Professor R Sheikholeslami v The University of Edinburgh: 4102702/2012 and 4107069/2012

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102702/2012, 4107069/2012

Venue Edinburgh

Hearing 14th September 2015, 15th September 2015, 16th September 2015, 25th November 2015, 1st December 2015, 15th December 2015, 19th December 2015, 15th January 2016, 20th January 2016, 28th January 2016, 8th & 9th February 2016, 15th February 2016, 29th March 2016, 26th, 27th, 28th and 29th April 2016

Between

Professor R SheikholeslamiClaimant

The University of EdinburghRespondent

Before

Employment Judge Ms Jane M Porter

Members

Mr G Nisbet

Ms S Stewart

Mr Simon Gorton QC for claimant

Ms A Carmichael QC for respondent

Date 31 January 2025

JUDGMENT

It is the judgment of the Employment Tribunal that: The claim of sex discrimination is dismissed.

[2]The claim of failure to make reasonable adjustments is dismissed.

[3]The claim of discrimination arising from disability is dismissed. The claim of victimisation succeeds in part. The claim of unfair dismissal succeeds. The claim of failure to pay holiday pay succeeds.

[7]The application to reconsider the decision to refuse an amendment to include a claim for notice pay is refused.

[8]The case will be listed for a hearing on remedy in due course. ETZ4(WR) Introduction

[1]The claimant, who is 60 years old, was employed by the respondents as a Professor and held the Chair of Chemical Process Engineering with them between the 1st of May 2007 and the 12th of April 2012. In these conjoined cases she claims that she was unfairly dismissed. She also claims that in the course of her employment she suffered discrimination on the grounds of her disability and sex and victimisation. At the start of the hearing, the tribunal gave permission for the claim to be amended to bring a claim for unpaid holiday pay. The application to amend to include a claim for breach of contract in respect of notice pay was refused and an application has been made that that decision should be reconsidered.

[2]The claimant’s claims are resisted by the respondents. There has been considerable procedure in this case, notably 16 Preliminary Hearings in the period from 2012 to September 2015. In September 2015 the full Hearing on the Merits commenced.

[3]The procedure up to the commencement of the full Hearing on the Merits was determined by a differently constituted Tribunal to that which heard the full Hearing on the Merits. The new Tribunal came fresh to the case in mid September 2015. The hearing could not proceed on the 14th September 2015 as the new Tribunal required a reading day, witness statements having been the subject of a previous order.

[4]Unfortunately, and despite the considerable pre-hearing procedure, parties were unable to agree a Joint Bundle of Documentation. In these proceedings therefore the respondents rely upon Bundles of Documentation named respectively the First, Third and Fourth Bundle of Documentation for the Respondents. There is no Second Bundle of Documentation for the Respondents. These bundles are referred to in this judgment by the page number on the bottom right hand corner of each document. For her part, the claimant referred to a bound Schedule of Documents which was entitled “Claimant’s Bundle of Documents” (CBD). In this judgment the documents within that bundle will be referred to by their page numbers and not by the alternative CBD numbers at the top right hand corner of the bundles.

[5]The claimant also referred to the attachments to her witness statement and supplementary witness statement as productions. Again in this judgment these are referred to by the page numbers on the bottom right hand side of each document.

[6]Unfortunately, the documents separately lodged by the parties led to a situation where the Tribunal frequently had to cross reference correspondence or email chains in separate Bundles of Documentation. This did not assist the judicial determination of this case.

[7]Despite the lengthy procedure in this case, disability status remained at large at the commencement of the Hearing in September 2015. In the course of the procedure there was a Joint Report prepared which concluded that the claimant was a disabled person, however, the contents of the report were not accepted by the respondents. Disability status was therefore a further issue for the Tribunal to determine in these proceedings.

[8]There was no Joint List of Issues prepared in this case.

[9]The witness statements were taken as read in this case with each witness commencing either with supplementary questions only or with cross examination.

[10]The parties conducted themselves on the basis that the Hearing be on liability only, loss being a complex subject in itself.

[11]The evidence concluded on the 29th April 2016. Written submissions were ordered and were supplied within the following 28 days with responsive submissions provided shortly thereafter. However, shortly after the production of the submissions Employment Judge Porter became unwell and remains absent from her post.

[12]Prior to the 3rd June 2016, Employment Judge Porter had drafted the Findings in Fact and Observation on Evidence in this case. Due to her continuing ill-health the Vice President assisted in the completion of this judgment, along with the Members, Ms Stewart and Mr Nisbet. However, for the avoidance of doubt, this decision is that of the original tribunal, all of whom have approved this judgment (including Employment Judge Porter). The Issues

[13]The Tribunal themselves considered the issues before them to be: i. Was the claimant treated less favourably because of her sex in terms of section 13 of the Equality Act 2010? ii. Did the respondent victimise the claimant in terms of section 27 of the Equality Act 2010? iii. Was the claimant a disabled person at the relevant time, all in terms of section 6 of the Equality Act 2010? iv. If so, did the respondent know, or could it be reasonably be expected to know that the claimant was a disabled person? v. Did the respondent apply to the claimant a provision, criteria or practice that put her at a substantial disadvantage in comparison with persons who are not disabled? vi. If so, did it know, or could it reasonably have been expected to know that the claimant would be placed at this disadvantage? vii. If so, did the respondent fail to take steps which it would be reasonable for it to have to take to avoid the disadvantage? viii. Was the claimant treated less favourably because of something arising in consequence of her disability in terms of section 15 of the Equality Act of her disability? ix. If so, was that treatment a proportionate means of achieving a legitimate aim? x. Did the respondent have a potentially fair reason for dismissal? xi. Did the respondent adopt a fair procedure? xii. Was dismissal within the band of reasonable responses? xiii. Did the respondent fail to pay to the claimant her full entitlement of accrued holiday pay (and therefore make a deduction from wages in contravention of section 13 of the Employment Rights Act 1996)? xiv. Should the decision to refuse the claimant’s application to amend to include a claim of breach of contract (notice pay) be revoked and replaced with a decision to allow the amendment? xv. If so, was the respondent in breach of contract in this respect? The Witnesses

[14]The claimant herself gave evidence. Cross examination commenced on 16th September 2015 and finished on 29th March 2016.

[15]In the period 27th to 29th April 2016 the Tribunal heard evidence from Alison McNaught, HR Partner, School of Engineering, Professor Peter Grant, the former Head of the School of Engineering when the claimant was appointed but who is now retired, Jon Gorringe, the former Head of Finance of the respondents, Professor Nigel Brown who was the Head of the College of Science and Engineering between July 2008 and August 2011, Professor Alan Murray who was the former Head of the School of Engineering between August 2008 and June 2012, Bridgeen McCloskey, Director of Professional Services of the School of Engineering, Professor David Ingram, Professor of Computational Fluid Dynamics in the Institute for Energy Systems in the School of Engineering, Dr Don Glass, Honorary Fellow in the School of Engineering, Dr Kim Waldron, the former University secretary, Professor Lesley Yellowlees, Vice Principal of the respondents and Head of the College of Science and Engineering, Professor Jo Shaw, the Deputy Head of the College of Humanities and Social Sciences, Sheila Gupta, the former Director of HR of the respondents and June Bell, the Head of HR at the College of Science and Engineering.

[16]The Tribunal made the undernoted essential Findings in Fact in respect of the evidence of these witnesses. Findings in Fact

[17]On 20th September 2006, the claimant was interviewed in respect of the position of Chair in Chemical Engineering with the respondents. The interviewing panel was chaired by Professor Graham Bulfield who was Head of the College of Science and Engineering at that time.

[18]The outcome of the process was that Professor Stefano Brandani should be appointed as the Chair of Chemical Engineering. The reasons for this were that Professor Brandani’s research in Carbon Capture and Storage was a research of growing importance in energy which was relevant to research at that time being carried out within the respondents and, further, that Professor Brandani had greater experience and knowledge of UK academia and teaching and research than did the claimant who had previously been employed in Australia.

[19]After Professor Brandani was appointed, Professor Bullfield spoke to Professor Peter Grant who was at that time the Head of School of Engineering and suggested to him that the claimant should also be appointed. In December 2006 and January 2007 negotiations took place with the claimant regarding a package to be offered to her by the respondents.

[20]The Tribunal accepted that in entering into these negotiations and subsequently accepting employment with the respondents it was the intention of both parties that the claimant should maintain her position with the respondents until retirement. To this end there was discussion between the claimant and Jon Gorringe regarding the shared equity scheme of which she was a recipient and whether that scheme could be maintained till retirement (CBD4, 4 of 496).

[21]As part of her start up package the claimant was to be given the use of a laboratory which was at that time being used by an external company called Artemis. In order to bring the laboratory up to the required specification it had to be completely gutted and refurbished.

[22]The Tribunal accepted the evidence of Professor Peter Grant that the claimant’s overall start up package was valued at £948,000 of which £600,000 was spent on the laboratory. The Tribunal accepted the evidence of Professor Peter Grant that Professor Brandani received an offer of £182,000 from the respondents as a start up package.

[23]The claimant commenced her employment with the respondents on the 1st of May 2007. It was anticipated that the claimant’s laboratory would be ready by May 2008. It was anticipated that in the intervening period the claimant would start planning her laboratory with the Estates and Buildings Team at the respondents.

[24]Following the commencement of the claimant’s employment, interviews were conducted to appoint a technician who would spend 60% of his or her time working with the claimant. In the event Steven Gourlay was appointed. However Steven Gourlay turned out to be unsuitable for the post and Dr Peter Anderson, a Research Assistant in Chemistry was appointed and started working with the claimant in or around April 2008.

[25]By September 2008 the chemical process engineering laboratory was still not completed. In January 2009 Mr Bob Gusthart was appointed as Technical Services Manager and recommended that a Process Design Engineer was needed to construct the laboratory. The respondents acceded to this request and brought in an outside company, namely Desighn Limited. From April to June 2009 Desighn Limited worked with the claimant on the specification of her laboratory. In about August 2009 Desighn Limited completed the specification for the claimant’s laboratory. The laboratory was completed round about October and November 2009.

[26]In the period May 2007 to October 2009 the claimant had no research facility as she did not have access to a working laboratory. In this period the Tribunal finds that the claimant raised the issue of her lack of technical support and the delay in construction of the laboratory with the respondents on numerous occasions.

[27]On the issue of the delay in the construction of the laboratory the Tribunal accepted the evidence of Professor Murray that the delay was, in part, due to the school’s inexperience in a new area of research and their consequential lack of knowledge in the construction of the laboratory for the same, coupled with long lead times for component parts. Further, the Tribunal accepted the evidence of Professor Alan Murray and Professor Peter Grant that the claimant did not display the hands on advice and input to the laboratory’s design and construction in the way that was expected of a recipient of a start up package. For her part, the claimant’s position was that she had not accepted the position of Chair and Professor of Chemical Process Engineering to move across the globe and to act as a technician and set up a lab. (The claimant’s chief witness statement para 72).

[28]The Tribunal considered the issue of the lack of hands on advice and input by the claimant in the setting up of her laboratory to be an example of the miscommunication that existed between the claimant and the respondents at that time. The claimant accepted that Professor Alan Murray and Professor Peter Grant had certain expectations that the claimant would have significant involvement in the setting up of her laboratory. The Tribunal found that such expectations (which were incumbent upon men and women), were not adequately communicated to the claimant in such a way that it was clear to the claimant that this was part of her role within the respondents. In reaching this conclusion the Tribunal accepted that there was communication between the respondents and the claimant regarding her involvement in setting up the lab; however such communication did not appear to result in clarification of the point that the claimant’s lack of input into the laboratory was a cause of its delay and completion.

[29]On the issue of communication generally the Tribunal found as a whole that the expectations of the incumbents of the School of Engineering as to the nature and extent of the role of a Professor within the school were not shared by the claimant. The Tribunal found this difference to be attributed to a difference in culture and expectation and noted the shared collective experience of academia within the UK by the incumbents within the School of Engineering. The Tribunal also observed that many of the incumbents of the School of Engineering had worked together for a considerable number of years. The claimant had no experience of UK academia.

[30]Further and in any event the Tribunal observed that the claimant held and does hold a high opinion of her status as a world renowned Professor of Petrochemical Engineering and was not prepared to engage herself in tasks which she considered were demeaning. In this respect the Tribunal accepted the evidence of Professor Alan Murray that the claimant (like some other academics) was someone who did not like to follow rules, which she felt constrained her other activities.

[31]The claimant relies upon Professor Stefano Brandani as a comparator and maintains that he was given laboratory space and a technician from the outset of his employment which the claimant was not. To this end the Tribunal accepted the evidence before it that whilst Stefano Brandani was indeed given a laboratory space at the outset of his employment with the respondents such laboratory space was within an established laboratory which he shared with others. Accordingly on commencing his employment with the respondents there was no requirement for him to have a “start up” laboratory of the nature and extent to that provided to the claimant. The Tribunal observed that there was no evidence before it to support the proposition that the claimant was not provided with technical support from the commencement of her employment with the respondents.

[32]In late August 2008 Professor Peter Grant asked Professor Brandani to serve as Head of the Examination Boards for Chemical Engineering Undergraduate Students- “Chair of the Board of Examiners”. The Tribunal accepted the evidence of Professor Alan Murray that this was an onerous role which was not perceived to be prestigious.

[33]There was no transparency in the recruitment of Professor Brandani to the position of Chair of Board of the Examiners. To this end the Tribunal accepted the reasons given by Professor Nigel Brown that Professor Stefano Brandani had been appointed as Chair of the Board of Examiners as he had already established his research activity and had engaged enthusiastically with teaching and therefore to a certain extent was established within the respondents. Whilst the lack of transparency in these criteria for selection can be criticised, the Tribunal concluded that the criteria were nothing whatsoever to do with the claimant’s sex.

[34]In January 2010 a new team who were working in Carbon Capture joined the University. That group was headed up by Professor Jon Gibbins. A significant amount of equipment was coming with the new team which needed to be housed within the School of Engineering.

[35]The Tribunal accepted the evidence of Professor Alan Murray that the only space available to store equipment was in part of the newly refurbished technical process engineering laboratory designed for the claimant. Professor Alan Murray discussed this with the claimant who objected strongly to his decision to house the equipment there.

[36]There ensued correspondence regarding the housing of Professor Gibbins’ equipment within the claimant’s lab (CBD140-157). The parties liaised regarding the possibility of an external expert intervening in the dispute but were unable to reach agreement.

[37]In January 2010 the claimant was diagnosed with work related stress and depression. She did not return to her employment with the respondents. In late April 2010 the claimant found out her salary would be reduced when she was absent on sick pay. Her salary was initially reduced to half pay and then to no pay.

[38]The claimant asked HR about income protection insurance and workers health and safety insurance. They gave her advice about who to contact. In the period January 2010 to the termination of her contract of employment the claimant produced fit notes to the respondents covering her absence (Supplementary Witness Statement, 57-79).

[39]In this period the claimant took medication for anxiety, stress and depression. The Tribunal accepted the evidence of the claimant that throughout this period she had no social life and was unable to do activities she previously could do such as exercise and shopping. Throughout that period the claimant was frequently tearful due to the symptoms of her illness.

[40]The Tribunal accepted the evidence that in the period January 2010 to April 2012 the claimant attended Harlow College from time to time in her capacity as a Governor there. Further, the claimant attended conferences, sometimes abroad and on occasion gave lectures.

[41]However, the Tribunal found that engagement did not take place on a weekly or even on a monthly basis. In respect of her engagement in outside activities was concerned, the Tribunal accepted the evidence of the claimant that sporadic engagement was her “salvation” from her profound mental health issues.

[42]On the 14th April 2010 the claimant, along with Professor Andrea Schaefer wrote to the Principal of the University of Edinburgh, Professor Sir Timothy O’Shea and stated: “Dear Tim As the only 2 female Professors remaining from those hired and brought to the UoE in 2006/2007 by the School of Engineering we would like to discuss with you how to make our work viable. Right now, under the current conditions, we are completely disabled in our employment due to:- gender discrimination …” The letter went on to state “To move forward we would like to speak with you in order to find a constructive solution to the above issues which not only hamper our professional life and growth but also severely and adversely impact our health and personal circumstances to an extent we can no longer bear.” (page 153, CBD)

[43]The Tribunal were unanimous in their view that it could not be disputed that by 14th April 2010 the claimant had made a grievance the subject matter of which was sex discrimination.

[44]As a result of the letter written by the claimant and Andrea Schaefer to the Principal a diversity review of the School of Engineering was instigated in June 2010 and commenced in August 2010 under the auspices of Professor Jo Shaw, a Professor in the Faculty of Law. The Tribunal accepted the evidence that Professor Jo Shaw is a well respected and robust individual who had been selected carefully for her task.

[45]In December 2010 Professor Jo Shaw published her report of her review (309-321 CBD). In her review, Professor Jo Shaw stated: “13 One document should be mentioned specifically. In late August 2010 I received through the University internal mail an anonymous communication comprising a single piece of paper on which were printed 2 internet addresses. The intention of the communicator was clearly that I should follow those addresses and draw certain conclusions from them which reflected badly upon certain individuals who work in the school. I did follow the links and drew the conclusion from this that there were people in the school who wanted to influence my judgement about these issues in a problematic way, despite the insistence of the Head of School that he was entirely supportive of the Review and despite his encouragement to staff to approach me to provide an input (many did so) or to respond my approaches positively (as many did). I should note that the links encouraged me to look away from systemic and cultural issues with which this review is solely concentrate and to concentrate on the personal and personnel issues which lie outwith its scope. I chose to ignore the content of the web pages referred to in the note.”

[46]The Tribunal accepted the undisputed evidence before them that the anonymous communication comprised an email containing two links to web pages relating to the claimant’s time in Australia. The content of the web pages was such that it was likely that an adverse inference would be drawn by the Professor Jo Shaw. The Tribunal was given no reason to doubt the conclusion of Professor Jo Shaw that the author of the anonymous communication came from within the School of Engineering.

[47]In her review Professor Jo Shaw referred to findings made by Dr Wendy Faulkner in 2006. A summary of her findings is to be found on page 6 of Professor Jo Shaw’s report (page 314) and include: “In the focus group with men from the School all appear to have been convinced that the then very recent appointment of 4 women professors in the school was entirely due to what they called “positive discrimination”. The disparity and tone of this discussion and the apparent unanimity in the group indicated that there was a widespread and much complained about view within the School that “these women were appointed because they were women, not because they were good enough”.

[48]In her section “Findings of the Review Interviews” Dr Jo Shaw included the following paragraphs (page 315-316): “25 Many of the staff I spoke to had worked for a long time in the school. Overwhelmingly they expressed contentment about their own treatment and what they saw of the treatment of others although many did suggest that approaches to management had changed radically since the appointment of a new Head of School in 2008. There had been a shift from a rather centralised model, one even described by interviewees as “patrician”, to a more decentralised model in which much line management responsibility was devolved to Heads of Institute who had participated in turn in a Senior Management Team with the Head of School, School Administrator and Director of Research. … 27 A consistent negative theme expressed by some interviewees was that they were concerned about the presence of an “insiders” culture in the School of Engineering. … Equally it should be noted that there were also expressions of satisfaction about the school and its working environment coming from those whom one might classically have expected to be “outsiders”.

[49]In the “summative findings of the review” Professor Jo Shaw stated: “34 I concluded that the problems which the school currently faces lie under the shadow of events of 2006 and shortly thereafter when some individuals found their competence negatively judged before they even joined the school. My tentative suggestion is that this is not caused by “gender” bias as such, or at least no more than is (regrettably) still all too prevalent across engineering generally as a profession, and indeed (albeit to a lesser extent) across academic workplaces in STEM fields. Rather I concluded that the school has developed a culture which sometimes draws unhelpful distinctions which individuals often find hard to negotiate, between insiders and outsiders. Gender is one of the vectors along which judgements about whether an individual belongs or is not is transmitted, but it is not the only one … Laudable efforts to change the culture of the school is starting, at least, with it’s management structure and style and with a new leadership have yet to bear fruit at least so far as the working experience of some members of staff is concerned.”

[50]The report of Professor Jo Shaw concluded thus: “41 All of this work needs to be underpinned by a comprehensive diversity “audit” of the school undertaken in the context of the College in which it sits. The audit should be prepared by a professional team from outside the University. This should include work on retention. It would be useful to discover more about the anecdotal evidence that talented people have left because they find it hard to fit in if indeed it is true. Exit interviews and reconnection with staff members who have left since 2006 would be an important element of this work.”

[51]The Tribunal accepted the evidence of Professor Alan Murray that the review was in fact undertaken by an external company OSDC and was published in April 2011. The report resulting from the review is to be found at the claimant’s bundle CBD at page 420.

[52]The Tribunal accepted the evidence of Alan Murray that Professor Jo Shaw’s report was the first he had heard of the comments reported by Dr Wendy Faulkner in 2006. On the 4th of February 2011 (respondent’s first bundle p151), Professor Alan Murray wrote to the claimant and Professor Andrea Schaefer in these terms: “Dear Roya Review of Diversity in the School of Engineering I am sure that you have read Professor Shaw’s report with interest. At this stage, I feel compelled to write to you and to Andrea regarding a set of unwelcome views that came to light as a result of Jo’s investigations. I refer to the views expressed to Dr Wendy Faulkner in 2006, during an interview with a group of male staff in the School of Engineering. The meeting discussed the then recent appointment of four women professors in the School. The views are summarised by Professor Shaw in her report, section 20(3) as “…these women were appointed because they were women, not because they were good enough”. I am sure you know that I was shocked to hear these views, which I find distasteful and indefensible. Only one of the four appointees had actually worked in Edinburgh at the time. Casting aspersions on her appointment was demonstrably unjustified. Doing so with respect to three further new colleagues who had not even started work here in Edinburgh was preposterous. Sadly, we cannot rewrite the past but I can express my unqualified, personal rejection of such views. I can also, representing the School as its current Head, add regret that such views were once held and their expression felt to be acceptable.”

