payments made to her in error. It is said that the “unknown email” indicated that Ms Coyle no longer worked for the Respondent and that this amounted to discrimination arising from disability on the basis that the Claimant was not in the office and could not know who was still employed by the Respondent.

[226]The Claimant did not produce a copy of the relevant emails and did not give any evidence about this issue in her evidence-in-chief. The matter was raised in the cross-examination in which the Claimant, when being asked what the issue was in relation to this matter, stated that, as a result of Ms Coyle having left the Respondent, was disadvantaged by only having Ms O’Donnell to contact.

[227]The Tribunal considers that it has a very limited evidential basis on which it can make findings in relation to this allegation. The burden of proof is on the Claimant and the Tribunal does not consider that she has discharged it in relation to this allegation in terms of proving that there was unfavourable treatment which was caused by something arising from disability.

[228]It is not clear why the Claimant was contacting Ms Coyle about a matter which Ms O’Donnell had been dealing with for over a month at this point; Ms Coyle does not appear in any of the previous correspondence and was not copied into the Claimant’s initial email of 16 December 2019 raising this issue (p364). On the face of it, Ms Coyle had had no involvement in this matter at all.

[229]There is also no obvious reason why the Claimant needed to involve Ms Coyle. For example, there was no evidence that Ms O’Donnell was not responding to the Claimant’s emails which might prompt her to contact an alternative person.

[230]The Tribunal has no evidence as to what the Claimant sought to raise with Ms Coyle but had she raised this with Ms O’Donnell, who was her point of contact, then the issue about which she complains would not have arisen. The Respondent was not subjecting the Claimant to any unfavourable treatment in this regard. It may have been different if Ms Coyle had been the nominated point of contact and the Claimant had not been informed of her departure but that is not the case. Rather, the Claimant sought to contact someone other than her nominated contact and the Respondent cannot be held responsible for any disadvantage which arises from the Claimant’s choice.

[231]The Tribunal does not consider that the Claimant was subject to any disadvantage in having Ms O’Donnell as her point of contact; there is no evidence that, for example, Ms O’Donnell was not progressing the matter or that the Claimant was in any way discouraged or prevented from communicating with Ms O’Donnell.

[232]Further, as at 27 January 2020, Ms O’Donnell had provided the Claimant with the contact details for Colleague Help and so the Claimant did have someone other than Ms O’Donnell who she could contact.

[233]The Tribunal has already addressed the issues of a single point of contact, access to pay information and having contact details for Colleague Help above and found that any claim of discrimination relating to these was not well-founded. To the extent that this allegation is based on the same or similar arguments made in relation to those matters then the Tribunal relies on the same reasoning as set out above.

[234]For all these reasons, the Tribunal finds that this claim under the Equality Act is not well founded. Email from Natalie O’Donnell dated 5 February 2020

[235]The tenth alleged act of discrimination relates to an email sent by Ms O’Donnell to the Claimant on 5 February 2020 at 15.48 which is said to amount to harassment on the basis that it is alleged that Ms O’Donnell sought to use the fact that the Claimant had previously said (in 2018) that she did not want unnecessary contact from the Respondent as an excuse for not addressing the issue of the payments made in error.

[236]The Tribunal does not consider that this is a proper and reasonable reading of this email when it is considered in context. It is part of an exchange of emails between the Claimant and Ms O’Donnell on 5 February (pp353-354) which is initiated by the Claimant. The Tribunal has already set out this exchange in its findings in fact and does not intend to repeat it. Those findings are referred to for their terms.

[237]The Tribunal considers that, when the relevant email is read in the context of the whole email exchange, Ms O’Donnell is not seeking to excuse inaction on her (or the Respondent’s) part. The Claimant had sought access to pay information and Ms O’Donnell had provided her with the contact details for the team (that is, Colleague Help) to arrange this. The Tribunal notes that the Claimant had in an email of 27 January 2020 at 13.08 asked to speak to someone in payroll and the contact details were provided in response to this request. In those circumstances, there was nothing to suggest to Ms O’Donnell that the Claimant was expecting her to make those arrangements until the email exchange of 5 February.