[53]On 31st January 2011 the claimant and Andrea Schaefer wrote to Professor Nigel Brown copying Professor Sir Tim O’Shea, the Principal of the University. In that letter Professors Shafer and Sheikholeslami made certain suggested recommendations. These recommendations included: “We have discussed with Professor Sir Timothy O’Shea a clear indication of our suggested way forward which entails a move outside of the School of Engineering.” (page 324, CBD)

[54]The Tribunal accepted the evidence that in January 2011 the claimant wanted to return to work and saw a gradual reintegration via another school to be a way back into the workplace after being absent for a year with work related stress and depression.

[55]Professor Nigel Brown replied to the claimant and Professor Shafer on the 16th of February 2011 (327-328 CBD). In that letter he stated: “I note your discussions with the Principal and your suggestion of a move outside the School of Engineering. While I support the integration of different areas of science in order to develop interdisciplinary working I would have thought a more positive and productive way forward would be to work in your existing refurbished laboratories in an improved relationship with current colleagues.”

[56]Under cross examination Sheila Gupta agreed that there would have been no work permit issues had the claimant been allowed to move school on a temporary basis. In cross examination Sheila Gupta accepted that Professor Nigel Brown, at that time the Vice Principal and the Head of the College, did not exclude the possibility of such a move in his letter of 6th February 2011 but merely expressed a view that the claimant and Professor Andrea Schaefer could work in their existing schools focussing on an improved relationship with their current colleagues.

[57]There was a meeting on the report by Professor Jo Shaw on the 15th February 2011. The Tribunal accepted the evidence of Professor Alan Murray that at this meeting some members of the School of Engineering made representations about their unhappiness with the review process and in particular that it seemed to have been based on and unfairly influenced by the comments of Dr Wendy Faulkener. The claimant was absent from this meeting as she was still on sick leave.

[58]The Tribunal finds that after the meeting on the Professor Jo Shaw report which took place on the 15th of February 2011 the claimant became regarded as an individual to be distrusted and disliked in the School of Engineering. To that end the evidence of Dr Don Glass was that both he and his colleagues had a general feeling that the claimant’s allegation on gender had been overegged. Their view was that the claimant had not got her way in the School of Engineering and her allegations of gender bias were simply a reaction to that. The feeling that the claimant’s disputes with the School were actions that were overegged formed part of the basis of the dislike himself and his colleagues felt towards the claimant (the words in italics are the words used by the witness himself).

[59]In 2011 there was an “injunction” (in the words of Dr Don Glass) not to contact the claimant as she was in dispute with the respondents. The instruction or injunction was that under no circumstances was contact to be made to her other than through solicitors. The injunction was given to Don Glass and others verbally, there being in existence no email trail of the same.

[60]The “injunction” not to contact the claimant was imposed on Dr Don Glass and others who were advised that they should not contact the claimant except through her solicitors as she was in dispute with the School. In 2011 the dispute the claimant had with the school was that of gender equality which she had by then raised on a number of occasions. Indeed, the claimant’s dispute along with the dispute of Professor Schaffer had resulted in the report by Professor Jo Shaw whose comments with reference to Dr Wendy Faulkner’s findings had not found favour among certain quarters in the School of Engineering.

[61]The Tribunal did not have the evidence before it to determine who was involved in imposing the “injunction” to, in effect, send the claimant to Coventry. On their assessment of the evidence the Tribunal concluded that Professor Alan Murray was not so involved. The Tribunal reached this conclusion after having regard to Professor Alan Murray’s demeanour whilst giving evidence and his sincerity in recounting the terms of the letter of 4th February 2011.

[62]In 2011, following the Jo Shaw report the claimant suffered a deterioration in her health. During this time she continued to supervise the work of her PhD student Emad Alhseinat. However, her supervision was largely conducted from home via email and consisted of contact around twice per week and this was not considered adequate by the respondent.

[63]In late 2011 Professor Stefiani approached Professor Alan Murray with a view to allocating part of the claimant’s laboratory to a new Carbon Capture consortium led by Professors Gibbins and Brandani. Dr Don Glass assessed the effect of work of any new team might have on Emad Alhseinat’s work. Dr Don Glass wrote a note of his views on the 15th December 2011 (page 404 of CBD). His note commenced with the words: “I take it that this move has already been decided. The only issue is therefore whether and how the work of the sole research student occupant of this suite of laboratories Emad Alhseinat can be protected. Dr Don Glass went on to recommend the purchase of a piece of equipment that would cost £3,595 plus VAT. The equipment was purchased, and the claimant’s laboratory started being used by Professors Gibbins and Brandani.”

[64]At the same time as the claimant’s laboratory started to be used by Professors Gibbins and Brandani the Head of the Graduate School Professor Ingram along with Professor Stefiani decided that Dr Don Glass should be asked to act as a new supervisor for Emad Alhseinat. Professor Ingram and Dr Don Glass met with Emad Alhseinat more than once and a change of supervisor was agreed with him. On 10th January 2012 Emad Alhseinat informed the claimant that he had been advised by Dr Don Glass that he had been appointed to act as his third supervisor (page 479 CBD).

[65]The Tribunal accepted the evidence of Dr Don Glass in cross examination that communicating with the claimant regarding the allocation of a laboratory to others and the substitution of himself as Emad Alhseinat’s third supervisor would have been something that he would have considered doing but for the fact of the “injunction” not to communicate with her apart from via solicitors. Dr Don Glass accepted that in proceeding as they did to reallocate her lab and to substitute the claimant for another supervisor of her PhD student the actings of the School of Engineering could be seen to be an act of hostility towards the claimant herself. However these acts were not caused by the claimant having made allegations of discrimination nor were they because of her gender or disability.

[66]In his evidence Dr Don Glass stated that in his mind the claimant would not be returning to work and therefore the reallocation of her lab and her supervisory duties over her PhD student were, in his words, “a necessary part of the process of clearing up”. The use of term “clearing up” reflects the general hostile attitude of certain elements of the School of Engineering to the claimant at that time although in the continuing absence of the claimant the process was inevitable.

[67]On 23 May 2011, the claimant met with Dr Waldron. In an email of the same date, the claimant proposed a “way forward”. This included “providing an acceptable work condition” for the claimant’s “gradual reintegration to work”; full coverage of salary and benefits because of work-related illness; and early retirement package for 2 years time and compensation.

[68]On 18 July 2011, Dr Waldron responded. That response included a suggestion that the claimant be referred to Occupational health for an assessment to facilitate any phased return. However on 19 July 2011, the claimant replied that until the respondent had agreed to the “substantive issues” that was not “applicable”. On 21 July, Dr Waldron wrote to say that the respondent could not begin a scheme for re-integration until they had a clearer picture of the medical and occupational health issues involved. She understood the claimant might be reluctant to engage with the respondent’s own occupational health provider and so she wanted to explore whether the claimant would agree to be examined by an independent occupational health adviser. On 10 August 2011, the claimant said that she would need further information including the list of questions and the brief that wold be provided to the examiner. On 19 August, Dr Waldron provided the list of questions. There was then an exchange of correspondence between August and November about wider issues but including the claimant raising concerns about the list of questions and Dr Waldron repeating the need for informed medical guidance if reintegration was to be explored.

[69]On 16 December 2011, Dr Waldron wrote to the claimant about a number of matters. In that letter she said that because the claimant was employed under a work permit, the respondent could not simply offer her another post. The claimant would have to apply and be successful after external advertisement for the respondent to support a new work permit. She noted that the claimant’s work permit would expire in April 2012 and that this may have implications for the claimant’s continued residency in the UK. She noted they were at an impasse and encouraged the claimant to consider the offer previously made by the respondent or to consider mediation.

[70]On the 11th of January 2012 June Bell, Head of HR wrote to the claimant. That letter stated: “Dear Professor Sheikholeslami As you will be aware and as was mentioned in the University secretary’s letter of 16th December 2011 your work permit expired in April 2012 specifically on 12th April. As it would not be legal for the University to continue to employ you to work without such a permit and in accordance with your terms and conditions of employment I am writing formally to give notice that your contract of employment with the University will terminate for that reason on 12th April 2012. If the status of your entitlement to remain in the UK changes please let me know. Please contact me on the telephone number shown above or at June.Bell@ed.ac.uk with any questions you may have.” The claimant’s employment with the respondents did terminate on the 12th April 2012.

[71]In October 2011 Sheila Gupta, then the Director of HR, prepared the document to be found at the claimant’s bundle of documents CBD 594-595. In evidence Sheila Gupta admitted that there were possible options to extend the claimant’s stay in the UK contained within this document which were not explored by the respondents. Sheila Gupta admitted that there were possible steps which were not taken by her but which could be taken to enable the claimant to stay in the UK.

[72]The section “Additional Points” (page 595) states: “The question is how she has been supporting herself during their unpaid leave. If she has taken secondary employment or is self employed or is unbeknown to us switching category of some kind this is breaching the terms of her work permit. We would be within our rights to report this to the Home Office.” In evidence Sheila Gupta admitted that this was an adverse and indeed negative conclusion about the claimant made by her. In evidence she admitted that she had not bothered to check the real position with the claimant herself.

[73]Sheila Gupta said in evidence that on reflection she should have written to the claimant about other routes whereby she could retain her employment rather than simply authorising the letter of 11th January 2012.

[74]The evidence of Sheila Gupta was that her understanding was that the claimant was seeking a settlement from the University and would not be returning to her previous position. For these reasons she did not explore possible options to extend the claimant’s stay in the UK and did not invoke the grievance policy despite communications made by the claimant which were (by her own admission in evidence) clearly grievances.

[75]In evidence Sheila Gupta acknowledged the letter of 23rd May 2011 from the claimant to Dr Kim Waldron (152 first bundle of the respondents) was undoubtedly a grievance and one which was not actioned upon. Her explanation was that she did not consider that the claimant would wish to go through the grievance process due to her ill health.

[76]Sheila Gupta acknowledged in evidence that she played a material role in the termination of the claimant’s employment and indeed authorised the letter of 12th January 2012. In authorising this letter Sheila Gupta acknowledged in evidence that the respondents did not comply with the ACAS Code of Practice.

[77]The Tribunal accepted the evidence of Dr Kim Waldron that the decision to terminate the claimant’s employment was taken by Professor Sir Tim O’Shea. To this end the Tribunal did not believe the evidence given by Professor Lesley Yellowlees that she was the individual who took the decision to terminate the claimant’s employment.

[78]Sheila Gupta also acknowledged that when the claimant refused to attend appointments with occupational health service, the respondents took no further steps to investigate whether or not the claimant was a disabled person despite having been off from her employment at the University for a period of over 2 years with stress and depression. She acknowledged in evidence that she played a material role in the termination of the claimant’s employment without knowing whether or not the claimant was disabled in terms of the Equality Act 2010.

[79]In her actings from October 2011 (594-595 CBD) until the termination of the claimant’s employment Sheila Gupta never referred to the respondents’ own disability policy to be found at page 337 of the claimant’s second witness statement. In evidence she agreed that this was a fundamental omission on her part.

[80]The respondents’ Disability Policy 2004 is to be found at page 337 onwards of the attachments to the claimant’s supplementary witness statement. This Policy states: “It should be remembered that the University is required under the law to make any reasonable adjustments to enable the individual to continue in post. There are a number of possible options to consider:(a) continuing in the same post possibly with appropriate adjustment;

(b) redeployment;

(d) termination of employment” (supplementary witness statement page 342).

[81]Sheila Gupta’s justification for her failures in not only progressing the claimant’s grievances but also in having no regard to the issue of disability in the termination of the claimant’s employment was simply that the claimant was seeking settlement from the respondents. However, such negotiations as there were between the claimant were not fruitful and at no point could it be said that a settlement was within contemplation.

[82]Insofar as the termination of the claimant’s employment was concerned, Sheila Gupta agreed in cross examination that at no point did the claimant say she wanted to relinquish her Chair with the respondents and her position as Professor of Petrochemical Engineering with them. Observations on the Evidence

[83]The Tribunal made the undernoted observations on the evidence in general and that of certain key witnesses. The Claimant

[84]The claimant’s witness statements were taken as read. Her cross examination lasted 13 days, the respondents’ evidence commencing in the last week of April 2015. One of the reasons why the cross examination took this length of time was that the claimant was clearly unwell which necessitated regular breaks. Frequently, the Tribunal had to adjourn for the day early as the claimant was simply too unwell to continue.

[85]However the Tribunal was of the view that many days were wasted in fruitless cross-examination of the claimant and there was a failure to cross-examine on key points. This largely explains the length of the proceedings relative to the essential Findings in Fact. The approach of the respondent’s representative to cross-examination, in circumstances where the claimant was clearly unwell, did not assist the Tribunal in determining the issues. In particular, in light of the evidence, the Tribunal considered it extraordinary that the issue of disability remained at large.

[86]The evidence given by the claimant both in chief and in cross presented a highly intelligent and very well educated woman who was Iranian born and held Canadian and Australian nationality. Prior to coming to Scotland the claimant had worked in both Australia and in Canada.

[87]The Tribunal accepted the evidence of the claimant that her life was her work. Indeed this provided an explanation for the Tribunal on the devastating effect to her health following the breakdown of her relationship with the respondents.

[88]The claimant presented as a person acutely aware of her status as a world renowned Professor of Petrochemical Engineering. As such, the evidence presented a portrait of her arrival to the University of Edinburgh as an individual with clear boundaries as to what she should or should not be doing in her role as Professor of Petrochemical Engineering. An example of this is the issue of the set up of the laboratory. To this end, the Tribunal accepted the evidence of Professor Alan Murray and Professor Peter Grant that when a new Professor is appointed to the University it is the responsibility of that Professor to set up the lab in which they and their team will be working.

[89]The environment in the School of Engineering into which the claimant entered in 2006 was one which was populated by academics who had worked for a number of years together and, by and large, who had gained relevant experience within the UK. The Tribunal observed that the claimant’s consciousness of her status and lack of experience within UK academia lent itself to the potential for problems when she arrived in the UK to take up her position in 2007.

[90]The claimant was questioned at length on her activities during her period of absence from 2010. She was not, however, questioned about her “day to day” activities. The Tribunal therefore took the claimant’s witness statements on the issue of her “day to day activities” to be unchallenged in cross examination. Professor Alan Murray

[91]The Tribunal were of the collective opinion Professor Alan Murray came across as an inherently reasonable and measured individual. In his dealings with the claimant the Tribunal concluded that Professor Alan Murray had only attempted to resolve situations and assist the claimant albeit that at times the claimant perceived his correspondence to be patronising.

[92]The Tribunal adhered to the views of Professor Jo Shaw when she stated in respect of Alan Murray that his efforts in changing the management structure and style of the School of Engineering were “laudable” (paragraph V1).

[93]The Tribunal found that the letter of apology written by Professor Alan Murray of 4th February 2011 (respondent’s first bundle p151) to the claimant and to Professor Andrea Schaefer to be an expression of his genuine and sincerely held views.

[94]Against these observations, the Tribunal did not find Professor Alan Murray to be part of the “insider” group referred to by Professor Jo Shaw. Neither did the Tribunal find him to be a part of the group of individuals who deemed it necessary to impose an “injunction” on the claimant following her “dispute” with the School of Engineering. Dr Don Glass

[95]Dr Don Glass gave evidence to the Tribunal despite having recent surgical intervention for an intracranial bleed. This caused the Tribunal some concern and therefore on separate occasions (once on the part of the Employment Judge and the other on the part of Simon Gorton QC) Dr Glass was asked to confirm that he was able, fit and willing to give evidence. On each occasion he indicated his assent.

[96]In the course of his evidence Dr Don Glass contradicted himself often as a result of spontaneous statements which later became apparent to him had ramifications. For example, after stating under oath that there was an “injunction” not to contact the claimant about any matter apart from through solicitors as she was in dispute with the respondents, Dr Don Glass tried to retract this to merely an “instruction”. Equally, there were contradictions in his evidence as to whether or not HR (and in particular female involvement in HR) were involved in the decision making process in respect of the use of the lab by Professors Gibbins and Brandani in late 2011 and the substitution of himself as Emad Alhseinat’s supervisor in the same period.

[97]The spontaneous passages of evidence given by Dr Don Glass were indeed very revealing to the Tribunal. Firstly, he was clear in his evidence that by 2011 the claimant was distrusted and unpopular. Later in his evidence he stated that the “injunction” not to contact the claimant about any matter apart from through her solicitors was because the claimant was already in dispute with the respondents and further admitted that it was known that that dispute was over an issue of discrimination. Indeed, the Tribunal concluded that those views pervaded from the report by Professor Jo Shaw in which was expressed therein the views of Dr Wendy Faulkner. To this end the Tribunal noted that at the open meeting on the 15th February 2011 some individuals were unhappy with the review process and in particular that the report seemed to have been based upon Dr Wendy Faulkner’s comments that there was prejudice in the School of Engineering.

[98]The Tribunal concluded that Dr Don Glass was a prime example of the “insiders” referred to by Professor Jo Shaw in her report. Further, the Tribunal concluded that Dr Don Glass was certainly privy to a body of individuals that concluded that an “injunction” should be placed on them to refrain from contacting the claimant as she was in dispute with the respondents over issues of discrimination. Bridgeen McCloskey

[99]The Tribunal considered that the cross examination of Bridgeen McCloskey revealed her to have a far greater involvement in the treatment by the respondents of the claimant than initially apparent from her witness statement. To this end, the Tribunal found her evidence in cross that her comments in paragraph 11 of her witness statement were tantamount to an accusation of unprofessional behaviour on the part of Professor Jo Shaw to be indicative of her views on equality and diversity as a whole. What came across to the Tribunal was her unswerving loyalty to the School of Engineering under any circumstances.

[100]Further, the Tribunal found it revealing that Bridgeen McCloskey did not deny having a conversation with Dr Don Glass in 2011 in which she advised him not to contact the claimant apart from through solicitors. The Tribunal concluded that esto there was an “injunction” in place as stated by Dr Don Glass, then Bridgeen McCloskey was a key figure in imposing such orders. Sheila Gupta

[101]The Tribunal found the evidence of Sheila Gupta, formerly the Director of Human Resources to be most instructive. For example, Sheila Gupta freely admitted that she played a material role in the termination of the claimant’s employment but that she took no steps in the period 2010 to 2012 to investigate whether or not the claimant was a disabled person in terms of the Equality Act 2010. To this end, she was in receipt of the sick notes covering the period of the claimant’s absence which articulated the reasons for absence as stress and depression.

[102]Sheila Gupta admitted that whilst playing her material role in the termination of the claimant’s employment she made no reference to the respondents’ own disability policy and admitted under oath that this was a fundamental omission on her part.

[103]Sheila Gupta admitted that the claimant’s correspondence and in particular her letter of 31st March 2010 (152 CBD) could be considered as a written grievance but admitted that she had never treated it as such or indeed invoked the respondents’ own grievance policy.

[104]The reason given by Sheila Gupta for not invoking the grievance policy was that the claimant was unwell and she did not consider that the claimant would want to go through the grievance procedures. However, she never made enquiries from the claimant directly about whether she did want to pursue a grievance.

[105]Sheila Gupta admitted that she was the author of a document recovered under a Subject Access Request to be found at page 594-595 CBD. She stated in evidence that she wrote this document in October 2011. As regards the content of this document, she admitted that on reflection she should have written to the claimant on the alternative routes to continue to extend her stay in the UK, as outlined in the document. Sheila Gupta admitted that in the section of that document headed “Additional Points” she drew adverse and negative conclusions about the claimant without bothering to contact her and enquire as to the issue on how she was supporting herself during her unpaid leave.

[106]Sheila Gupta gave evidence that she dismissed the claimant without considering other options under the respondents Disability Policy as she was of the view of the claimant was only interested in a settlement with the respondents. However, there was no evidence to support the proposition that settlement discussions with the claimant ever came close to fruition. Further, in evidence, Sheila Gupta admitted that the claimant never expressed the view that she wished to relinquish her position as the Chair of PetroChemical Engineering. In considering this issue the Tribunal concluded that there was no factual basis to support the proposition that the claimant wished to leave the employment of the respondents.

[107]In these circumstances the Tribunal considered why Sheila Gupta was of the view that the claimant should be dismissed without looking at alternatives. In answering this question, the Tribunal looked to the evidence of Sheila Gupta that the claimant’s grievances were never progressed due to her ill health. From this the Tribunal concluded that there was a view among the respondents that the claimant was never going to return to the employment of the respondents and therefore there was no need to resolve the situation between employer and employee. The view that the claimant was never going to return to the employment of the respondents due to her health was reflected in the material part played by Sheila Gupta in terminating the claimant’s employment without consideration of other options (as freely admitted by her in evidence).

[108]Sheila Gupta admitted that in dismissing the claimant the respondents did not follow the ACAS guidance.

[109]As with the evidence of Dr Don Glass on occasions Sheila Gupta attempted to retract her frank admissions but was unable to do so in any plausible manner. Professor David Ingram

[110]In their submissions the respondents stated that in the course of Professor David Ingram’s evidence the Tribunal suggested that his evidence was incorrect, even untruthful and that this was indicative of the Tribunal predetermining an important issue in the claim (paragraph 91 and 92 of submissions).

[111]The Tribunal are unanimous in observing that the respondents’ submissions are factually incorrect on this point. The intervention by the Tribunal (which was made after an adjournment to consider the issue) was out of concern that there had been collusion between witnesses. The response of Professor David Ingram to the comments by the Tribunal was such to allay those concerns. Professor Lesley Yellowlees

[112]The Tribunal heard robust evidence from Professor Lesley Yellowlees that the decision to dismiss the claimant was hers and hers alone. However, this evidence contradicted the evidence of Dr Kim Waldron that the decision to dismiss the claimant was that of the Principal, Professor Sir Timothy O’Shea and that Dr Kim Waldron acted at all times on his instructions.

[113]The Tribunal believed the evidence of Dr Kim Waldron rather than the evidence of Professor Lesley Yellowlees for two reasons- firstly, Dr Kim Waldron is no longer in post – she left her position with the University of Edinburgh on 8 March 2013 and is now living in the USA. Secondly, it is clear from the evidence of June Bell that Dr Kim Waldron was materially involved in the events leading to the claimant’s dismissal. There is no such supporting evidence in respect of the involvement of Professor Lesley Yellowlees at that time.

[114]The Tribunal concluded that Professor Lesley Yellowlees chose to be untruthful in this respect due to her continuing employment with the respondents as Vice Principal, Professor Sir Tim O’Shea being the Principal in post at the time of the Tribunal hearing. Professor Sir Timothy O’Shea

[115]The Tribunal considered it worthy of observation that Professor Sir Tim O’Shea, an individual who had significant involvement with the claimant and, furthermore, the individual who the Tribunal found to be the decision maker in the claimant’s dismissal was not called as a witness by the respondents. Objective Justification

[116]Finally, the Tribunal considered it worthy of observation that the respondents led no evidence on the issue of objective justification in respect of the claim brought forth by the claimant under s15 of the Equality Act 2010. The Law Direct discrimination

[117]Section 13 of the Equality Act 2010 (“the Equality Act”) provides that direct discrimination occurs where a person treats another less favourably than he treats or would treat others because of a protected characteristic. It is not necessary to point to an actual person who has been more favourably treated, although how others have in fact been treated may be relevant evidence from which an inference of discrimination may be drawn. The tribunal should construct, if necessary, a hypothetical comparator whose relevant circumstances are not materially different to the claimant’s except for the protected characteristic.

[118]Tribunals do not have to construct a hypothetical comparator if they are able to make findings as to the “reason why” the treatment occurred without doing so. This is clear from the cases of Shamoon v Chief Constable of the RUC, Stockton on Tees Borough Council v Aylott and Law Society and Others v Bahl

2003 IRLR 640

[119]The protected characteristic need not be the only reason for the treatment (Owen and Briggs v James

1982 ICR 618

; O’Neill v Governors of St Thomas More Roman Catholic School ) Disability status

[120]Section 6 of the Equality Act provides that a person has a disability for the purposes of that Act, if she has a physical or mental impairment and the impairment has a substantial and long term adverse effect on her ability to carry out normal day-to -day activities. Schedule 1 to the Act provides further clarification and there is Statutory Guidance on the Matters to be taken into account in determining questions relating to the definition of disability. This Guidance came into effect on 1 May 2011 under enabling regulations (SI 2011/1159). While the Guidance dos not have legal effect, it must be taken into account by tribunals determining this issue. Duty to make reasonable adjustments

[121]Section 20 of the Equality Act provides as follows: “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.

[123]The duty comprises three requirements (of which the first is relevant to this case.) The first requirement is a “requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[124]Section 21 provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments and that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[125]Further provisions in Schedule 8 Part 3 provide that the duty is not triggered if the employer did not know, or could not reasonably be expected to know that the claimant had a disability and that the provision, criteria or practice (“PCP”) is likely to place the claimant at the identified substantial disadvantage. Discrimination arising from disability

[126]Section 15 of the Equality Act provides:-(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.

[127]Guidance on how this section should be applies was given by the EAT in Pnaiser v NHS England UKEAT/0137. In that case it is pointed out that “arising in consequence of” could describe a range of causal links and there may be more than one link. It is a question of fact whether something can properly be said to arise in consequence of disability. There is no need for the alleged discriminator to know that the “something” that causes the treatment arises in consequence of disability. The requirement for knowledge is of the disability only.

[128]Section 27 of the Equality Act provides for another type of prohibited conduct, namely victimisation. This is where someone(a) (A) subjects another

(b) (B) to a detriment because B has done a protected act, or A believes B has done a protected act.

[129]A protected act includes making an allegation (whether or not express) that A or another person has contravened the Equality Act.

[130]A’s motivation may be subconscious. The key question is why B was treated in the way she was. The protected act need not be the only reason for the detrimental treatment but it must have a “significant influence” on the decision to act in that way. (Nagarajan v London Regional Transport

1991 ICR 877

.) “Significant” means “more than trivial”. (Igen v Wong

2005 ICR 931

) Burden of proof under the Equality Act

[131]Section 136 of the Equality Act provides for a shifting burden of proof. It is firstly for the claimant to prove facts from which a tribunal could decide that there has been a contravention of the Equality Act. This is often done by drawing inferences from the established facts. If she succeeds in doing that, then the burden shifts to the respondent to prove that the reason for the treatment is not one prohibited by the Act. The respondent does not have to justify the treatment or show that it acted reasonably, although such matters may go to the credibility of the reason put forward.

[132]The Employment Rights Act 1996 (the “ERA”) sets out the right not to be unfairly dismissed. It is for the respondent to prove that it had a potentially fair reason for dismissal in terms of section 98(1). In the present case it is contended that the reason is “some other substantial reason” justifying dismissal.

[133]If the Tribunal is satisfied there is a potentially fair for dismissal, it must then assess whether in the circumstances (which includes the size and administrative resources of the respondent) the decision to dismiss for that reason was fair or unfair. Section 98(4) provides that the determination of whether the dismissal is fair or unfair shall be determined in accordance with equity and the substantial merits of the case.

[134]This test of fairness is really one of reasonableness and the law recognises that different employers acting reasonably may make different decisions based on the same circumstances. It is not for the Tribunal to decide whether it would have dismissed for that reason. That would be an error of law as the Tribunal would have “substituted its own view” for that of the reasonable employer. Rather the question for the Tribunal is whether the decision to dismiss (including the procedure adopted) fell within the “range of reasonable responses” open to a reasonable employer. If so, the dismissal is fair. It is only if the decision to dismiss falls outside that range that the dismissal is unfair. (See for example, Iceland Frozen Foods Ltd v Jones

1983 ICR 17

[135]A failure to follow a fair procedure may cast doubt on the reason for dismissal or may, in itself, mean that the decision to dismiss was not reasonable. However, the Tribunal must assess the overall fairness of the procedure and not merely whether there was a failure to comply with a contractual procedure or the ACAS Code.

[136]An employee is entitled under the Working Time Regulations 1998 to payment of accrued but untaken annual leave where employment is terminated. Regulation 13(9) of the Regulations provides that annual leave may only be taken in the leave year in respect of which it is due. That provision, however, must now be read in the light of the case law of the Court of Justice of the European Union (see NHS Leeds v Larner

[2012] ICR 1389

). So where an employee is on sick leave during the leave year, that employee may be entitled to take annual leave accrued in respect of one year in a later year. In Plumb v Duncan Print Group Ltd UKEAT 0071/15, the Employment Appeal Tribunal decided that EU law did not confer an unlimited right to carry over periods of annual leave to subsequent years. The Directive, at most, only required that employees on sick leave were able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arose. Consequently, Regulation 13(9) of the Regulations was to be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it was accrued where the worker was unable or unwilling to take annual leave because he was on sick leave and, as a consequence, did not exercise his right to annual leave. Claimant’s submissions

[137]The claimant’s submissions were, in summary, as follows: Is the claimant a disabled person?

[138]It is something of a surprise that this is still an issue when Dr Scott’s report concluded that the claimant was a disabled person since at least October 2010. While this is a matter for the tribunal, all the evidence points to the correctness of that conclusion.

[139]The claimant’s depression was treated with medication before August 2010 and therefore the deduced effects have to be taken into account.

[140]The tribunal is invited to conclude that the claimant was a disabled person from October 2010 suffering from a mental impairment namely a depressive and anxiety disorder.

[141]In the unlikely event that the tribunal concludes that the claimant was not a disabled person, the evidence of Gupta makes clear that the respondent treated her as if she were and this comes under the definition of discrimination by perception.

[142]The respondent plainly had knowledge of the claimant’s disability as a matter of fact as defined by her absence and the sick notes and the perception referred to above. The complaints under the Equality Act

[143]The claimant asserts direct discrimination on grounds of her sex; victimisation; section 15 discrimination (arising from disability) and failure to make reasonable adjustments. Failure to make adjustments

[144]It is submitted that the PCP is the respondent’s requirement that the claimant attend work and fulfil her role.

[145]That PCP put the claimant at a substantial disadvantage.

[146]It was reasonable for the respondent to take the following steps:  to apply its procedures in respect of sickness absence and specifically its disability policy  to apply or have regard to its procedures including the grievance procedure and dignity and respect policy  to ensure that the claimant’s immigration status (which was intimately intertwined with her employment status) would not be compromised by her absences and to take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working statue’s  to maintain the claimant’s pay when absent through illness and to keep non-payments under review  to reintegrate the claimant into work  to contact the claimant’s GP in order to assess the claimant’s fitness and ability to return to work  to commission expert medical advice in respect of the claimant’s condition, prognosis and return to work  to provide a brief to the claimant as a condition precedent to the claimant being seen by the respondent’s occupational health advisers  to avoid dismissing the claimant  to consider moving the claimant to a different place of work outside the school of engineering  engaged with the claimant in respect of her work permit status fully informing her of options with a view to ensuring the claimant’s work status was not lost at the expiration of her 5 year work permit  creating a new role for the claimant if necessary  engaged with the claimant in respect of the potential of and warned and informed the claimant of the removal of her laboratory  engaged with the claimant in respect of the potential of and warned and informed the claimant of the removal of her duties as PHD supervisor for Emad Section 15 complaint

[147]It is submitted that the section 15 complaint applies to all matters referred to under the submissions on reasonable adjustments.

[148]Specifically, it is submitted that the claimant’s absence and all matters related to it caused the respondent to:  Dismiss the claimant  Not to address the issue of the claimant’s work permit and seek a perfectly lawful and legitimate extension thereto  Failed to take steps to apply its own procedures

[149]All of these matters involved unfavourable treatment, they arose out of the claimant’s disability as she was absence from January 2010.

[150]There can be no legitimate aim in what the respondent did.

[151]In any event, a failure to make a reasonable adjustment which would have abolished or minimised the unfavourable treatment, then it is difficult to see how there can be objective justification. Gender discrimination

[152]All the matters under reasonable adjustment and the section 15 claims apply equally to the direct gender discrimination claim. Specifically, the claimant’s focus is on:  The removal from her lab and supervision for Emad.  Dismissal

[153]A desire to avoid looking into the claimant’s complaints and in effect to see the back of the claimant is intrinsically linked to the claimant’s gender.

[154]There is no reason for a hypothetical comparator to be constructed when the ET can make findings on the reason why the claimant received the treatment (relying on Shamoon).

[155]All matters under reasonable adjustments, section 15 and gender discrimination apply equally to the victimisation complaint.

[156]The claimant unquestionably did numerous protected acts including alleging she was disabled.

[157]Again the fact of the claimant’s ongoing complaints and reference to historical complaints materially influenced the respondent’s mind in taking the course and that is sufficient for the claimant to succeed in her claims for victimisation.

[158]There is an additional matter relating to the 23/1/12 meeting with Sir Tim O’Shea as set out in Waldron’s witness statement at paragraph 43. This plainly was threat to the claimant and was an act of victimisation.

[159]This can be taken very quickly. No procedure was followed concluding with no right of appeal being afforded. The ACAS code was ignored. The decision cannot possibly be fair. The claimant seeks a finding of unfair dismissal and a finding that the respondent unreasonably failed to follow the ACAS Code.

[160]The claimant has not been paid in accordance with the 18 month decision in Plumb. There is no defence to this claim. Notice Pay

[161]This was not paid and it should have been paid. There is no defence to the claim. The respondent objects to the amendment application. These objections miss the point. Ms Gupta accepted that notice pay should have been made but was not. That is the respondent’s evidence. It is impossible to see how the respondent is prejudiced by this matter. The respondent has never said that the claimant was in repudiatory breach of contract and she was not cross-examined on this. The obligation is on the respondent to justify why notice was not paid and its witness has admitted the claim. The suggestion that the claimant should take her claim to another forum involving more expense and judicial time is unrealistic and unreasonable. The matter should be dealt with here. Indeed the fact of non-payment illuminates the respondent’s approach to dismissing the claimant and running roughshod over her rights. This is factually relevant to the claims under the Equality Act. Respondent’s submissions

[162]The respondent’s submissions in summary are as follows:

[163]The claimant has not been discriminated or victimised under the Equality Act. Sex discrimination

[164]The claim of direct sex discrimination is without foundation. The claimant has not identified a comparator. She was not treated less favourably than any hypothetical comparator.

[165]Specifically, the alleged failure to provide research facilities. At all times the respondent took reasonable steps to remedy difficulties in relation to technical support and that difficulty was resolved. Responsibility for delay lies with both the claimant and the respondent and the delay was not related to the claimant’s gender.

[166]Reduction of pay to half-salary was in accordance with the policy of the respondent and there is no evidence that it was applied in a discriminatory manner.

[167]The claimant alleges that less qualified male colleague were preferred to her in relation to decisions regarding the laboratory in late 2011. Dr Glass was suitably qualified to advise on the steps that were necessary to allow Mr Alhseinat (the PhD student for which she had responsibility) to continue to carry out his research. Mr Alhseinat was able to carry out his research successfully thereafter. The claimant’s conduct throughout her employment and throughout these proceedings demonstrates a pattern of unwillingness to accept that others had the authority to make decisions about the use to which the respondent’s facilities should be put and to accept that others albeit not sharing the same speciality as the claimant had the technical knowledge and expertise to be able to make properly informed decisions on those matters. The respondent did not treat the claimant unfavourably because of her gender.

[168]The laboratory space was needed for other colleagues in late 2011. Only the PhD student was using the space. He was able to continue using it following some adjustments that were the subject of advice from Don Glass.

[169]The claimant was replaced as supervisor because the PhD student had no supervisor on campus. His second supervisor was abroad and was due to leave the respondent altogether. At the time the claimant had been absent for nearly two years. The individuals involved in decisions about this matter and in the continued supervision of the student were entirely qualified to do so. The respondent had a duty of care to the student to ensure that he was properly supervised so that he had an opportunity to conclude his research successfully and also in relation to practical matters such as health and safety in his working environment.

[170]The claimant was not treated unfavourably because of her gender in relation to the ending of her employment. Her employment ended because she no longer wanted to fulfil the duties of Chair of Chemical Process Engineering. By virtue of the operation of immigration law, any new position had to be advertised so that the respondent complied with its duty to ensure that a post for which a settled employee was qualified was not filled by a non-EEA migrant. The claimant’s work permit came to an end and it would thereafter have been an offence to employ her.

[171]The claimant alleges detriment in relation to changes to the laboratory, in relation to the allocation of another supervisor to Mr Alhseinat and in relation to the termination of her employment on termination of her work permit. The reasons for these decisions are set out in summary above. There is no foundation for the proposition that she was victimised in these respects. Disability discrimination

[172]The respondent disputes that the claimant has established that she was a disabled person at the material times. If she was so disabled, the respondent did not know and could not reasonably have bene expected to be aware that she was disabled. During her absence from work the claimant continued to supervise Mr Alhseinat and to carry out a range of activities described above. The claimant repeatedly failed to engage with occupational health services despite numerous requests to do so. She inhibited the ability of the respondent to discover whether she was disabled and what reasonable adjustments might have been made.

[173]In relation to the claim under section 15, the claimant again focuses on the decision relating to the lab and Mr Alhseinat. The high point of the claimant’s case is that these took place while she was absent from work. The respondent does not accept that the claimant was disabled.

[174]These decisions did not arise from the claimant’s disability (if she was disabled). They arose because of a need for laboratory space and the need to ensure that the student was properly supervised. They were therefore decisions taken in pursuit of a legitimate aim and on a proportionate basis.

[175]The issuing of notice was not unfavourable treatment arising in consequence of her disability. The reason for termination has already been set out. Further the respondent pursued the legitimate aim of complying with immigration law and did so in a proportionate manner.

[176]In relation to adjustments, there is reference to unspecified “adjustments requested”. The claimant wanted to leave her position and it was not possible, consistently with immigration law, to comply with a request to that effect.

[177]For the same reasons the claimant’s dismissal did not arise in consequence of her disability. She was dismissed so that the respondent did not breach immigration law. There was no reasonable adjustment that the respondent could have made in the circumstances. The respondent consulted as extensively with the claimant as was practicable in the circumstances. Particular reference is made to the correspondence and meetings involving the claimant; Kim Waldron and Lesley Yellowlees in 2011. The claimant frustrated efforts by the respondent to investigate whether she was disabled and if so what adjustments could be made by her repeated refusals to engage with occupational health advisers.

[178]The tribunal should conclude that the claimant wanted to change jobs within the University of Edinburgh. It should reject the claimant’s contention that she wanted only to be rehabilitated in a different setting while staying in the same position. The respondent could not provide her with a different position without contravening the immigration laws then in force. It had no option but to terminate her employment when her work permit expired.

[179]The reason for the claimant’s dismissal is as set out above. If the respondent had continued to employ her after her work permit had expired, it would have been breaching immigration law. There would have been serious and adverse consequences for the resident in the form of criminal liability and withdrawal of its status as a sponsor. It had a potentially fair reason to dismiss the claimant. The respondent gave the claimant ample notice in correspondence as to the consequences of her work permit expiring. There was nothing more that the respondent could have done by way of procedure. The procedure was fair. The claimant knew why her employment was being terminated and she had the opportunity to make representations. In face of the claimant’s refusal to continue with her duties as Chair of Chemical Process Engineering, no additional or alternative procedure would have made any difference to the outcome. The claimant intimated that she did not wish to return to her position and did not state otherwise despite numerous opportunities to do so. In all the circumstances it was reasonable for the respondent not to adopt any additional or alternative procedure. The respondent acted reasonably in treating the reason as sufficient reason to terminate the claimant’s employment. Further and in any event, the respondent genuinely and reasonably believed that such a breach would occur on expiration of the work permit. The respondent genuinely and reasonably believed that the claimant was refusing to carry out her contractual duties. Dismissal was for some other substantial reason.

[180]Dismissal was inevitable regardless of what procedures might have been followed.

[181]The claimant materially contributed to her dismissal. She refused to cooperate in that she failed to engage with occupational health service and failed to reply to correspondence which focussed on the consequence of the expiry of her work permit.

[182]It is submitted that the tribunal should conclude that the claimant is and was predisposed to treat any disagreement or suggestion with which she disagrees as a challenge to her authority and professionalism when it is nothing of the kind.

[183]Even if the claimant was disabled and the respondent had the requisite knowledge of that there was no adjustment that the respondent could make in the face of the claimant’s position. As she wanted to leave her position there was nothing to be done. The suggestion as to advice is misconceived. It is an offence for someone who is not registered with OISC or with a body such as the Law Society of Scotland to provide immigration advice.

[184]Any incident or failure to make reasonable adjustments which occurred before the dates of lodging of the claims should be excluded from consideration as time-barred, excluding any incident or failure that occurred more than three months before the lodging of the ET1.

[185]On 31 January the claimant wrote to Angi Lamb of UCU suggesting male comparators. The idea that she was being discriminated against because of the gender had crystallised in her mind by that time at the latest. Any claim made more than three months thereafter of gender discrimination is timebarred. Also the claimant wrote to the Principal on 14 April 2010 alleging gender discrimination. The same point arises.

[186]The claimant’s pay reduced in June 2010. Her claim in relation to that matter is timebarred.

[187]The claims are presented as complaints about discrete events rather than about continuing acts and each incident or failure must be viewed separately. Disability status

[188]The respondent has at no time bound itself to accept the conclusions of Dr Scott. There are two reports lodged with the papers but they have not been spoken to and they are not evidence. The tribunal should simply ignore them. The most that can be inferred from the instruction of a single psychiatrist is that the respondent accepted that the effect of the tribunal’s decision that a joint report be instructed was that only one psychiatrist would be instructed to examine the claimant. If the tribunal does not accept that submission, and takes the view that it should treat the reports as evidence, the respondent submits that the reports do not contain evidence on which the tribunal can rely in reaching a view as to whether the claimant as disabled or not at the material times. The following propositions can be drawn from case law:

[189]The tribunal cannot be bound by Dr Scott’s conclusions. The question as to whether the claimant was disabled is one fro the tribunal alone.