[238]To put it another way, there was no inaction by Ms O’Donnell to be excused as there was nothing to suggest that she needed to take action until the exchange on 5 February. The relevant email was simply Ms O’Donnell confirming her understanding of the position and it is important to note that once the Claimant’s position was clarified, Ms O’Donnell took immediate action on this.

[239]The Tribunal does consider that the email in question was, arguably, not unwanted conduct. The Claimant initiated the email exchange that led to this email and, to some extent, there has to be some scope for Ms O’Donnell to respond to the issue being raised. The relevant email is not inherently offensive and simply sets out Ms O’Donnell’s understanding of the position.

[240]In any event, even taking the Claimant’s case at its highest, the Tribunal does not consider that this email had the prohibited purpose or effect necessary for it to amount to harassment.

[241]There was no evidence at all that Ms O’Donnell’s purpose was anything other than to reply to the Claimant’s email and confirm her understanding. It was put to her in cross examination that Ms O’Donnell was taunting or mocking the Claimant in this email exchange. Ms O’Donnell denied that, stating that she did not know what else she could have done. The Tribunal accepted this denial as credible and reliable.

[242]In terms of effect, again, whilst the Tribunal considers that the Claimant has had a genuine perception of a prohibited effect (and purpose), when this email is considered in all the circumstances of the whole email exchange it was not reasonable for the email to have a prohibited effect. The email exchange simply clarified both parties’ understanding of the position and it is notable that Ms O’Donnell then immediately took the action which the Claimant was asking her to take. The Tribunal does not consider that it is reasonable for such an exchange to violate someone’s dignity or create a hostile, offensive or other environment for them.

[243]For these reasons, the Tribunal considers that the claim based on this allegation is not well-founded. Email from Natalie O’Donnell dated 19 February 2020

[244]The eleventh allegation relates to an email which Ms O’Donnell sent to the Claimant on 19 February 2020 (p368) confirming that the final absence meeting had taken place. It is said that this amounts to an act of victimisation on the same basis as the eighth alleged act of discrimination.

[245]The Tribunal has set out above the reasons why the claim of victimisation in respect of the eighth act was not well founded and it relies on the same reasons in holding that the claim of victimisation in respect of this allegation is also not well founded. Letter from Respondent to the Claimant received on 4 March 2020

[246]The twelfth alleged act of discrimination relates to a letter sent to the Claimant by the Respondent which was received by the Claimant on 4 March 2020 confirming that she had been dismissed. It is said that this letter amounts to discrimination arising from disability.

[247]A copy of this letter was not produced by the Claimant and she only referred to it in her oral evidence describing it as an automated letter. It was not disputed by the Respondent that such a letter was sent.

[248]It is important to note that the Scott Schedule does not plead a case that the decision to dismiss itself is an act of discrimination and, rather, it is said that the sending of this letter is the act of discrimination.

[249]It is alleged that this amounts to discrimination arising from disability on two grounds.

[250]First, it is said that the letter did not contain any rationale for the Claimant’s dismissal. The Tribunal accepts this assertion at face value as there is no evidence which disputes this. However, the Claimant subsequently received, on 5 March 2020, a letter dated 28 February 2020 which does contain the rationale for her dismissal and so the Tribunal considers that the Claimant was provided with the reasons for her dismissal when the correspondence is considered as a whole and so the Tribunal does not consider that this amounts to unfavourable treatment.

[251]Second, it is said that the letter amounts to discrimination arising from disability because the decision to dismiss her was made while she was absent from work and she was not advised of the date of the meeting at which the decision was made nor was she invited to this meeting.

[252]The Tribunal considers that this is an allegation of discrimination that goes beyond the sending of the letter and is, rather, a complaint about the manner in which the final absence meeting was arranged and conducted.

[253]When the whole circumstances of the case are considered, the Claimant was invited to the final absence meeting. It is correct that she was not invited to the specific meeting that Ms O’Donnell held but the Claimant was invited, in earlier correspondence, to attend the final absence meeting when it took place (with options given to her to attend remotely) but had expressly and unambiguously stated that she was not able to attend any such meeting (whether in person or remotely). This is not a case where the Respondent simply proceeded to a final meeting without telling the Claimant about it at all. She was given the opportunity to attend and declined that opportunity.