[190]In evaluating Dr Scott’s report the tribunal should take particular care in examining the strength of her reasoning and the nature of the information on which se proceeded. It is the reasoning and not the conclusion of an expert that has the potential to carry weight.

[191]There are deficiencies in Dr Scott’s report. Her conclusions rely in large part on information provided to her by the claimant and the history provided by the claimant. The claimant is a dishonest and unreliable witness. She demonstrated that in the course of her oral evidence to the tribunal. The claimant was dishonest when she claimed to have a “glorious” career. Her career had been marked by a judicial finding in Canada that she had been dishonest. It has also included her being dismissed for serious misconduct. Similarly, she is dishonest and unreliable in relation to the nature and extent of any impairments from which she may have suffered during the period of her employment. Dr Scott did not investigate with sufficient rigour the question of the claimant’s ability to carry out normal day to day activities at the material times. The respondent points to a lack of care in Dr Scott’s report. Although the claimant was absent from work she kept up vigorous and detailed correspondence with the respondent. That is hard to reconcile with the impairments she claims. The claimant continued to supervise Mr Alhseinat and indeed insisted on doing so. She attended a seminar in Algiers in 2011 at which she presented a paper and chaired a session. She gave evidence in Australian court proceedings in 2011 and represented that she would be able to act as supervisor for Pranab Barua. She attended a Science Workshop in November 2011 and continued to publish papers. She attended meetings are Harlow College where she was a member of the governing body, between 2010 and 2012. Her activities are not consistent with someone who claims to be disabled. There is no suggestion that Dr Scott considered these activities critically before coming to a view about the claimant’s impairments. The onus is on the claimant to establish that she was disabled at the material times and she has failed to do so.

[192]The tribunal considers it was clear that the hearing was only to determine liability and approached it on that basis. Remedy will have to be determined at a further hearing.

[193]The tribunal finds that the claimant did a protected act on 14 April 2010 and that the claimant was subjected to a detriment in a number of instances because she had done that protected act. Specifically, after the meeting on 15 February 2011, the claimant was regarded by a number of colleagues in the School of Engineering as an individual to be distrusted and disliked. The respondent issued an instruction that no contact was to be made with the claimant other than through her solicitors. This meant that when it was decided that the claimant was to be replaced as supervisor for Emad Alhseinat and when it was decided that laboratory space would be allocated to others, these decisions were not communicated to her. The tribunal has found as a fact that the failure to communicate the decisions was because there was an instruction not to contact the claimant and that instruction came about because the claimant had done a protected act.

[194]However, the tribunal did not consider that these decisions themselves were influenced by the allegations of discrimination that had been made by the claimant. The respondent appointed another supervisor for Mr Alhseinat because it did not expect the claimant to return to work and it had a duty to assist the student to complete his PHD. There was a need for a supervisor to be present for health and safety reasons. The lab space was reallocated due to the operational needs of the respondent. Direct sex discrimination

[195]As is evident from the findings in fact, the Tribunal finds that the treatment of the claimant during her employment with the respondent was not because of her sex. There was a mismatch of expectations between the claimant and the respondent as to what each expected from the claimant in her role as a Professor within the School of Engineering and miscommunication between the parties involved. This was found by the Tribunal to be because of a difference in culture and expectation, specifically the shared collective of academia within the UK by the incumbents in the School of Engineering and the fact that the claimant had no experience of UK academia. As the tribunal was able to make positive findings as to the “reason why” the alleged less favourable treatment took place, and that this was not the claimant’s gender, there is no need to consider further the shifting onus of proof. The claim of sex discrimination is dismissed.

[196]The tribunal considered that the respondent had a potentially fair reason for dismissal which was a belief that the claimant could no longer legally continue to work in the UK. However, the tribunal considered that dismissal for this reason was not within the band of reasonable responses because of the procedure adopted. It is true that the claimant did not co-operate with the respondent’s requests to attend occupational health or to obtain independent medical advice. However, the respondent simply stopped pursuing that course when it realised that the claimant’s work permit was shortly to expire. The tribunal considered that once the issue of the work permit was raised, no further attempts were made to explore the options that might have allowed the claimant to stay in the UK or to engage with the claimant about her medical condition or whether she could return to work. They didn’t offer a meeting to discuss the termination nor did they offer an appeal. They had not followed their own disability policies or the ACAS Code of Practice. The respondent acted on an adverse and negative assumption that the claimant had taken on secondary employment without bothering to check the true position. They did not follow their own grievance policy when the claimant lodged a grievance with Kim Waldron in May 2011. In these circumstances, the tribunal concludes that the claim of unfair dismissal succeeds. Disability

[197]The tribunal considers it is established that from January 2010 that the claimant was a disabled person in terms of the Equality Act. The tribunal did not base this on the content of Dr Scott’s report as it considered this report had not been introduced into evidence. Although it was a jointly instructed report, the respondent did not accept its findings and Dr Scott did not attend the hearing. She did not speak to the report and the respondent did not have the opportunity to cross-examine her on its findings. The tribunal therefore took no account of it. The claimant gave unchallenged evidence that she had been diagnosed with anxiety and depression and the tribunal was satisfied were this was a mental impairment. The condition was clearly long-term. The tribunal had to consider whether the impairments had a substantial long-term adverse effect on the claimant’s ability to carry out normal day to day activities. There was evidence that the claimant had been carrying out other activities at this time, such as traveling, lecturing and attending conferences and the tribunal was invited by the respondent to conclude that this meant the claimant could do normal day-to day activities. However, the claimant gave evidence, again unchallenged, that she was unable to do activities such as exercise and shopping and that she had no social life. The Statutory Guidance on the definition of Disability (2011) stresses that it is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. The tribunal also considered it relevant that the claimant was on medication during the relevant period and that the effect of the impairment was likely to have been more substantial if she had not had that medication. The tribunal therefore concluded that the impairment did have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities and that the claimant was a disabled person. Knowledge of disability

[198]The tribunal considered that the respondent did know that the claimant was a disabled person by 14 April 2010 when she wrote to Sir Tim O’Shea and stated that the issues at work were “severely and adversely “impacting on her health. Sick notes were also received from 2010 to 2012 which stated the reason for absence was stress and depression. The claimant was absent for a significant period of time. The respondent did not follow its own procedure in its disability policy to establish if the claimant was disabled. Therefore, if they did not, in fact, know she was disabled, they could reasonably have been expected to have known. Reasonable adjustments

[199]It is important in a claim for failure to make reasonable adjustments to follow a structured approach. The first consideration is whether the respondent applied a PCP that the claimant should attend work at the School of Engineering. The tribunal were satisfied that it did.

[200]The second question is whether that PCP placed the claimant at a substantial disadvantage because of her disability. The tribunal found this a difficult question. It is possible that the claimant found it difficult to work in the School of Engineering, because she believed that she had been discriminated against or because her colleagues may have been hostile to her on her return. However that is not a relevant disadvantage for the purpose of a reasonable adjustments complaint. The claimant has to prove facts from which the tribunal could conclude that the claimant would be placed at a substantial disadvantage by that PCP because of her disability. The lack of medical evidence was a problem. The tribunal could speculate about whether there was a potential disadvantage to someone with the claimant’s disability but there was no evidence of that before the tribunal. Further, the claimant’s submissions did not address what the disadvantage was said to be. There is merely a bald statement that “That PCP put the claimant at a disadvantage substantial disadvantage”. If it is unable to make a clear finding of what the substantial disadvantage is and that this was because of the claimant’s disability, it is simply impossible for a tribunal to assess whether the duty arose at all, whether the respondent knew (or should have known) of the disadvantage and whether the proposed adjustments were reasonable for the respondent to have to take to avoid that disadvantage.

[201]In these circumstances, the tribunal considers that the claim for failure to make reasonable adjustments is not established and is dismissed. Discrimination arising from disability

[202]The first question is whether there was unfavourable treatment arising in consequence of the claimant’s disability and if so, was that justified.

[203]The unfavourable treatment is said to be:  Dismissal  Failure to address the claimant’s work permit and seek an extension  Failure to apply the respondent’s own procedures.

[204]The tribunal does not consider there is any evidence that would allow it to conclude that the respondent did not seek an extension of the claimant’s work permit because of her disability (or because of anything arising in consequence of it such as her period of absence) nor that it failed to follow its procedure because of her disability. On the contrary, the tribunal accepted that the respondent believed that the claimant was not prepared to return to work in the position for which the work permit had been granted and that, in these circumstances, it believed that there was no possibility of the claimant’s work permit being extended.

[205]With regard to her dismissal, the claimant submits that she was dismissed because she was absent and she was absent because of her disability and this is therefore covered by section 15. If that were a true description of the factual position, then that would be discrimination arising from disability. However, the tribunal does not consider that the claimant was dismissed because she was absent. She was dismissed because she was unwilling or unable to return to work in her existing post and this triggered issues with her work permit. In considering any causal connection, the tribunal is faced with the same difficulty as it was when considering whether the duty to make reasonable adjustments was triggered. There is no evidence before the tribunal that there was a causal link between the claimant’s disability and her refusal to return to her post in the School of Engineering. This was not a case where the claimant was absent and unable to return to work because of her disability. It appears that she was able to return to work (or at least was asserting that she was) but that she would not return to her previous role based in the School of Engineering. The critical question was whether that was because of her disability or because of some other reason, such as she considered she had been badly treated in that department. The tribunal considers that there was insufficient evidence before it to make the necessary link with her disability. The claim for disability arising from disability is dismissed. Reduction in pay

[206]It is suggested that it would have been a reasonable adjustment to maintain the claimants pay during her absence and to keep it under review. As the duty is not triggered in this case that has not been considered under that head of claim. It is unclear whether it was also intended to form part of the complaint under section 15. If it was, the tribunal considers it is out of time as the reduction occurred more than 3 months before the complaint was presented. The tribunal has not been invited to extend time but, for the avoidance of doubt, it does not consider it is just and equitable to do so, not least because no explanation has been given for the delay in raising that complaint and because it considers that the claim has no real prospect of success.

[207]The claim is based on the fact that the claimant was not paid any holiday pay from the time of her incapacity in early 2010 and on termination was only paid accrued holiday pay for the current year of 2012. The claimant submits that there is no defence to such a claim based on Plumb v Duncan Print Group Ltd. The respondent’s submissions do not address this point. In these circumstances the claim for holiday pay succeeds with the amount payable to be determined at the remedy hearing if it cannot be agreed between the parties. Notice pay

[208]The claimant’s application to amend the claim to include a claim for notice pay was refused at the start of the hearing as the respondent had not come prepared to deal with the matter. The claimant applied for the decision to be reconsidered on the grounds that the proceedings had been delayed and so there was no disadvantage to the respondent. The claimant also submitted that, as the respondent has accepted through its witnesses that the claimant should have been paid notice pay and she was not, there is no rational reason why the application should be resisted.

[209]The respondent contends that the claimant has not demonstrated that it would be in the interests of justice that the decision to refuse the amendment be reconsidered. The respondent’s position is that the claimant was in fact given notice. Further the claims were brought in 2012 and only in 2015 did the claimant seek to amend. The respondent’s witness statements did not deal with a claim for notice pay because none was made. To carry out investigations at this late stage would not be proportionate and not in accordance with the overriding objective. At the time the claim was lodged the claimant was represented by senior counsel and solicitors. If they failed to include this complaint in the claim, the claimant’s remedy lies against them. Further, the claimant has the option to raise the claim in another forum.

[210]The tribunal’s decision is that it is not in the interests of justice to vary the earlier decision. The application to amend came very late and there has been no explanation for that delay. The claimant was legally represented when the claims were presented, the claimant has another remedy in the civil court or, potentially against her advisers. Further the claim is disputed and additional evidence would be required. For all these reasons, the tribunal does not consider it is in the interests of justice to vary its earlier decision and the application is refused. Further procedure

[211]Once parties have had an opportunity to consider this decision a hearing on remedy will be fixed. The administration will write to the parties in about 8 weeks time to canvass suitable dates for that remedy hearing unless they are advised before then that parties have agreed remedy or that an appeal has been intimated. Evidence may be adduced at the remedy hearing if it relates specifically to remedy and only if no relevant finding has been made about the matter in this judgment. The findings in fact in this judgment, so far as relevant will otherwise apply in connection with remedy. At the remedy hearing the tribunal will require to be addressed on all matters relevant to their determination of an appropriate remedy including whether any compensation for unfair dismissal should be reduced because of contributory conduct or because of the application of the principle in Polkey v AE Dayton Services Ltd.

[1]A Judgment on Remedy dated 1st June 2020 was sent to the parties in these proceedings on the 1st of June 2020. By letter dated the 11th June 2020 the claimant applied for reconsideration of that Judgment. The EJ, having considered the application, wrote to parties on the 15th June 2020 and requested the respondents’ response to that application under Rule 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1. At that time the EJ also asked parties to provide their views on whether the reconsideration application could be determined without a Hearing.

[2]By letter dated the 19th June 2020 the respondents’ representatives provided their submissions on the claimant’s request for a reconsideration. At that time the respondents confirmed that they were content that the matter be determined by the Tribunal without a Hearing. By email dated 19th June 2020 the claimant’s representatives also confirmed that they were content that the reconsideration be determined without a Hearing.

[3]The Tribunal convened on the 3rd July 2020 to determine the reconsideration. Submissions For the claimant

[4]The claimant’s application for reconsideration was confined to the issue of the application of the 25% uplift awarded by the Tribunal in paragraph 52 of the Judgment of 1st June 2020. The 25% uplift was awarded under s207A of the Trade Union and Labour Reform (Consolidation) Act 1992 (TULRCA). The Tribunal awarded an uplift of 25% after taking into account the fact that the respondents failed to follow any procedures in dismissing the claimant and, further, failed to deal with the claimant’s grievances.

[5]In the application for reconsideration the claimant submitted that that uplift should be applied not just to the compensatory element of the claimant’s award for unfair dismissal but also to the awards made to her in respect of her discriminatory dismissal. To this end the claimant referred to the Judgment of 15th May 2019 in which the Tribunal found that the respondents were in breach of s15 of the Equality Act 2010 by dismissing the claimant, avoiding her dismissal and taking steps to avoid her dismissal. For the respondents

[6]In response to the application for reconsideration the respondents submitted that the Tribunal has a complete discretion under s207A of TULR(C)A. The respondents submitted that in paragraph 52 of the Judgment of 1st June 2020 the Tribunal chose to exercise that discretion only to award the uplift in respect of the compensatory award. In these circumstances the respondents submitted that there is no basis for granting the request for reconsideration of the Judgment of 1st June 2020. The Law

[7]S207A of the TULR(C)A provides: “(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that-(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, The employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.” Schedule A2 of the TULR(C) Act 1992 provides: “SCHEDULE A2 TRIBUNAL JURISDICTIONS TO WHICH s207A APPLIES … Sections 120 and 127 of the Equality Act 2010.”

[8]Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 provides: “70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.” Discussion and Decision

[9]Firstly, the Tribunal noted that the claimant‘s representatives are correct in stating that in terms of paragraphs 49-51 of the Judgment of the 15th May 2019 the claimant succeeded in part in her claim under s15 of the Equality Act 2010 in that her dismissal was found to be discriminatory. The Tribunal also agreed with the claimant’s representatives in stating that, in terms of Schedule A2, they have a discretion to apply the 25% uplift awarded by them in paragraph 52 of the Judgment of 1st June 2020 to any award made by them in respect of the claimant’s discriminatory dismissal.

[10]The respondents are correct when they say that s207A of TULRCA 1992 gives discretion to the Tribunal to increase any award it makes to the employee by no more than 25%. However, the omission on the part of the Tribunal to extend this uplift to the awards made in respect of the claimant’s discriminatory dismissal was not an exercise of that discretion. Instead, it was an error on the part of the Tribunal and, more particularly, on the part of the Employment Judge in not bringing the terms of Schedule A2 to the attention of the Members.

[11]In these circumstances the Tribunal are unanimous in their view that it is in the interests of justice to correct that error and to apply the 25% uplift to the awards made by them in respect of the claimant’s discriminatory dismissal. Future Procedure

[12]As stated in paragraph 90 of the Judgment of 1st June 2020 this case will now be set down for a Preliminary Hearing on Case Management to determine future procedure on both the remaining elements of quantum and on the issue of the expenses in this long running case. The PH will take place by CVP/Kinly.

[13]By letter dated 21st July 2011 Dr Kim Waldron wrote to the claimant and stated (Bundle 2 page 30): “I can confirm that the University is very keen to reach agreement on the way in which we take things forward, but I cannot expect the University to come to decisions about the extent of any proposal or suggestion that we might make until we have a clearer idea of the medical and occupational health issues involved. Similarly while we all want to see you recover your health we cannot properly begin any scheme for gradual re-integration until that information is available so that each of us can consider what options will be in your best interests. While I am sure there is nothing improper in asking you to be examined through the University’s usual Occupational Health procedures, I can understand your reluctance to engage with the University’s own normal OH provider. With a view to moving things forward I wanted to explore with you the possibility that you might agree to be examined by an independent OH adviser. If you are prepared to do so I would ask that HR contact you (while I am away on leave) and they will arrange to identify a list of three independent OH providers from which you could select one and we could then arrange the referral.”

[14]The letter from the claimant to Dr Kim Waldron of 10th August 2011 (Bundle 2 page 31) provided: “With respect to your question of being examined by an independent OH advisor I can say that hopefully you would agree that I am a reasonable person and would agree to reasonable requests. For me to be able to make an informed decision I would need to have received the complete and necessary information about the exact purposes of the examination and any report out of it and what they are for and will be used for and also to have the list of questions and the brief that the University would intend to provide to the examiner.”

[15]The response from Dr Kim Waldron of 19th August 2011 provided as follows (Bundle 2 page 32-33): “In your letter of 23rd May 2011 and in our meetings and telephone conversations you have expressed your wish for a gradual integration to work and have stated that you see this as a measure that will aid your recovery. We are keen to see your health improve and the purpose of the Occupational Health referral is to understand how to manage your possible return to work but we cannot begin this scheme of gradual re-integration until the information from an Occupational Health process is available so that each of us can consider what options will be in your best interests. I should reiterate that the University’s OH procedures do apply to you as an employee of the University, but in order to progress your case we are willing to look at an external provider and agree who would carry out the assessment with you. We would suggest that any of the following three providers could be approached to see if they would carry out an assessment: BUPA, AXA ICAS or the NHS. It would be helpful if you could indicate your preference of who you would like us to approach. So, the purpose of the referral is to provide both you and the University with detailed information and advice about facilitating a return to work. I am happy to provide you with the questions that the University would ask and we would also supply a copy of the candidate information relating to your role. The questions that we would ask are: 1. What is the nature of the illness from which Professor Sheikholeslami is suffering? 2. What are the actual work related causes that Professor Sheikholeslami believes have contributed to her ill health? To what extent, if any, can these be addressed through a reintegration to work programme? 3. Given the role that Professor Sheikholeslami is required to fulfil, to what extent may it be possible to re-integrate Professor Sheikholeslami back into the workplace? 4. What is Professor Sheikholeslami’s current fitness for work? 5. What practical support will it be necessary to put in place to assist Professor Sheikholeslami with her return to work? 6. Are there any modifications to work that are likely to alleviate the health condition or facilitate Professor Sheikholeslami’s return? 7. Is there any advice about what the University should avoid? 8. What will be the pattern of return? Over what period? 9. When will Professor Sheikholeslami be able to return to full time employment? 10. How often will the arrangement be reviewed at the beginning of the reintegration process? I should emphasise that we would be obliged to comply with the processes of the OH provider that we agree to use. This may involve the need to complete their forms or other documentation, all of which would be shared by you and will be explained to you in more detail once we have engaged the services of the chosen provider.”

[16]By letter dated 25th August 2011 (Bundle 2 page 36) the claimant responded to the letter from Dr Kim Waldron. In that letter the claimant stated: “...Secondly, I note that the letter provided me with a general list of questions, however, a copy of the intended brief to the OH examiner that I had specifically requested was not provided to me. Further, the letter stated that the University would supply a copy of the candidate information relating to the “role” to the examiner but that candidate information for the role was not provided to me either. I must say that:(a) the answers to most, if not all, of those questions were already given to the University;

(b) it is very ambiguous what the letter means by “a copy of the candidate information relating to your role” which I have not been provided with its copy; and

(c) particularly in light of the history of the matter and also as it was requested furthermore as a copy of “candidate role” was also not provided, a copy of the intended brief to the examiner must have been supplied.”

[17]Dr Kim Waldron responded by letter dated 13th October 2011 (Bundle 2 page 57) . That letter stated: “1. Providing an acceptable work condition for (your) gradual reintegration to work As we have discussed before and with respect to our related correspondence, we would be very happy to explore a reintegration to work with you but this will have to be managed through an Occupational Health (OH) referral, because we would need informed medical guidance on how such a reintegration can be achieved. The OH route remains open to you, and if you wish to explore a reintegration to work at the University, please advise me which OH provider you would feel most comfortable using and we can begin the OH process. My letter of 19th August 2011 lists the names of three external OH providers who can carry out the referral. In our discussions, you have said to me and to Professor Lesley Yellowlees that you cannot envisage returning to work in the School of Engineering. Therefore any reintegration would need to be into a role which is different from your current duties under your contract of employment. That may in itself present challenges over and above those involved in your getting back to full health.”

[18]The claimant responded to Dr Kim Waldron by letter dated 22nd November 2011 (Bundle 2 page 57). In that letter she stated: “1. Re: Gradual Work Reintegration issue: I refer to our conversation of 5th July (see Annex 1) during which you informed me that HR had advised you that it would not be possible for the UoE to provide me with work reintegration sought in my 23rd May letter. I also refer to my letters of 19th July, 10th August and 25th July in which I addressed in detail the OH matter raised by the University since its 18th July letter. This correspondence is a test to the inaccuracies and misrepresentations in the 13th October letter.”

[19]In conclusion of her letter of 22nd November 2011 (Bundle 2 page 60) the claimant stated: “Our options Since 23 May 2011 I have been patiently waiting for you and in good faith relying on the fact that the University agrees in essence in terms of my 23 May 2011 letter and the only two concerns to be the length of “stagewise” reintegration and fate of the “Chemical Process Engineering Laboratory.” Regrettably, the 13 October letter appears to suggest that the University may not have been dealing with me in good faith and in fact may have been toying with me and with this seriously grave issue- I hope this portrayal has been inadvertent and incorrect. Summary In summary: 1. The 13th October letter is an insult to injury. 2. The proposed offer does not justify a reply. 3. The 13th October letter’s discussion of the 4 points is disingenuous and has inaccuracies/misrepresentations. 4. The course of events suggests that my good intentions and constructive attempts may have been mistaken. 5. The University’s letters so far have not been constructive; they have been inflammatory, unhelpful and futile. 6. The way forward constructively and amicably by agreement is preferable but other alternatives available.”

[20]In her letter of 16th December 2011 (Bundle 2 page 72) Dr Kim Waldron referred to matters being at an “impasse” after the claimant’s letter of 22nd November 2011.

[21]Following the claimant’s letter of 22nd November 2011 the parties did not correspond further on the issue of the referral to Occupational Health. The Tribunal finds that the respondents’ request that a referral be made to Occupational Health (made by letter dated 18th July 2011 and repeated thereafter) was a reasonable request against the background of the claimant’s absence from her employment with the respondents from January 2010 with work related stress and depression. In reaching this conclusion the Tribunal had regard to the fact that the respondents were willing to engage with an external OH provider as they understood that the claimant may be unwilling to engage with their own normal OH provider (letter of 21st July 2011). In the letter of 19th August 2011 from Dr Kim Waldron, a suggestion of 3 alternative OH providers (one of whom was the NHS) was made to the claimant. The Tribunal also had regard to the fact that, in correspondence, the respondents repeatedly said that a referral to Occupational Health would be with a view to the claimant’s gradual re-integration to the workplace.

[22]The Tribunal finds that the request that the claimant engage with Occupational Health was a genuine attempt by Dr Kim Waldron to engage with the claimant and the University to obtain further information with a view to what was described in the correspondence as “reintegration to work.” Support for this finding is to be found in the letters of 18th July 2011, 21st July 2011, 19th August 2011 and 13th October 2011. The Tribunal further finds that the claimant failed to engage constructively with the proposal that a report be obtained from Occupational Health. To this end, the letter of 19th August 2011 from the respondents to the claimant not only provided details of three alternative providers of Occupational health but also set out the questions that would be asked of any OH provider and assured the claimant that any forms or other documentation completed by the respondents for the purpose of an OH report would be shared with her.

[23]In response, the claimant’s letter of 25th August 2011 made reference to the respondents’ failure to supply a copy of the “intended brief”, notwithstanding the assurances by Ms Waldron in her letter of 19th August 2011 about the provision to the claimant of copies of any documentation supplied to the chosen OH consultants. The claimant did not clarify to the respondents what further documentation would satisfy her request for sight of the “intended brief”. The respondents’ final letter on this issue (13th October 2011) reiterated that the respondents were “very happy” to explore reintegration to work and reiterated the fact that this would have to be managed through an OH referral as they needed “informed medical guidance” on how such a reintegration would be achieved. The letter of 13th October 2011 repeated that: “The OH route remains open to you and if you wish to explore a reintegration to work at the University please advise me on which OH provider you would feel most comfortable using and we can begin the OH process.”

[24]In making these Findings in Fact , the Tribunal was mindful of the fact that in cross examination it was put to Dr Sheila Gupta that the claimant requested a copy of the brief to Occupational Health which was never provided and therefore the claimant could not be criticised for the lack of progress in relation to Occupational Health. In response, Dr Sheila Gupta stated: “As I understand it, Dr Waldron did write to Professor Sheikholeslami and tried to make that clear. I think it was just not clear.” (Bundle 3 p226). Notwithstanding this, on examination of the correspondence the Tribunal finds that the issue of the claimant’s reintegration to work via a referral through Occupational Health was repeatedly raised by Dr Kim Waldron in the correspondence of 18th July 2011, 21st July 2011, 19th August 2011 and 13th October 2011. The Tribunal also finds that the letter of 19th August 2011 was clear in its terms in that a choice of three OH providers was given and full details of the questions that would be asked of these OH providers were provided. The letter of 19th August 2011 also provided the claimant with reassurance that any forms or other documentation submitted to her chosen OH provider would be shared with her.

[25]In all of these circumstances, the Tribunal finds that notwithstanding a view among the respondents that the claimant was never going to return to the employment of the respondents (as found in para 107 of the original judgment, Bundle 1 p234) the issue of a referral to OH was a genuine attempt on the part of Dr Kim Waldron , acting on behalf of the respondents to “reintegrate” the claimant to her employment within the respondents; and that the reason that the issue of an OH referral was not progressed at that time was because the claimant never identified her choice from the three OH providers as set out in the letter of 19th August 2011.

[26]Accordingly the Tribunal finds that prior to the correspondence of 16th December 2011 (as narrated in paragraph 69 of the Judgement) the respondents were unable to progress an attempt to re-integrate the claimant into the workplace due to an “impasse” reached as a result of the claimant’s failure to respond constructively to a reasonable request from the respondents that she engage with Occupational Health.

[27]Paragraph 74 of the judgment (Bundle 1 page 226) provides: “74 The evidence of Sheila Gupta was that her understanding was that the claimant was seeking a settlement from the University and would not be returning to her previous position. For these reasons she did not explore possible options to extend the claimant’s stay in the UK and did not invoke the grievance policy despite communications made by the claimant which were (by her own admission in evidence) clearly grievances.”

[28]Paragraph 81 of the Judgment provides: (Bundle 1 page 228) “Sheila Gupta’s justification for her failures in not only progressing the claimant’s grievances but also in having no regard to the issue of disability in the termination of the claimant’s employment was simply that the claimant was seeking settlement from the respondents. However, such negotiations as there were between the claimant were not fruitful and at no point could it be said that a settlement was within contemplation.”

[29]Paragraph 106 of the Judgment provides (Bundle 1 page 233) : “Sheila Gupta gave evidence that she dismissed the claimant without considering other options under the respondents Disability Policy as she was of the view of the claimant was only interested in a settlement with the respondents. However, there was no evidence to support the proposition that settlement discussions with the claimant ever came close to fruition. Further, in evidence, Sheila Gupta admitted that the claimant never expressed the view that she wished to relinquish her position as the Chair of PetroChemical Engineering. In considering this issue the Tribunal concluded that there was no factual basis to support the proposition that the claimant wished to leave the employment of the respondents.”

[30]Notwithstanding the fact that there was no evidence to support the proposition that settlement discussions with the claimant ever came close to fruition or indeed that the claimant wished to leave the employment of the respondents, the Tribunal finds that as a matter of fact that Sheila Gupta believed that the claimant was seeking settlement with the respondents. In reaching this conclusion the Tribunal had regard to Sheila Gupta’s evidence in cross examination where she said on more than one occasion that her understanding and belief was that the claimant was seeking a settlement from the respondents. To this end, at the end of her cross examination Ms Gupta stated: “I think what I want to say is the intention was to genuinely try and achieve a satisfactory resolution to the situation, that is not to say on reflection there are not aspects in this case that we could have managed differently.” Simon Gorton then stated: “Satisfactory resolution as far as you were concerned was exiting the claimant from the university.” Sheila Gupta replied by stating: “I would wish to reiterate my earlier point I thought that Professor Sheikholeslami asked the University to seek a settlement and I really wanted to engage positively with that.” (Bundle 3 p 227) PARTIES’ SUBMISSIONS The submissions are exactly as provided by the parties The numbering in the parties’ submissions accords with the numbering in the submissions provided by them.

[31]Submissions for the Claimant The Claimant (C) The Respondent (R) 1. The ET has indicated that it would welcome a summary outline of each party’s case in order for the ET to record and embody the same in its Reasons. 2. C’s previous summary is set out in B1 p183. Structure of C’s case 3. The core structure of C’s case: 3.1. Pre dismissal matters relating to procedures and policies . Taking para 1 of the list of issues on B3 p57-62 (but this applies to identical issues under the different causes of action), this includes 1.1, 1.2 and 1.4; 3.2. Matters relating to C’s absence and steps that could have been taken to reintegrate C into work, this embraces 1.5-1.8; 3.3. Dismissal in terms of what process and procedure ought to have been followed and how it should never have taken place and/or steps that R should have taken to avoid dismissal – this embraces 1.9-1.12 and 1.14; 3.4. Dismissal and work permit issues that are embraced by 1.3 and 1.13; 3.5. Steps that should be been taken in respect of the removal of C’s lab and PHD supervision. 4. The ET is invited to approach deciding the remitted issues in this above form. Key findings 5. While C refers to its submissions on the facts as to those which the ET has found or are invited to find, as set out under Part B paras 8-20 in C’s submissions for the hearing on 28/2/19 (B3/78-92), there are a number of findings made by the ET that are critical if not determinative. 6. First, the steps R did and didn’t take in respect of C’s immigration status and imminently expiring work permit. This was the expressed reason for C’s dismissal and is therefore at the core of this case. This is set out in paras 70, 73 and 105 of the ET reasons: Gupta could and should have taken steps to contact C and ensure her immigration status was not lost and thereby her employment also not lost. Gupta did neither. 7. Second, why did R and Gupta not take those steps? Beyond admitting she should have done, her rationale (save as identified below under para 9) was that(i) C was seeking a settlement – which the ET emphatically rejected paras 81/106, and

(ii) because C was relinquishing her Chair (in other words wanting another job) which was similarly dismissed by the ET – para 82. Note, the rationale was never that there was an impasse – that is R’s case post the EAT and not before the ET; it was not the evidence or the thrust of the evidence of the witnesses for R not least Gupta. 8. Third, the applicable and eminently relevant suite of policies not applied by R and followed through. Those policies most applicable were (i) the Disability Policy (ii) The Grievance procedure dealing with gender and disability complaints, as well as the procedures set out under para 12 of the submissions (B3/78-92) for the remitted hearing. Those policies were entirely relevant to all of the applicable problems and issues that C was concerned with: her ill health; her grievances concerning her treatment because of her disability status and mistreatment because of her gender; the need for steps to be taken that were reasonable adjustments to assist C to retain her employment not least under the Disability Policy. R accepted that not to apply the Disability Policy was a “fundamental omission” – paras 73/103/106. Again, why were those policies not applied and again the rationale and defence was never that there was an impasse. 9. Fourth, the actual rationale of R (as opposed to the latterly deployed confection of impasse) in fact makes things worse for R and proves C’s case: 9.1. C’s employment could have been retained and not lost through the immigration issue as Gupta accepted – paras 73/105; 9.2. C’s grievances were never progressed because of C’s ill health – paras 103/104/107. In other words C was being penalised for being ill and absent – the clearest example of a discriminatory mindset. Again, note no suggestion was made that this was due to an impasse; 9.3. The Disability Policy was not only relevant and applicable (reasonable adjustments and avoiding dismissal being at its core) but R’s failure to apply it was a “fundamental omission”. The impasse argument again was never raised. This has even more resonance here: if R thought an impasse caused the policy to be rendered ineffective, this was its opportunity to state this; R did not; 10. Fifth, it is overwhelmingly obvious from the above that the reason for C’s dismissal was R’s lighting (or perhaps more appropriately seizing) on the expiration of the work permit issue as the dismissal letter of 11/1/12 makes explicitly clear - see para 70, as means of exiting C. The ET has already found that this was done unfairly. It is quite clear that it was done without any justification and no defensive rationale as paras 73/105 make clear. 11. Sixth, the ET can draw the necessary inferences that the dismissal was an act of avoidance by R to (i) apply its Disability Policy (ii) investigate and adjudicate on C’s grievances

(iii) avoid having to grapple with C’s serious allegations of discrimination on the grounds of sex and disability. 12. Seventh, here are a series of matters that assist the ET in drawing those necessary inferences as follows: 12.1. The insider club within the School that was materially influenced by gender discrimination and the group’s adverse reaction to C on and after the 15/2/11 meeting; 12.2. The attempt negatively to influence the Prof Shaw investigation as the ET records in paras 45/46 that came from within the School; 12.3. McCloskey’s assault on Prof Shaw’s professionalism that was extraordinary but critically betrayed the mindset of the School closing ranks against anyone who raises issue against the School – see para 99; 12.4. The injunction against contact with C and sending C to Coventry that again came from within the School and that was never revealed until Dr Glass inadvertently revealed it. That formed the basis of the finding of victimisation which C has succeeded on; 12.5. The findings of retaliation against C for having raised complaints that form the basis of the ET’s victimisation findings against R; 12.6. The deeply murky evidence of who issued the injunction and precisely to whom as exemplified by McCloskey’s evidence. 12.7. The clear suspicion that Ingram had been colluding with other witnesses while giving his evidence – para 111; 12.8. The fact that the Head of the College intentionally and deliberately lied to the ET about the critical issue of who was the decision maker. Given the importance of the issue of who made the decision and the absence of the Principal (O’Shea) from the ET proceedings, this was rightly exposed by the ET as being a fabrication. It was a fabrication that represented R closing ranks against C and attempting to mislead the ET; 12.9. The fact that both Gupta and Glass made incriminating admissions that once they realised what they had done, they both attempted to retract their evidence. This is clearly recorded by the ET for both at para 109. That is redolent of matters being concealed from the ET. R has not given the ET the full and truthful picture, as it should have done. At times the truth has spilled out only for R to then to try and retract. That ought to make the ET deeply suspicious of R and its motives; 12.10. The seriously negative and wholly unjustified slur on C by Gupta in her memo as recorded in para 196. Plainly, prejudicial views against C for having raised complaints, demonstrating that the animus and hostility to C was not reserved to the School; 12.11. How that continued into R’s XX of C that was severely criticised by the ET. The senior advocate conducting the XX is not criticised, as she was plainly acting on instructions – see para 85. 13. Eight, if necessary the ET can rely on the switching of the burden of proof in respect of all of C’s claims. Based on the above and the admissions made already by R e.g. policies were not applied because C was believed to be unwell and would not be thought to want to go through it, or the Disability Policy was not applied and no reason given for it not being applied, the burden switches to R and R’s evidence either condemns it or it has no defence i.e. rationale non discriminatory reason for the mistreatment of C. Findings applied to the claims 14. On reasonable adjustments: 14.1. The PCP was the obligation to work at the School; 14.2. All that was happening to C (absence, grievances, dismissal process) arose from the PCP or where closely connected with it e.g. grievances; 14.3. That clearly put C at a significant disadvantage next to a non disabled comparator; 14.4. Making the adjustments would have made a significant difference e.g. the policies would have been followed, C’s grievances investigated, reasonable adjustments to return to C to work would have been explored and implemented, C dismissal would have been avoided. Gupta’s evidence was to that effect. It is overwhelmingly clear that not only were the adjustments sought, they were sensible and practical and practicable; 14.5. Note that R does not argue that they were not reasonable; 14.6. Instead R argues that they adjustments would not have been relevant to the PCP because of the alleged impasse. Aside from the fact that this in an impermissible argument (as below) it is also misconceived: all the adjustments would have assisted in relieving the disadvantage flowing from the PCP which was the threat of dismissal as C felt she could not return to the School; 14.7. Moreover, R’s arguments conspicuously avoided making any submissions on avoiding dismissal as a reasonable adjustment. That is for the obvious reason that R’s argument becomes absurd when considering the PCP and dismissal: not dismissing was the obvious step to take so as to avoid the PCP; R’s case is that the PCP was not relevant to dismissal, but how can that possibly be right when the adjustment sought is to avoid dismissal when the entire basis of the PCP is one framed in dismissing C for not being able to return to the School? The core of the PCP is that C must return to work at the School and if not she is at risk of being dismissed; how can not dismissing C not be a reasonable adjustment? 15. On s15 claims: 15.1. The unfavourable treatment could not be clearer: as is exemplified in schedule, things that should have been done to and for C were not culminating in dismissal; 15.2. The something arising in consequence was C’s absence from the School and C’s inability to return to it – see EAT para 63; 15.3. Again, as much as C followed the argument, R's contention appeared to be that either the impasse broke the chain of causation or that the Gupta rationale did the same. Both are completely misconceived: as the EAT noted at para 64, the ET has already made a finding on this in para 203/205. Manifestly both were linked in a clear causative sense to C's disability and absence. 15.4. Even if the impasse argument was correct to a degree (it is not to any degree), it is irrelevant to the first causation question which the EAT analysed at para 64: R’s considerations were all directed to C’s absence and therefore disability status. C’s treatment was related or because of her disability absence; 15.5. And on the second causation question, it is absolutely clear that on the looser causation test, again C’s absence and R’s treatment of her in respect of this, which was at the heart of the issues, was because she was disabled. Again as clearly analysed by the EAT in para 65-66; 15.6. The submission that Gupta’s rationale, which was an inherently discriminatory rationale i.e. she didn’t deal with C because she was ill, somehow breaks the chain of causation (first or second question) is wholly misconceived: Gupta precisely didn’t deal with C in the way that she should have done because C was ill; 15.7. No objective justification defence has been pleaded, it was not argued before the ET at the substantive hearing, no application having been made to amend the defence to plead this, the ET simply does not have jurisdiction to entertain the defence. Even if it did, as para 111 records, no evidence was led on this and therefore no such defence can be sustained. 16. On victimisation: 16.1. C submits that what to a material extent explains R’s seemingly irrational conduct of not following procedures and policies, not exploring with C the eminently sensible steps to avoid the immigration cliff edge with C, were not pursued and were not pursued in respect of a reasons for justification that were rejected by the ET: settlement and giving up Chair; 16.2. What therefore explains (materially – it does not have to be wholly) R’s actions is a desire to see the end of C and her disputes without having to address them or follow procedure(s). This is where the work permit rationale is introduced. It is no more than a convenient device to side step difficult and demanding issues. That unquestionably is because of C’s protected acts and those protected acts materially influenced R; 16.3. That answer can be given by way of drawing inferences from primary facts or by way of the application of the burden of proof. Either way, C should succeed in her claims. 17. On sex discrimination. This is explained in C's substantive submissions. Avoiding complaints about gender discrimination is not only victimisation, it is also direct discrimination if the reasoning is to avoid and side step gender based complaints. R’s post EAT arguments 17. Finally, R has raised 2 post EAT defences that are entirely impermissible and should be rejected. 18. First, the objective justification defence under s15. See para 15.7 above. 19. Second, the impasse argument. Briefly, this should be rejected: 20.1. It is entirely new and was not raised previously before the ET. It cannot be raised now as the EAT remission statement makes clear B3 p39 para 1 Reasons – the ET is finishing off its task and not embarking on new matters. 20.2. It was neither R’s case nor its evidence. R’s case and evidence was that it not take certain steps that it ought to have done because (i) C was unwell and/or (ii) she wished to settle and/or (iii) relinquish her chair. The ET rejected the latter 2 and the former was inherently discriminatory so could not assists R in any event. Nowhere did R argue that it did not apply the relevant polices nor take steps it should have done because matters had reached an impasse. If there had been reached an impasse Gupta would have said this but her evidence expressly was not this. Waldron would have said the Disability Policy could not be applied because of an impasse, but she did not say that. Finally if there was an impasse, Gupta would have told the ET that the work permit issue was triggered by the impasse; she did not say that; 20.3. It is wrong as a matter of fact. As the transcript of the evidence makes clear in respect of Gupta's evidence, the brief that C required was never provided by R i.e. the instruction letter to the proposed expert - see B3 p226227. There was a failure to progress matters because C wanted certain procedural safeguards applied i.e. a written brief. But that was hardly an impasse. And it would not have prevented the other policies applying i.e. Disability and Grievance. And as the ET found in para 196, that was not an impasse but simply R not progressing matters once the expiration of the work permit raised its head; 20.4. It is also abundantly clear from Waldrons’s testimony and Para 69 of the ET that the issue for R was the return of C to the School and Work Permit and not any currently confected impasse as a result of OH. 20.5. Finally, the argument as to impasse, as the ET identified yesterday, conflicts with the ET’s previous findings in paras 78/101/106/107/196. Those findings were not appealed to the EAT. They cannot be challenged or implicitly set aside. Submissions for the Respondents

[1]At the request of the Tribunal the R has prepared this executive summary of the R’s submissions, original submissions, responsive submissions and the further factual findings the Tribunal is invited to make.