[254]In these circumstances, the Tribunal does not consider that a reasonable worker would consider that they had been disadvantaged by a meeting proceeding in their absence in circumstances where they had been given an opportunity to attend a final absence meeting but had declined to do so.

[255]For these reasons, the Tribunal finds that the claim of discrimination arising from disability in respect of this allegation is not well-founded. Letter from the Respondent to the Claimant dated 28 February 2020

[256]The thirteenth, and final, alleged act of discrimination related to the letter dated 28 February 2020 (pp378A-B) confirming the reasons for the Claimant’s dismissal which is said to amount to discrimination arising from disability.

[257]Again, the Tribunal bears in mind that the actual decision to dismiss is not said to be an act of discrimination and, rather, it is the contents of the letter which form the basis of the claim in relation to this allegation.

[258]The first matter raised by the Claimant is that the letter to dismiss relies on a comment made by her at the grievance meeting with David Laverie to the effect that she did not want to return to work with the Respondent to justify the Claimant’s dismissal.

[259]It is important to consider the context in which this comment is referenced in the letter. The reference to this comment appears as part of a short narrative summarising what had happened in the absence management process but is not expressly referenced in the second paragraph on p378B where Ms O’Donnell sets out her reasons for dismissing the Claimant. The factors relied on are the length of the Claimant’s absence and the lack of any foreseeable date for a return to work. Taking the Claimant’s case at its highest, the latter reason would be broad enough to encompass any comment by the Claimant that she did not want to return but it would also include the occupational health reports which stated that a date for return to work was not imminent or even foreseeable. There is no evidence that this comment by the Claimant was a significant, let alone determinative, factor in Ms O’Donnell’s decision.

[260]To put it another way, there is no evidence that had this comment never been mentioned in the letter then a different decision would have been made. It is difficult to see how the reference to this comment disadvantaged the Claimant or how a reasonable worker would consider they had been disadvantaged in such circumstances.

[261]The second matter raised by the Claimant is an allegation that the letter of dismissal does not indicate that Ms O’Donnell had taken into account the information which the Claimant asked her to in an email of 18 December 2019 (p366).

[262]The Tribunal considers that it is important to take into account what was actually said by the Claimant in the email at p366. This simply makes reference to the Claimant’s “previous emails” as containing answers to the questions Ms O’Donnell asked in her email of 17 December 2019 (p366- 367). It does not make reference to any specific email from the Claimant or reference to any specific information which the Claimant wants Ms O’Donnell to take into account.

[263]This stands in contrast to what is pled in the Scott Schedule where it is said that Ms O’Donnell was being asked to take into account four specific matters; medical information; details of the Claimant’s health difficulties; detail of the impact that the Claimant’s work had on her health; many requests for HR support. To the extent that this allegation of discrimination is based on an assertion that Ms O’Donnell was being asked to take into account these specific matters then the Tribunal considers that, as a matter of fact, she was not. At most, she was being asked to review all of the Claimant’s previous emails without any direction as to what information in those emails the Claimant considered relevant or wished to rely on.

[264]In any event, it is not true that the letter of dismissal did not give an indication that the Claimant’s previous emails had not being considered by Ms O’Donnell. The second paragraph of p378B opens with a statement that there had been “a review of all meeting notes, email interactions, occupational health reports and calls since the start of your absence” (emphasis added) before the decision to dismiss had been made. On the face of it, the letter does indicate that Ms O’Donnell had taken into account all of the Claimant’s emails. Further, there was no evidence led before the Tribunal to contradict what is said in the letter.

[265]In these circumstances, the Tribunal considers that this allegation of discrimination did not actually happen and so this claim of discrimination is not well founded.

Summary

[266]For the reasons set out, the Tribunal finds that each of the alleged acts of discrimination forming the Claimant’s claim under the Equality Act are not well founded and the claims under the Equality Act are hereby dismissed.