[2]As submitted in oral argument the R invites the Tribunal to complete the factual findings which the Tribunal partially addressed at paragraphs 67 to 68.The R submitted the sequence of correspondence from the 23rd May to the C’s rejection of the R’s proposals, specifically its’ willingness to engage in looking at the steps necessary for the C’s re integration into the workplace. The University in the letter of 13th October 2011, page 57 bundle 2, were open to reintegration back to the workplace, as they had been from April, but took the reasonable position that this would require a referral to occupational health for “informed medical guidance on how such reintegration can be achieved”. The C is given the choice of OH from three providers and it is clear that route is open to her. Her response of 22nd November 2011, page 60, simply does not take that up.

[3]The R’s position is that in so far as it is necessary for the C to establish that any of the alleged reasonable adjustments would have avoided the PCP relied on it is for the Cl to show that the proposed adjustments would have had this effect. In this respect it is R’s case that the R’s reasonable attempts at addressing her rehabilitation to work and thus avoiding the effect of the PCP rested upon obtaining occupation health guidance.

[4]R’s position is that further findings of fact can be made on the documents that: 4.1. The University were willing to explore the C’s reintegration to work but took the reasonable position that an Occupational Health referral, which it was happy should be an by external provider selected from a list by the C, should be taken to obtain informed medical guidance on how such a reintegration could be achieved.\The C did not agree to progress that proposal; 4.2. An impasse was therefore reached that meant her reintegration to work could not be advanced.

[5]The Alleged Failure to Make Reasonable adjustments contrary to Ss 20 and 21 of the Equality Act 2010

[6]The original Judgment found that the R had applied a “provision, criterion or practice”, “PCP”, that the C should attend work at the School of Engineering. The second question is then whether that placed the C at a substantial disadvantage, in relation to a relevant matter, in comparison with persons who are not disabled. If it did then the duty is engaged so as to take such steps as it is reasonable to take to avoid the disadvantage.

[7]Whether or not a step will remove the substantial disadvantage is a critical aspect in determining whether the asserted step is reasonable. In an extreme position if there is nothing the employer can do, that will have the effect of getting the disabled person back into work, it cannot be reasonable for him to have to do anything at all. Thus in HM Prison Service v Johnson

[2007] IRLR 951

, EAT where the stage had been reached that the consequences of the disability were irretrievable and the duty to make adjustments was therefore said to have fallen away. Similarly, in Conway v Community Options Ltd

UKEAT/0034/12

, [2012] EqLR 871 it was held that if an adjustment would not enable a return to work, it will not be 'reasonable' for it to be made.

[8]Here on the facts the C’s position was that she was not willing to engage with the offered steps to avoid the impact of the PCP by looking to reintegrate her into the workplace.

[9]Once that is understood none of the proposed reasonable adjustments avoid the PCP. 9.1. (15) R should have engaged with C in respect of the potential of and warned and informed C of the removal of her duties as PHD supervisor for Emad. Has no relationship to returning to work; 12.2 (14) R should have, if necessary, created a new role for C. R should have engaged with C in respect of the potential of and warned and informed C of the removal of her laboratory. The removal of the laboratory issue has no relevance, the new role (addressed in 12) is considered below; 12.3 (13) R should have engaged with C in respect of her work permit status, fully not lost at the expiration of her 5 year work permit. To the same effect (3). These alleged reasonable adjustments bring nothing to the point on addressing the substantial disadvantage the C advances; 12.4 This is equally true of the alleged adjustments around dismissal, (9), (10) and (11). They might have continued the employment relationship but they would not have addressed the substantial disadvantage. 12.5 “(4) R failed to maintain C’s pay when absent though illness and failed to keep any non-payment under review.” Has no engagement at all with removing the substantial disadvantage. There are no exceptional circumstances in this case, of the nature contemplated in O'Hanlon v Commissioners for HM Revenue & Customs

[2007] IRLR 404

(CA) and Royal Bank of Scotland v Ashton

[2011] ICR 632

such that maintaining sick pay would have removed what is alleged to be the substantial disadvantage, that the C should attend work in the School of Engineering.

[10]This reasoning addresses the C’s case on alleged adjustments 1.1, 1.2, 1.3, 1.5, 1.6, 1.7, 1.8 and 1.12

[11]The C’s case on reasonable adjustments should be dismissed.

[12]Whether the R acted contrary to S 15 of the (EqA); the C alleges that the R failed to do so in the following respects:

[13]The list of issues reflects again a broad brush approach apparently being a recast of the case on reasonable adjustment. This reflects a fundamental misconception about the application of S.15. It is clear from Trustees of Swansea University Pension & Assurance Scheme v Williams

[2015] IRLR 885

, EAT – upheld by the Court of Appeal

[2017] EWCA Civ 1008

[2017] IRLR 882

[2018] ICR 233

and now by the Supreme Court ( 17th December 2018) that the C not being treated as beneficially as she would wish is not to be equated with the C being treated unfavourably. Thus the C may seek more favourable treatment in the continuation of pay beyond normal sick pay, but that not happening is not being treated unfavourably, it is not being treated as favourably as the C would wish. That does not make out a claim under S.15.

[14]The EAT in this matter set out, following the approach City of York Council v Grosset

[2018] EWCA Civ 1105

[2018] IRLR 746

, the correct approach. Firstly it is necessary to identify the specific act of unfavourable treatment alleged, a tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B, that is clear from Simler J’s Judgment in Pnaiser v NHS England

[2016] IRLR 170

, EAT. and then it is necessary to consider two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B's disability?

[15]The first issue one considers is the alleged discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for the tribunal to decide in the light of the evidence. As to the second it does not have to have a direct causative connection and there may be causative links but it remains the case that it must be possible to say that it is something arising in consequence of the disability.

[16]It is then necessary to tease out of the issues advanced by the C what is said to be the unfavourable treatment and then to consider whether it can be said to meet the necessary causative steps. Applying a more analytical approach to the claims

[18]“2.1 R failed to apply its procedures not least in respect of sickness absence and specifically its Disability Policy” 18.1. The R did not apply its’ sickness absence and disability policy. From Paragraph 81 of the Judgment it is clear that Ms Gupta, whose was responsible for considering this, did not do so because she believed the C was seeking a settlement from the R, this dates back to proposals made by the C in May 2011. The Tribunal find that at no point could it be said that a settlement was in contemplation but that does not mean that Ms Gupta reason was not subjectively the reason for the “something” complained of. This is a subjective question not a question of whether the view was reasonable. 18.2. The belief that the C was seeking a settlement is then not something arising in consequence of the disability, it is a consequence of the overtures that the C made in May 2011 to seek resolution. The dispute with the R is not the disability and critically, as set out in the case on reasonable adjustment, the R has acted reasonably in addressing a position on needing a medical assessment on a phased return to work. That effectively became a break in the chain of causation between the disability occasioning the C’s absence and the events after the R has reasonably engaged on how that might be addressed.

[19]“2.2 R failed to apply or have regard to its procedures including the grievance procedure and dignity and respect policy.” The same reasoning applies to these policies.

[21]“2.3 To take all steps to ensure C’s immigration status (which was intimately intertwined with her employment status) would not be compromised by C’s absences and if necessary to take all reasonable steps to ensure that C would not be at risk of losing her lawful working status”.

[22]This as noted is not actually unfavourable treatment it is the R not treating the C as beneficially as she wished, the clue is the formulation “to take all steps”, there was no duty on the R to take any steps in respect of the C’s immigration status.

[23]“2.4 R failed to maintain C’s pay when absent though illness and failed to keep any non-payment under review” “2.5 R failed to reintegrate C into work” “2.6 R failed to contact C’s GP in order to assess C’s fitness and ability to return to work” “2.7 R failed to commission expert medical advice in respect of C’s condition, prognosis and return to work” “2.8 R failed to provide a brief to C as a condition precedent to C being seen by R’s Occupational Health advisers”

[24]As outlined above on the point relating to the continuation of pay none of these “somethings” are unfavourable treatment, the C is not being treated as favourably as she wanted. This is equally true of the following: “2.12 R should have considered moving C to a different place of work (here outside the school of Engineering)” “2.13 R should have engaged with C in respect of her work permit status, fully not lost at the expiration of her 5 year work permit.” “2.14 R should have, if necessary, created a new role for C” “2.15 R should have engaged with C in respect of the potential of and warned and informed C of the removal of her laboratory” “2.16 R should have engaged with C in respect of the potential of and warned and informed C of the removal of her duties as PHD supervisor for Emad” “2.17 R should have engaged with C in respect of the potential of and warned and informed C of the removal of her duties as PHD supervisor for Emad”

[25]Properly analysed these are all assertions of beneficial treatment which the C desired and not unfavourable treatment. This is reflected in the fact that the C, although unsuccessfully so, seeks to advance these matters as reasonable adjustments.

[26]This leaves the dismissal and these issues: “2.9 R should not have dismissed C and/or should have taken all reasonable steps to avoid dismissal” “2.10 R failed to avoid dismissing C” “2.11 In dismissing C, R failed to apply any of the relevant procedures applicable including the ACAS code of practice, R’s Disability Policy, Dignity and Respect Policy, Absence Management Policy, Unauthorised Absence Policy”

[27]These are capable of being unfavourable treatment but what is the “something”. It is simplistic to say it is the C’s absence, she had been absent since 2010. What leads to this process is the impasse, an impasse that’s reached by the end of 2011, as set out above, because the C is not accepting of the way forward to re integrate her into the workplace.

[28]Even if then there is a causative connection for the purpose of S.15(1) on the objective test the treatment was a proportionate means of achieving a legitimate aim. It plainly must be a legitimate aim to regularise the contractual position of an employee in respect of whom an impasse has been reached and there is a simply a sterile employment relationship. The means are clearly proportionate as termination is the only mechanism by which that can be resolved. Conclusion on S.15 The C’s claims under S.15 should be dismissed.

[30]Whether the R victimised the C contrary to S.27 of the EqA. The protected acts relied on by C are identified in C’s closing submissions to the ET dated 29/5/16 at paras 84-88 and 152-155:

[31]On C’s case the alleged protected acts are articulated in the broadest way at paras 84-88. Paras 152-155 do not assist with any degree of refinement. That is not to assert that it is denied that there were protected acts, the Tribunal found a protected act, but the lack of precision leaves the C with a broad brush assertion that they are said to be materially causative of acts which we find both in the reasonable adjustment and the S.15 claim. Ultimately this is a matter for the Tribunal who heard the witnesses but it is observed above the R’s reasonable engagement with the C in 2011, on the way forward, negates the suggestion that of the alleged acts or omissions were causatively motivated by the earlier protective acts.

[32]It is noted that the C refers back to the shifting burden of proof on the claims of sex discrimination and or victimisation, addressed below. It will be noted that the C unsuccessfully appealed the Tribunal’s original self direction on the burden of proof and it is respectfully submitted that the Tribunal make reference back to that selfdirection, at para 131 of the Judgment. Not adopting the “2 stage” process in considering the burden of proof is not an error of law, as the C’s unsuccessful appeal demonstrates. The central question is the reason “why” alleged acts of discrimination have occurred and a tribunal may proceed to address that question directly and that it is typically the more satisfactory approach.

[33]Lord Hope, in Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

, at paragraph 32, approved dicta of the former President Underhill J, as he then was, in Martin v Devonshires Solicitors: “The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance [ nb he was there referring to the guidance in the cases of Igen and Madarassy]. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors

[2011] ICR 352

, paragraph 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case. It is regrettable that a final resolution of this case has been so long delayed by arguments about onus of proof which, on a fair reading of the judgment of the employment tribunal, were in the end of no real importance.

[34]There is no basis for the burden of proof in that the matters alleged are not of themselves give rise to the inference that the specific decision makers around the objects of the C’s complaints were motivated by the fact that the C had carried out protected acts. These claims of victimisation should be rejected.

[36]Whether the R discriminated against the C because of her gender contrary to S.13 of the EqA, the alleged acts of less favourable treatment

[37]The same reasoning applies in relation to sex discrimination, this is no more than an unsubstantiated bare assertion.

[38]These claims of direct sex discrimination should be rejected. The Amendment Application

[40]The C has applied to amend her Claim to include a claim of direct discrimination, contrary to S.13 EqA, on the ground that it is alleged that the R treated the C less favourably than it would have treated others who were not disabled, the acts of less favourable treatment being relied upon being: 40.1. The R failure to apply its policies 40.2. R’s failure to treat C’s grievance as that 40.3. R’s failure to take steps to extend C’s work permit 40.4. The C’s dismissal C 40.5. dismissing the C without considering other options

[41]This amendment is made now, substantially out of time. It is open to the Tribunal to exercise a discretion to allow a claim substantially out of time under the EqA, on the basis that it is just and equitable to do so, s.124.

[42]It can neither be just nor equitable to permit this here. 42.1. The amendment is proposed after the R has closed its case, the C resisted the leading of further evidence, and R would be deprived of the ability to conduct its case knowing that it had to meet this claim; 42.2. No explanation has been provided as to why the application is being made now. The claims were first pleaded by lawyers instructed on behalf of the C in 2012. Previous applications were made to amend, in relation to holiday and notice pay, and the possibility of amendment was clearly known; 42.3. Even if material became known, through productions in the case, the application could have been made before the commencement of the evidence; 42.4. Even if it formulated on the basis of the oral evidence before the Tribunal the application could have been made before submissions and at a point when it was open to the R to lead evidence in rebuttal; 42.5. The C instead does nothing. She maintains her position on the pleaded case, on which there was judgment and an appeal and the matter is only before the Tribunal on the basis of the remitted matters.

[43]The application should be refused. DISCUSSION AND DECISION(i) Failure to make reasonable adjustments S20 and s21 of the Equality Act 2010 insofar as material provide: “20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 21 Failure to comply with the duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.” 33. In their determination of the claimant’s case on failure to make reasonable adjustments the Tribunal was guided by the decision of the EAT in this case and the terms of the remit from the EAT. In doing so, the Tribunal reminded itself that this case only involves consideration of the first requirement as set out in s20(3). 34. In terms of the claimant’s submissions, as recorded in paragraph 144 of the Judgment, the PCP is the respondents’ requirement that the claimant attend work and fulfil her role. The EAT accepted the C’s argument that it is her case that, as a disabled person with depression, she was unable to return to work at the School of Engineering and this meant her future employment was put at risk and by comparison non-disabled people who could attend work at the School of Engineering would not be put at that risk. 35. In the Joint List of Issues, the claimant’s representative lists 15 steps that the respondents should have taken. These steps are set out in the Agreed List of Issues, replicated in paragraph 8 of this Judgment. 36. It is necessary to consider whether each step would be effective in preventing the substantial disadvantage. (Conway v Community Options Ltd (UK

EAT/0034/12

; EHRC Code of Practice on Employment at para 6.28). The Tribunal also bore in mind that it is important to consider whether a combination of steps could avoid the substantial disadvantage (Burke v The College of Law and anor

2012 EWCA Civ 87

, CA; Home Office (UK Visas and Immigration) v Kuranchie EAT 0202/16) . There does not necessarily have to be a good or real prospect of an adjustment removing a disadvantage for that adjustment to be a reasonable one; it is sufficient for the tribunal to find that there would have been a prospect of it being alleviated (Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10. 37. In this case, the substantial disadvantage is that the claimant, as a disabled person with depression, was unable to return to work at the School of Engineering which meant her future employment was at risk. The Tribunal therefore has to look at the reasonable adjustments directed at overcoming the alleged substantial disadvantage and achieving the claimant’s return to work. To this end the Tribunal agrees with the submissions of Mr Reade QC that several of the alleged ‘reasonable adjustments’ are not steps or actions which would have been effective in preventing the substantial disadvantage in question – in particular the proposed ‘reasonable adjustments’ to engage with the claimant in respect of the potential of and warn and inform the claimant of the removal of her duties as a PHD supervisor; to engage with the claimant in respect of the potential of and warn and inform the claimant of the removal of her laboratory; and to maintain the claimant’s pay when absent through illness and to keep non-payments under review. The claim in respect of these adjustments fails. 38. S20(3) of the Equality Act 2010 imposes a duty “to take such steps as it is reasonable to have to take to avoid the disadvantage. “ The question whether proposed steps are reasonable is a matter for the Employment Tribunal and has to be determined objectively (Griffiths v Work and Pensions Secretary (CA)

(2017) ICR 160

(at para 73) citing Smith v Churchill Stairlifts plc

(2006) ICR 524

at paras 44-45). 39. After consideration of the Tribunal’s Findings in Fact, and given the conclusion that the respondents were unable to facilitate the claimant’s return to work as an impasse was reached due to the claimant’s failure to respond constructively to a reasonable request to engage with Occupational Health, the Tribunal came to the view that (1) it was not reasonable to expect or require the respondents to take any further steps to reintegrate the Claimant into work; (2) it was not reasonable to expect or require the respondents to take the step of contacting the claimant’s GP in order to assess the claimant’s fitness and ability to return to work; (3) it was not reasonable to expect or require the respondents to take any further steps to commission expert medical advice in respect of the claimant’s condition, prognosis and return to work; (4) it was not reasonable to expect or require the respondents to create a new role for the claimant and (5) it was not reasonable to expect or require the respondents to provide a ‘brief’ beyond the scope of what they had already provided and indicated they were willing to provide, to the claimant as a condition precedent to the claimant being seen by the respondents’ Occupational Health advisers. In this respect the Tribunal concluded that, because of the impasse reached, which was caused by the claimant the respondents were unable to obtain the medical information they required in order to attempt to re-integrate the claimant in an appropriate manner into the workplace. To this end the Tribunal was mindful of the fact that the claimant had been absent from her employment with the respondents since January 2010 with work related stress and depression. Against that background the course of action proposed by Ms Waldron was an eminently sensible and reasonable one. 40. The Tribunal considered that the proposed reasonable adjustment of “failing to avoid dismissal of the claimant” (as set out in the Agreed List of Issues at 1.9 (paragraph 8)) is not a “reasonable adjustment” in itself. To this end, the Tribunal was collectively of the view that the “reasonable adjustment” of failing to apply the respondents’ own procedures and policies (and thus potentially avoiding or reducing the risk of dismissal) is the appropriate adjustment in this context. 41. After having regard to the evidence and the guidance given by the Employment Appeal Tribunal in this case the Tribunal finds that it was reasonable to expect and require the respondents to take the following steps, in order to fulfil the duty to make reasonable adjustments; (a) to apply the respondents’ own procedures and policies in respect of sickness absence and disability; (b) to apply their grievance procedure and dignity and respect policy; (c) to take steps that they reasonably could to try to ensure the claimant’s immigration status would not be compromised by her absences caused by her disability and if necessary to take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working status; (d) to apply all of the respondents’ relevant procedures in connection with the claimant’s dismissal and (e) to engage with the claimant in respect of her work permit status, informing her of all its options with a view to trying to ensure her work status was not lost at the expiration of her 5 year work permit. By so engaging there was a prospect that the substantial disadvantage would be alleviated. These were all steps which the respondents failed to take but which they should have taken in order to comply with their duty to make reasonable adjustments within the meaning of section 20(1) of the Equality Act 2010. 42. In determining that, objectively speaking, such adjustments were reasonable the Tribunal had regard to the fact that many of the proposed adjustments consisted only of the respondents applying their own policies and procedures. Other adjustments consisted of engaging with the claimant in respect of her work permit status to avoid or minimise the risk of her right to remain in the UK and her work status being imperilled. The Tribunal were at one in finding these were reasonable steps to expect the respondents to take given that the claimant remained an employee of the respondents and given the consequences to her of losing that status. 43. Accordingly, and in respect of these adjustments specified in paragraph 41 only, the claimant’s case of failure to make reasonable adjustments under s20 and s21 of the Equality Act 2010 succeeds.

(ii) Section 15 Complaint S15 of the Equality Act 2010 provides: “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.”

[44]In determining the claimant’s claim under s15 of the Equality Act 2010 the Employment Tribunal was guided by the decision of the EAT in this case and the dicta in the recent case of Iforce Ltd v Ms E Wood (2019) UK EAT 0167-18-0301 (at paragraph 20). It is there stated: “The correct approach to section 15 was considered by the Court of Appeal in City of York Council v Grosset

(2018) EWCA Civ 1105

where Sales LJ provided the following guidance from paragraphs: “36 On its proper construction, section 15 (1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) “something”? and

(ii) did that “something” arise in consequence of B’s disability? 37 The first issue involves an examination of A’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant “something”....38 The second issue is an objective matter, whether there is a causal link between B’s disability and the relevant “something” ”

[45]The Tribunal also had regard to the authority of Williams v Trustees of Swansea University Pension and Assurance Scheme and Another

(2018) UKSC 65

in finding that insufficiently advantageous treatment does not equate to “unfavourable” treatment.

[46]In advancing the claimant’s case under s15 of the Equality Act 2010 the claimant relies upon the same steps set out in advancing the case of failure to make reasonable adjustments. Insofar as the first two matters on that list are concerned (namely the respondents’ failure to apply their own procedures in respect of sickness absence and apply their disability policy, and failure to have regard to their procedures including their grievance policy and dignity and respect policy), the Tribunal has found that Sheila Gupta believed that the claimant was seeking settlement and it was for this reason she did not apply the university’s policies and procedures. The chain of causation is broken in that the failure to apply those policies and procedures was not ‘something arising in consequence of (the claimant’s) disability’.

[47]Insofar as the issue of ‘unfavourable treatment’ is concerned it is the view of the Tribunal that the requirements toa. “ensure that the claimant’s immigration status would not be compromised by her absences and to take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working status”

b. to “maintain the claimant’s pay when absent through illness and to keep non-payments under review”;

c. to “reintegrate the claimant into work”;

d. to “engage with the claimant in respect of her work permit status fully informing her of options with a view to ensuring the claimant’s work status was not lost at the expiration of her 5 year work permit”;

e. to “create a new role for the claimant if necessary”

f. to “engage with the claimant in respect of the potential of and warn and inform the claimant of the removal of her laboratory” and

g. to “engage with the claimant in respect of the potential and warn and inform the claimant of the removal of her duties as PHD supervisor for Emad” all constitute advantageous treatment in that in these propositions the claimant asserts that she was not treated as favourably as she considered she should be treated. To this end the Tribunal agreed with the proposition of Mr Reade QC in stating that this is reflected in the fact that the claimant seeks to advance these matters also as reasonable adjustments.

[48]Insofar as it is asserted that the need to “ provide a brief to the claimant as a condition precedent to the claimant being seen by the respondents’ occupational health advisors” is concerned, the Tribunal had regard to its findings that in the letter of 19th August 2011 that the respondents undertook to share with the claimant all forms and other documentation that would be supplied to the chosen OH provider - in effect, the “brief” to the OH provider chosen by the claimant. In these circumstances the Tribunal concluded that there was no unfavourable treatment. Likewise with the need to “re-integrate the claimant into work” and “consider moving the claimant to a different place of work outside the school of engineering,” the Tribunal found that the respondents were unable to commence what they described as a “gradual scheme of re-integration" into the workplace due to the failure on the part of the claimant to respond to their reasonable request to refer her to OH. That is not something arising in consequence of the claimant’s disability. For the same reason the claimant’s case under s15 in respect of contacting the claimant’s GP in order to assess the claimant’s fitness and ability to return fails as on the facts as found by them the Tribunal were unable to conclude that this was something arising in consequence of the claimant’s disability.

[49]So far as the claimant’s dismissal is concerned, Mr Gorton identified the following as unfavourable treatment: the respondents failed to avoid dismissing the claimant; the respondents should not have dismissed the claimant and/or should have taken all reasonable steps to avoid dismissal; in dismissing the claimant the respondents failed to apply any of the relevant procedures applicable. As the Tribunal understood Mr Gorton’s position it was that the unfavourable treatment consisted of a failure on the part of the university to take all reasonable steps to avoid dismissal and that failure in turn led to the unfavourable treatment of dismissal. In determining whether there had been unfavourable treatment, the Tribunal were guided by the EHRC’s Code of Practice in Employment, paragraph 5.7 of which provides: “For discrimination arising from disability to occur, a disabled person must have been treated “unfavourably”. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment.” After having regard to this guidance, the Tribunal were of the view that the claimant’s dismissal (and the prevention of her dismissal) were capable of constituting “unfavourable treatment” and observed that this a matter which was not disputed by the respondents.

[50]The Tribunal then addressed itself as to whether dismissal arose from “something” arising from the claimant’s disability and guided themselves that this question has to be answered as an objective matter of fact. In finding that the dismissal, avoiding dismissal and taking steps to avoid dismissal (including applying all relevant procedures) did arise from “something” arising from the claimant’s disability the Tribunal had regard to the guidance from the EAT in this case. After consideration of this guidance, the Tribunal concluded that the claimant’s absence was due to her disability; and that the view that the claimant was never going to return to the employment of the respondents due to her health was reflected in the material part played by Sheila Gupta in terminating the claimant’s employment without consideration of other options as admitted by her in evidence (all as recorded in paragraph 107 of the Judgment) (Bundle 1 p234).In reaching this conclusion the Tribunal had regard to the arguments of Mr Reade QC that the claimant’s absence alone was not enough to constitute ‘something’ as the claimant had been absent since 2010. However, the Tribunal considered that the evidence of Sheila Gupta (as reflected in paragraph 107 of the Judgment) together with the fact of the claimant’s absence provided a sufficient causative link to conclude that her dismissal was “something arising in consequence of” her disability.

[51]In these respects the claimant’s case under s15 succeeds. In reaching this conclusion, the Tribunal had regard to the respondents’ arguments on objective justification, as set out in their submissions.

[52]The Tribunal observed that there were no such arguments made in the original proceedings, as recorded in paragraph 116 of the original Judgment (Bundle 1 p236). In the absence of amendment the Tribunal concluded that it was not open to them to consider such arguments made at this stage of proceedings. (iii) Victimisation and Sex Discrimination

[53]The Tribunal proceeded to consider the claimant’s claims of victimisation and sex discrimination, insofar as not already dealt with in the original judgment. In this respect the Tribunal were guided by the Joint List of Issues which set out the acts of victimisation and direct sex discrimination founded upon by the claimant all of which are reflected in the list of failure to make reasonable adjustments.

[54]In determining these issues, the Tribunal firstly concluded that the claimant had done a number of protected acts, not least of which were her letters of 14th April 2010, 23rd May 2011 and 22nd November 2011.

[55]In addressing whether the respondents’ failure to apply their policies and procedures including their sickness absence, disability policy, grievance procedure and dignity and respect policy was because of the protected acts, or alternatively because of the claimant’s sex, the Tribunal had regard to their finding that these policies were not invoked due to Sheila Gupta’s genuine belief that the claimant was seeking settlement from the respondents.

[56]The Tribunal then proceeded to consider the respondents’ failure to maintain the claimant’s pay when absent through illness. The Tribunal observes that there is no evidence that the decision in respect of failure to maintain the claimant’s pay (which was taken in late April 2010) was anything other than the respondents following their usual policies and procedures in this respect. The Tribunal finds support for this proposition in their findings arising from the evidence of Professor Alan Murray, Head of the School of Engineering at the material time (cf para 52 letter of 4th February 2011 and paras 91-94 of the Judgment, Bundle 1 pages 219 and 230). At paragraph 91 the Tribunal finds: “91 The Tribunal were of the collective opinion Professor Alan Murray came across as an inherently reasonable and measured individual. In his dealings with the claimant the Tribunal concluded that Professor Alan Murray had only attempted to resolve situations and assist the claimant albeit that at times the claimant perceived his correspondence to be patronising”. These findings were unsuccessfully challenged on Appeal. In circumstances where, at the time the decision was made to reduce the claimant’s pay the Head of the School of Engineering was attempting to resolve matters between the claimant and the respondents the Tribunal is of the collective opinion that the claimant’s claims of victimisation and sex discrimination based on her reduction of pay in late April 2010 must fail.

[57]The respondent’s failure to engage with the claimant in respect of the potential of and warn and inform her of the removal of her laboratory and engage with her in respect of the potential of and warn and inform her of the removal of her duties as PHD supervisor for Emad are all issues of victimisation that are already covered in the Judgment at paragraph 193 (Bundle 1, page 253). The Tribunal finds that these acts are solely acts of victimisation which arose from the claimant’s protected act of 14th April 2010, being a grievance the subject matter of which was sex discrimination (Finding in Fact 43, Bundle 1 page 215). The claimant’s claims of sex discrimination in this respect are therefore dismissed.

[58]The Tribunal then considered the claimant’s claims of victimisation and sex discrimination in respect of the respondents’ failure to create the claimant a new role, failure to consider moving the claimant to a different place of work, failure to reintegrate the claimant into work, failure to contact her GP in order to assess her fitness and ability to return to work, failure to commission expert medical advice in respect of her condition, prognosis and return to work and failure to provide a brief to the claimant as a condition precedent to the claimant being seen by the respondents’ Occupational Health Advisers. In view of the Tribunal’s additional Findings in Fact the Tribunal are of the collective opinion that these claims must fail. To this end the Tribunal finds that in December 2016 there was an impasse with regard to the claimant’s re-integration into the workplace due to lack of medical information; that the request for medical information was a reasonable request, given the claimant’s absence from the workplace since January 2010; and that that impasse was occasioned by the claimant’s failure to select one of the three OH providers set out in the letter from Dr Kim Waldron to the claimant of 19th August 2011. Insofar as the respondents’ failure to provide the “brief” was concerned, the Tribunal were of the collective view that the offer to show the claimant all relevant forms and documentation submitted to the chosen OH provider (as contained within the letter of 19th August 2011) would, in effect, be the ‘brief’ to the chosen OH provider. For these reasons the Tribunal considers the claimant’s claims of victimisation and sex discrimination in these respects must fail.

[59]The Tribunal then considered the claimant’s claims of victimisation and sex discrimination in respect of the respondents’ failure to take all steps to ensure the claimant’s immigration status would not be compromised by the claimant’s absences; failure to engage with the claimant in respect of her work permit status; failure to take all reasonable steps to avoid dismissing the claimant; failure to avoid dismissing the claimant; failure to apply any of the relevant procedures applicable in dismissal including their disability policy, dignity and respect policy, absence management policy and unauthorised absence policy. In this respect the Tribunal had regard again to the Tribunal’s Observations on the Evidence insofar as Sheila Gupta was concerned and to the observations in paragraph 107 where it is stated: “The view that the claimant was never going to return to the employment of the respondents due to her health was reflected in the material part played by Sheila Gupta in terminating the claimant’s employment without consideration of other options (as freely admitted by her in evidence).” (Bundle 1 p107). This observation was unchallenged on Appeal and accordingly led the Tribunal to conclude that the dismissal of the claimant by letter dated 11th January 2012 on the grounds of the expiration of the her work permit ( para 70 of the Judgment Bundle 1 p 224-225) arose from the view that the claimant was never going to return to the employment of the respondents due to her ill health. In these circumstances it is the unanimous decision of the Tribunal to dismiss the claimant’s claims of sex discrimination and victimisation on these grounds.

[60]The claimant’s additional claims of sex discrimination and victimisation are therefore dismissed. (iv) Burden of Proof

[61]The challenge to the Tribunal’s findings on the application of the burden of proof was unsuccessful on Appeal. As the Tribunal have again been able to make positive findings as to the “reason why” any less favourable treatment took place, the Tribunal is collectively of the view that there is no need to consider further the shifting burden of proof. (v) The Amendment

[62]Finally, the claimant’s counsel, Simon Gorton QC moved to amend the claim to include a further claim of direct disability discrimination under s13 of the Equality Act 2010. In support of his application to amend, Mr Gorton submitted that the claim arises directly out of admissions made by Sheila Gupta as to why certain steps that the respondents were expected to take were not taken. Mr Gorton submitted that the comparator was Professor Brandini or a non-disabled hypothetical comparator.

[63]Mr Reade for the respondents opposed the amendment on the basis that the amendment is substantially out of time; that it cannot be just and equitable to permit an extension of time under s123 of the Equality Act 2010 as the claimant has had the benefit of legal advice since 2012; there have been previous applications to amend to include cases of notice pay and holiday pay; and the application, coming as it does after the respondents have closed their case, comes too late in the day. In this respect, Mr Reade submitted that it would have been open to the claimant to make the application to amend prior to submissions in the case when there was still opportunity for the respondents to lead evidence in rebuttal.

[64]The Tribunal considered the application to amend. In doing so, it was guided by the well-known principles in the case of Selkent v Moore

(1996) ICR 836

, EAT. To this end the Tribunal considered the fact that such claims come some 7 years out of time and that there is force in the argument that even if the claimant had sought to amend her claim before submissions then the respondents would have been able to answer such amendment. In all these circumstances the Tribunal concluded that the balance of hardship and injustice favours the respondents in being faced with an additional claim that it is too late to answer, and accordingly the amendment is refused. (vi) Further Procedure

[65]On joint application, the Hearing on Remedy listed for the 15th July 2019 was discharged on the basis that there will be insufficient time to prepare for the same. Date Listing letters will be sent out to re-list the Hearing on Remedy. In the meantime, the parties undertook to co-operate and liaise with one another in obtaining additional psychiatric evidence from Dr Scott, in updating the issue of loss and in preparing for the Hearing on Remedy generally.

REASONS

[1]This case has considerable procedural history. By Judgments dated 15th March 2017 and 15th May 2019 (following a Judgment and remit from the EAT of 5th October 2018) the claimant’s claims of discrimination arising from disability, breach of duty to make reasonable adjustments and victimisation succeeded in part under the provisions of sections 15, 20, 21 and 27 of the Equality Act 2010. The claimant’s claims of unfair dismissal under section 98 of the Employment Rights Act 1996 and failure to pay holiday pay also succeeded.

[2]Against that background, a Hearing on Remedy was fixed for the 9th and 10th March 2020 and the 21st April 2020. At the Hearing on Remedy the claimant gave evidence herself and led evidence from Dr Sarah Kennedy, her treating psychiatrist. The respondents led evidence from June Bell, formerly employed as Head of Human Resources for the University of Edinburgh’s College of Science and Engineering. Dr Jacqueline Scott, also a psychiatrist, gave evidence as a jointly instructed expert. Her evidence was taken (with the agreement of both parties) by video link on the 21st April 2020. The evidence in chief of the witnesses was provided by witness statements.

[3]The parties produced a Joint Bundle of Documentation numbered 1-1043.

[4]At the outset of the Hearing the parties were reminded that the Hearing on Remedy was not an opportunity to revisit the factual findings made in the Judgments of the 15th March 2017 and the 15th May 2019. The Tribunal found that in certain respects the evidence heard at the Hearing in 2015-2016 and the facts found in their two judgments were relevant to the issue of Remedy. Findings in Fact

[5]The claimant was absent from her employment with the respondents from January 2010 with work related stress and depression. The Tribunal found that since 2010 the claimant has experienced and continues to suffer from anxiety and depression and continues to suffer from significant psychiatric symptoms. The symptoms experienced by the claimant include difficulty in sleeping, concentrating, studying, and engaging in any normal social contact or activity.

[6]The Tribunal accepted the evidence of June Bell that in spring 2010 an attempt was made by the respondents to refer the claimant to their Occupational Health service. The claimant failed to attend 3 Occupational Health appointments at that time. The respondents did not pursue the issue of attending an Occupational Health consultation with the claimant further in 2010, it being their practice not to persist in such circumstances as they considered it could be perceived as harassing the employee. However, the issue of a referral to Occupational Health was revisited by Dr Kim Waldron with a view to the claimant’s reintegration to work in the correspondence of 19th July 2011, 21st July 2011, 19th August 2011 and 13th October 2011 (para 9, judgment of 15th May 2017).

[7]The Tribunal accepted the evidence of Dr Kennedy that where, following an employee commencing a period of sick leave, there is an expeditious referral to Occupational Health such a referral is “usually successful” in bringing the employee back to work. The Tribunal also accepted the evidence of Dr Kennedy that unless a referral to Occupational Health comes reasonably soon after the employee’s absence commences it is usual for the employee to view with suspicion any subsequent approach by their employer asking them to engage with Occupational Health.

[8]The Tribunal accepted the evidence of Dr Kennedy that when the claimant was first absent from her employment with work related stress and depression in early 2010, “given the lack of past psychiatric history I would have deemed her prognosis at that time to be good with a full recovery should she have been able to return to a supportive environment with issues which she identifies as stressful being addressed” (817). In accepting the evidence of Dr Kennedy on this point, the Tribunal observed that it did not differ to any material extent from the evidence of Dr Jacqueline Scott who spoke of the pattern being one of gradual recovery, and there being a better prognosis in the absence of significant pre existing psychiatric history or vulnerability (818.2)

[9]The Tribunal accepted the evidence of Dr Kennedy (to be found in her report (815- 818)) that in the period between January 2010 and December 2011: “I would have expected her to become fit enough to return to work at any time during her time off. The factors which perpetuated her illness were work related and there were no external factors contributing to low mood.” To this end, the Tribunal accepted Dr Kennedy’s explanation that the claimant is unusual in that her work is her life and that at that time there were few stressors present in her life aside from her work.

[10]In reaching this conclusion, the Tribunal gave consideration to the evidence of Dr Scott to the effect that it is impossible to speculate whether the claimant would have been fit to return to work in the period January 2010 to December 2011 (818.2). The Tribunal preferred the evidence of Dr Kennedy in this respect as under cross examination and with reference to the activities listed in 358-359 Dr Scott did acknowledge that the claimant was fit for some work in this period.

[11]The Tribunal considered carefully the evidence of Dr Kennedy and Dr Scott to the questions posed on the issue of the link between the claimant’s referral to specialist care in February 2012 and her dismissal and the link between the claimant’s significant psychiatric symptoms in 2012 requiring periods of hospitalisation and her dismissal. After such consideration the Tribunal preferred the evidence of Dr Scott, that psychosocial stressors including persistent stress caused the claimant’s ill health. In evidence, Dr Scott described psychosocial stress as any stressor that an individual might encounter in life including, for example, difficulties with academic and immigration status and difficulties with finances and housing.

[12]Although there was not a significant difference between the evidence of Dr Kennedy and Dr Scott in this respect (Dr Kennedy stating that the claimant’s issues relating to her work were the major underlying factors in her decline in health) the Tribunal preferred the evidence of Dr Scott as they considered it to be more measured and thorough. In reaching this conclusion the Tribunal observed that Dr Scott has had the benefit of compiling four separate reports on the condition of the claimant. In concluding that the report of Dr Scott was more thorough, the Tribunal also observed that in her report of 7th February 2020 Dr Kennedy omitted making reference to the claimant’s admission to hospital in March 2012.

[13]For these reasons the Tribunal preferred the conclusions drawn by Dr Scott in her report and considered her conclusions to be more thorough and balanced than those of Dr Kennedy. In doing so, the Tribunal found that the claimant does not suffer from PTSD or a dissociative disorder as diagnosed by Dr Kennedy.

[14]The Tribunal observed that both Dr Kennedy and Dr Scott gave evidence that the dismissal of the claimant and the discovery that she had been victimised impacted upon her health. The Tribunal observed that the wording used by Dr Scott - namely that such actions by the respondents would have been a significant stress and on balance would have had a negative and detrimental impact on the claimant’s healthwas more measured that the corresponding answer by Dr Kennedy and for this reason accepted the explanation of Dr Scott in evidence.

[15]The Tribunal had regard to the evidence of Dr Kennedy and Dr Scott on the consequences of the dismissal to the claimant’s long term mental health. The evidence reflected the terms of their reports (815, 818.1). Again, there was little difference in the evidence given by both psychiatrists; on balance, the Tribunal preferred the evidence of Dr Scott in stating that it is only possible to state that the majority of individuals recover from depressive or anxiety symptoms, but that the ongoing stress would have significantly influenced the claimant’s recovery. In preferring the wording of Dr Scott, the Tribunal observed that she has had the benefit of compiling four reports on the claimant, dating back to her first report of November 2014.

[16]For the same reasons, the Tribunal also preferred the evidence of Dr Scott and did not find in fact that the actions of the respondents have caused or materially contributed to the claimant’s ongoing incapacity to work.

[17]Again, the Tribunal preferred the more measured tones of Dr Scott in finding that the claimant’s post dismissal immigration status would be classed as a further stress influencing her mental health; her inability to access public funds would be classed as a further significant stress and would undoubtedly have impacted her ability to recover from her ongoing psychiatric conditions; and the loss of her right to access the NHS would be a psychosocial stressor.

[18]On the issue of the claimant’s prognosis, the Tribunal found that the evidence of Dr Scott provided some clarity in what is a difficult area and therefore preferred that evidence to the evidence given by Dr Kennedy. The evidence of Dr Scott was that it is hoped that with the conclusion of the present proceedings the claimant will begin recovery of her psychiatric symptoms. In her oral evidence, Dr Scott stated that 30% of those who suffer from a depressive illness never recover; and in her evidence did not categorise the claimant as belonging to that 30%.

[19]The Tribunal were unable to make any Findings in Fact on what the consequences would have been for the claimant’s health had she been fairly dismissed from her employment with the respondents as no evidence was led of the same.

[20]Insofar as holiday pay is concerned, the Tribunal accepted the evidence of June Bell (which was not subject to cross examination) that all holiday pay due to the claimant was the subject of an arrestment by Sheriff Officers and was paid over to Shepherd & Wedderburn Solicitors in satisfaction of an earnings arrestment. There was no evidence that the claimant was due any further sums by way of holiday pay.

[21]Notwithstanding the foregoing, however, the Tribunal noted that in their submissions the respondents state that the claimant is entitled to a further 28 days’ holiday pay. This sum equates to the figure of £8,241.52 gross.

[22]The Tribunal accepted the evidence of June Bell and finds in fact that as the claimant commenced her employment on point 61 of the salary scale the only way for her to progress would have been for her to be nominated by her line manager and for that recommendation to be approved by the Head of School, College Committee and ultimately a central committee chaired by the Principal. The Tribunal accepted that the claimant did not have any performance issues in the course of her employment with the respondents; however, in view of the evidence of June Bell they were not persuaded by the claimant’s evidence that she would automatically have progressed from point 61 of the salary scale.

[23]The Tribunal accepted the evidence of June Bell and finds in fact that staying on past normal retirement age is very much the exception not the rule in academia; and that for an individual to stay past retirement age there has to be a particular justification for them to retain an association with the University beyond the age of 65 - for example, if they are working in a grant funded post which ends after the age of 65. The Tribunal accepted the evidence of June Bell that continuing past 65 often requires nomination by the Head of School for an honorary position with the respondents. In these circumstances the Tribunal were not persuaded by the claimant that on balance of probabilities, and after having regard to the relevant legislation, she would have continued working for the respondents beyond the age of 65.

[24]Insofar as the claimant’s continued employment with the respondents was concerned, the Tribunal had regard to their Findings in Fact on the claimant’s refusal to engage with Occupational Health to be found in the Judgment of the 15th May 2019. In particular, in para 26 of that Judgment the Tribunal reached the following conclusion: “Accordingly the Tribunal finds that prior to the correspondence of 16th November 2011 the respondents were unable to progress an attempt to reintegrate the claimant into the workplace due to an “impasse” reached as a result of the claimant’s failure to respond constructively to a reasonable request from the respondents that she engaged with Occupational Health.” Paragraph 39 of that judgment then stated: (in respect of elements of the claimant’s case of failure to make reasonable adjustments): …"the Tribunal concluded that, because of the impasse reached, which was caused by the claimant the respondents were unable to obtain the medical information they required in order to attempt to re-integrate the claimant in an appropriate manner into the workplace.”

[25]In determining the issue of the claimant’s continued employment with the respondents the tribunal accepted the evidence of June Bell (given in response to a Member’s question) that a reasonable time frame for the respondents to have dismissed the claimant with regard to their Disability Policy would have been a year from the “impasse” resulting from claimant’s refusal to engage with Occupational Health in 2011 (i.e. by late 2012). In accepting the evidence of June Bell on this point, the tribunal had regard to the terms of the respondents’ Disability Policy itself (921)

[26]The Tribunal accepted the evidence of June Bell (given in cross examination) that although dismissal of academic staff was rare, the respondents had rewritten their policies and procedures in 2011 and as a result, dismissal of academic staff would be a possibility going forward.

[27]The Tribunal accepted that the Disability Policy, along with the respondents’ Capability Policy (888) Absence Management Policy (891) and Sickness Absence Policy (918) were all applicable policies of the respondents in 2011/2012.

[28]The Tribunal finds on the unchallenged evidence of Dr Kim Waldron, given at the Hearing in 2016, that in 2012 the respondents took legal advice on the issue of the claimant’s immigration status. The advice then given was that the claimant’s work visa was linked to her specific appointment with the respondents and that were the claimant to cease that role then then her work visa would lapse. This advice was reflected in the letter from Dr Kim Waldron to the claimant of 16th December 2011 in which it was stated: “In investigating this issue further, I now understand that because you are employed on a work permit, the University cannot simply offer you another post. Your work permit is specific to your position as a Professor of Engineering at the University of Edinburgh. In order to comply with UKBA regulations, the University could only support a new work permit application if you were successful in being offered a position that was externally advertised.” (para 69 of the Judgment of 16th March 2017).

[29]Kim Waldron also gave unchallenged evidence that the legal advice then given to the respondents was that the claimant might have the right to remain in the UK by other means such as applying for indefinite leave to remain but that that was something the claimant had to activate herself.

[30]The Tribunal finds on the evidence of the claimant that following her dismissal she had to pay for her NHS treatments.

[31]The Tribunal finds on the evidence of June Bell that there was no guarantee that academics such as the claimant would be granted a paid sabbatical with the respondents. The Tribunal accepted this evidence after having regard to June Bell’s position as the former Head of HR with the respondents and her experience with the respondents between January 2007 and July 2019.

[32]The Tribunal accepted the uncontradicted evidence of June Bell that under the terms of their pension scheme the respondents do not make any pension contributions if an individual is on nil pay. For this reason the respondents made no pension contributions to the claimant’s pension from October 2010 onwards, as by that date the claimant had exhausted all her sick pay.

[33]The Tribunal finds on the evidence of the claimant that the claimant has not engaged in consultancy work since November 2009, prior to her absence on sick leave in January 2010. Observations on the Evidence

[34]In advance of this Hearing on Remedy, there was careful case management of this case. In particular, the Preliminary Hearing of 14th January 2020 set out a timeline for production of all relevant documentation. Notwithstanding this, some of the key evidence came out piecemeal and there was fault on the part of both representatives in the inevitable failure to give fair notice which ensued.

[35]Insofar as June Bell is concerned, the Tribunal observed that she retired from her employment with the respondents some time ago but, notwithstanding that, attended the Tribunal willingly to give evidence. The Tribunal found that June Bell did give reliable and valuable evidence; however, on the key issue of whether the claimant would have been dismissed fairly in the course of time the Tribunal noted that June Bell stated in evidence that the claimant would have been dismissed under the respondents’ Disciplinary and Disability policies due to her failure to engage with OH. The Tribunal observed that the evidence of June Bell that the claimant would have been dismissed under the respondents’ Disciplinary Policy was not relied upon or referred to in the respondents’ closing submissions.

[36]The Tribunal noted that in the full submissions produced by Mr Gorton issue was taken with the fact that there was no fair notice of the evidence given at the remedy hearing to the effect that there had been 3 previous referrals to OH in the spring of 2010. The Tribunal observed that the issue of referrals to OH in the spring of 2010 was foreshadowed in the ET3 (38).

[37]The Tribunal observed that neither party led expert evidence on the issue of the claimant’s immigration status and in particular the issue of the claimant’s status had she been fairly dismissed on a date after April 2012. In these circumstances the Tribunal relied upon the evidence of Dr Kim Waldron on immigration given at the 2016 hearing and observed that she was not cross examined on this passage of evidence at that hearing. SUBMISSIONS Each party produced a summary of submissions. The summaries are replicated here. The numbering in the undernoted submissions is that of the parties. For the claimant 1. The ET has expressly asked the parties to summarise their cases in an executive overview or summary. 2. This is C’s such document. It should be read expressly with(i) C’s previous closing submissions on the remitted liability hearing

(ii) C’s Position Statement

(iii) C’s closing submissions on Remedy and

(iv) C’s responsive submissions of the same date as this document. 3. C proposes to adopt themes for this document which weave in relevant issues for the ET. 4. Work and C: 4.1. Work was C’s life. She is one of a type of ultra-focused professionals whose work is their life and their life is their work. C has no immediate family of her own (save for a sister) and no children. C had very few extracurricular diversions; 4.2. Absent the ordinary distractions in life (children, family and hobbies e.g. gardening or travel) and maintaining good health, there is every reason to believe that C would have worked as long as her drive and energy for work would have permitted. That, conservatively, here would be well into her 70s and likely beyond – just like the academics identified in their 80s in RB.819+; 4.3. C was hired as a recognised world leader in her field. R was so eager to attract C that they invested in her home and expressly agreed that C would work until retirement; 4.4. C’s career path would have been in line with her dynamism. She was identified as suitable for 2 internal posts (at Vice Principal and Dean level) within a short period of being employed. She would not have been a professorial seat-filler i.e. not being dynamic and moving positively forward. The assumptions in C’s schedule of loss about her progression are moderate and cautious; 4.5. Even if C had left R’s employment (for whatever cause) there is no possible reason to think that C would have become economically inactive. She would likely have left for another equally well paid post or job. C needs to work as much financially as she does for her professional drive and professionalism. Thus, even if C was not to spend the rest of her working life at R, she would have been economically driven and active and found an alternative post in the UK or abroad (paying equally well if not better with comparable benefits) working to the age as set out above in addition to her lucrative private consulting work. 5. R’s unlawful conduct: 5.1. R’s unlawful conduct commenced in early 2011 with the retaliatory injunction to send C to Coventry that was an act of victimisation; 5.2. C was driven to raise another grievance in May 2011 when she was a disabled person. That was ignored when it should not have been. R never treated C as a disabled person. To make matters worse, the reason for not following those policies was an inherently discriminatory one: because C was unwell; 5.3. Had that not been the case, it is simply inconceivable that the Gupta memo would have been framed in the way it was let alone actioned in the way it was i.e. C’s dismissal. Had R’s grievance and disability policies been properly followed, the position would have been fundamentally different to that which C was confronted with in January 2012 with a peremptory dismissal letter based on C’s soon to lapse but eminently extendable work permit; 5.4. The effect of that dismissal (in breach of all good relevant policies and the ACAS code) has been devastating for C as analysed below. From an economic point of view, it has been disastrous: C cannot work and thus mitigate her loss (of which there is no suggestion that she has failed to do so) and thus all her losses that flow from dismissal continue. This has effectively deprived C of her career; she has not been able to move to another job and secure income; she has not been able to move on. 6. The effect on C: 6.1. The personal and health effects on C have been as serious as can be imagined; 6.2. C’s health had improved by January 2011 and C was ready to return to work. All the medical evidence makes it clear that given C’s lack of a ‘psychiatric past’ and that she is a person of considerable fortitude (to get to this place in this marathon litigation is testament enough to that) she would have returned to work (between January 2010 and December 2011, she was remotely conducting partial duties); 6.3. The failure by R to follow proper procedures and policies and treat C as a vulnerable, isolated disabled person, the dismissal letter of January 2012 and the dismissal itself with all its consequences (loss of job, status, immigration security and financial stresses e.g. bankruptcy etc) led inexorably to a significant and serious decline in C’s health that at times bordered on the catastrophic e.g. March 2012 the dissociative episode. C’s health steeply declined from a point of recovery to a point of a deep low from which she will likely never recover; 6.4. The only material explanation for C’s collapse has been R’s conduct and its effect on C. No other cause has been identified. R has desperately attempted to suggest that C was incapacitated prior to 2011 and would never have recovered – flatly in contradiction to what they argued at the liability stage i.e. that C was not incapacitated but was intentionally misleading the ET about that. There is no basis whatsoever for that highly self-motivated argument (it is the only way that R can think of trying to prevent C recovering the proper compensation she is entitled to) in fact, or on the expert evidence in which both medics concur with each other: C ought to have recovered and returned to work in 2011; R's unlawful actions explain C’s profound decline and, as the medics also agree, no other matter does; 6.5. C has been caused to suffer a significant injury to her feelings stretching back to 2011. She has also suffered unquestionably personal injury as is agreed by both medical experts and is therefore entitled to a significant award for solatium; 6.6. Economically, C has lost her career with no hope of restoring it; 6.7. Connected with this, C has lost her lawful ability to work and mitigate her loss (if she were fit and able to). She is in a ghastly immigration prison as a result of R’s actions. She has even asked R to assist to help her recover this through the Recommendation issue. Astonishingly, R has refused this. 7. R’s conduct of these proceedings: 7.1. R unreasonably insisted C was not disabled and put C to the strictest proof and in the process, R has attempted to denigrate C and cast aspersions on her honesty. Not only were those efforts rightly rejected by the ET, but they fly in the face of R's considerable efforts to employ C; 7.2. In a desperate attempt to avoid the consequences of the discriminatory conduct, R has resorted to blatantly misconceived or unsustainable arguments; 7.3. R tried to suggest that C would have been dismissed in any event but failed to identify any sustainable reason for such dismissal; 7.4. R has incorrectly misstated key parts of the medical evidence which is agreed by the medics as to the cause of her ongoing illness; 7.5. R has misinterpreted the law in suggesting there is scope to reduce C's compensation for discrimination on the basis of contributory conduct (none having been found by the ET in any event); 7.6. As was true for R's own witnesses including Prof Lesley Yellowlees who deliberately lied and tried to mislead the ET, the ET is unable to rely on R's submissions which are unreliable and patently self-serving; the ET should reject them. For the respondents

[1]This is a brief summary of the R’s submissions on remedy.

[2]It is necessary to distinguish between the acts or omissions for which the R is liable and those for which it is not. The acts and omissions which were not found to be unlawful still have their effect and those have to be brought into account.

[3]This reflects the fundamental approach to remedies: that it is necessary to consider what would have happened had the unlawful acts not occurred. That is the only basis on which remedies can properly be assessed so as to place the C in the position she would have been in had the unlawful acts not occurred. That is the correct approach to remedies, both under the Equality Act 2010 and in relation to the unfair dismissal claim under the Employment Rights Act 1996.

[4]The C’s contributory conduct in relation to her losses can properly be brought into account on both heads of remedy.

[5]Considering the world as it would have been, absent the unlawful acts, involves determining a counterfactual. The R’s submission is that properly analysed on the findings the Tribunal has made as to the impasse which was reached in 2011 there are two possible counterfactuals: 5.1. The C had changed her attitude and co-operated with the R’s proposal for referral to OH (the first counterfactual); 5.2. The impasse had remained because the C persisted in her unreasonable refusal to take the R’s proposed referral to OH ( the second counterfactual). First Counterfactual

[6]Either the return to work would have been successful or the C’s health would have meant that it was unsuccessful. In either case no losses would flow against the R.

[7]Logically the C’s refusal to co-operate with the R’s reasonable proposals for referral to OH materially contributed to all her claimed losses and to her dismissal. In the light of the Tribunal’s findings the R’s primary position is that the C should be found to have contributed to the extent of 100% to all the financial losses and remedies she claims, other than possibly the injury to feelings award in respect of the instruction not to communicate. If the Tribunal is against this primary submission, that the reduction should be 100%, then a lesser reduction should be made but it is submitted that a substantial reduction should be made in any event. This reduction to be made against again any, and all, awarded losses. Second Counterfactual

[8]Following the C’s unreasonable refusal to co-operate with the referral to OH the impasse arose. In addressing the C’s claims in relation to remedy it is necessary to consider the position of what would have happened if the unlawful acts had not happened in respect of the each of the heads of claimed loss.

[9]The inevitable conclusion is that the C would not have returned to the workplace and would not have returned to receiving payments of salary, having exhausted her sick pay entitlement. The C’s case that extending sick pay was a reasonable adjustment was rejected.

[10]Faced with the impasse and the fact that the C would not have returned to work, because of the impasse created by her own unreasonable conduct. Either then she would have remained employed but without income, because she had exhausted her sick pay entitlement, or she would have been dismissed. In either case no losses flow. There would be no issues about disability discrimination as this must have been a proportionate means of achieving a legitimate aim.

[11]The termination of the C’s employment would have been a psychosocial stressor as described by Dr Scott and she accepted in XX, by R, that termination would be a stressor in itself. If follows that even if the C had been fairly dismissed the termination would still have had the same impact on her mental well-being. There is nothing to support the proposition that the fairness or otherwise of the dismissal made a material difference in this respect.

[12]Equally lawful termination would have led to the C experiencing the same immigration issues. The evidence was only that her work permit might have been extended by the R so she could have continued in employment but that would have not extended beyond he lawful end of her employment.

[13]There is no basis for the C’s case, on her closing submissions, that her attitude would have changed had the grievance and disability policies of the R been followed. Her attitude to the reasonable proposals of the R for referral to OH are clear on the findings of the Tribunal which have been made.

[14]It follows that even on the second counterfactual the C would still have been dismissed and that would probably have had the same impact on the C’s health as the unfair dismissal. It follows that as the exercise is the calculation of remedies putting the C in the position she would have been in but for the unfair dismissal there is no basis for including any consequences for the C’s health of the unfair/discriminatory dismissal as the consequences would have been the same. Further the consequences for her immigration status would have been the same.

[15]Thus properly analysed through the counterfactual the C’s continuing health issues were not the product of the unlawful acts as the same health consequences were likely on the counterfactual.

[16]That means that the loss claims do not flow out of the unlawful acts. Specific Issues

[17]All of these issues are addressed without prejudice to the primary submissions above that there is 100% contribution and or that the losses do not flow out of the unlawful act as unlawful acts. Salary Progression

[18]There is no basis for annual spinal increase in the C’s salary had she remained in employment and no basis for advancement beyond spinal point 61. All there was the chance of an exceptional contribution allowance or an allowance for the performance of a role whilst the role was performed. Retirement Age

[19]It is not possible to say with certainty with all the elements of chance that the C would have continued in employment until the age she now professes. Sabbatical

[20]There was no right to a sabbatical and no loss should be attributed to this. Alternative Employment

[21]As to the position until now the C has remained unfit for work and would have done so on the counterfactual. As to the future the evidence of Dr Scott is that the chances are that the C will start to recover. Dr Scott did not place the C in the 30% of chronic cases where there was no prospect of improvement. On the C’s case as to her desire to work it is therefore reasonable, even on the C’s best case, to discount her losses to account for the future earning capacity. Impact on Personal Business

[22]As to the position till now the C has remained unfit for work and would have done so on the counterfactual. The future position has to be addressed as per alternative employment. NHS Medical Costs

[23]On the counterfactual the C’s immigration status would always been in doubt with the consequences for her medical costs. This head should not be awarded as it would have occurred in any event. Bank Costs

[24]The logic of the claim is that these would not have arisen but for the C’s loss of income. However the C’s loss of income ran from the date of the end of the C’s sick pay which, as set out above, did not flow out of any wrongful act on the part of the R.

[25]These losses should not be awarded against the R. Bankruptcy Costs

[26]Essentially this is an exercise in double recovery and should be rejected. The C is seeking to recover debts as well as the lost earnings from which the liabilities which form the debts would have been paid. In any event the debts arose before the unlawful acts. This head of loss should be rejected. Holiday Pay

[27]This is accepted but only in the amount of £8,241.52 gross, being 28 days of Directive holiday pay carried over from 2011 to termination. Injury to feelings

[28]Any award should be at the bottom end of the Middle Band of Vento at the appropriate time: £6,000 to £18,000. Personal Injury

[29]The primary submission is that there is no discernible personal injury occasioned by the unlawful acts. The dismissal and the impact on the immigration would have happened in any event with the consequent psychosocial stressors.

[30]The R’s position is that on the present expert evidence there is no basis for asserting that the unlawful acts of discrimination occasioned the C any personal injury or made a material contribution to her condition at the date of the unlawful acts: 30.1. The C’s underlying depressive condition relates back to 2010 and she has not made a recovery yet, but if there was an opportunity to seek to do so in 2011 but the C unreasonably declined the proposed referral to OH which might have formed the basis of a return to work; 30.2. In so far as there are psychostressor events which may have caused the episodes in the C’s medical history these are events which would have happened in any event, even if they had not been unlawful, thus the C would been dismissed, she would have experienced the uncertainly over her immigration status and her financial position would have become strained.

[31]If there is an award for personal injury it needs to be apportioned to reflect the lawful and unlawful contributing factors. Applying the approach in BAE Systems Ltd v Konczak

[2017] IRLR 893

it is submitted that it is not possible to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer's wrong, in the sense of a unlawful acts, and a part which is not so caused, i.e. the pre-existing condition of the C’s depression and or the events which would have occurred in any event, so far as the C’s dismissal, her immigration status and the financial pressures she experienced.

[32]There is then no basis for making a separate award for personal injury in this case.

[33]If there is an award it should only be on the basis of the discreet psychotic episodes.

[34]If there is an award it should be in the moderately severe bracket, £5,000 to £16,270. The most that can be said on the medical evidence is that this is an exacerbation case in respect of which recovery is likely.

[35]Any such award has to be reduced to reflect the overlap with injury to feelings, it is necessary to consider the quantum for personal injury and the injury to feelings award and adjust them both so that there is no overlap between the two, HM Prison Service v Salmon

[2001] IRLR 425

. Aggravated

[36]No award falls under this head in Scotland. Congenial Employment

[37]No comparables are advanced for this alleged head of loss and there appears to be double recovery in claiming this and full loss of earnings. No basis is given for the figure advanced. Stigma Damages

[38]No evidence has been led to support the case that the C is stigmatised on the labour market. The C’s case is that she cannot work. This is simply unstainable even if, as Dr Scott opines, the C’s condition will improve once the litigation is over. Interest

[39]The principle is accepted but it should not run from 2010 but only from the end of 2011. Grossing Up

[40]This issue cannot be addressed until the primary findings on remedies are made. Recommendation

[41]The proposed letter achieves no purpose which could not have been addressed by the C herself. The remedy should be rejected. ACAS uplift

[42]If the Tribunal makes any uplift should have regard to the amount of the award to be uplifted, per Chagger v Abbey National plc

[2009] EWCA Civ 1202

[2010] IRLR 47

(CA). Thus if the total amount of the award is substantial the uplift, if made, should be a small one. Expenses

[43]The C’s application for expenses, which appears only to relate to the issue of disability should be rejected. The R was entitled to test this issue and no costs appear to have been incurred by the C in relation to this issue. Discussion and Decision38. The Tribunal commenced its deliberations by reminding itself that in assessing Remedy the onus of proof lies upon the claimant, on the balance of probabilities, to prove her losses. Unfair Dismissal

39. In terms of the judgment of the 15th of March 2017, the claimant succeeded in her claim of unfair dismissal.

40. In considering the claimant’s loss arising from her claim of unfair dismissal, the Tribunal had regard to the terms of s119 and s123 of the Employment Rights Act 1996. S119 of the Employment Rights Act 1996 provides for a basic award to a successful claimant. The parties have agreed in the Joint List of Issues that the correct sum to be awarded by way of a basic award is the sum of £2,850. The Tribunal therefore awards the claimant the sum of £2,850 basic award.

41. s123 of the Employment Rights Act 1996 provides: 123 Compensatory award (1) …the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal so far as that loss is attributable to action taken by the employer.”

42. In assessing compensation, the Tribunal had regard to not only the terms of s123 of the Employment Rights Act 1996 but also to the principles in the case of Polkey v AE Dayton Services Ltd

1988 ICR 142

, HL. In applying the words of s123 these principles provide for a reduction in compensation to reflect the likelihood that the employee would still have been dismissed in any event had a proper procedure been followed. 43. In considering the Polkey principles, the Tribunal had regard to the authority of Andrews v Software 2000 Ltd

(2007) IRLR 568

and the guidance there given to the application of Polkey. In para 54 of the judgment Elias J summarised such guidance thus: “ (1) in assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. …(4) (The Tribunal) must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.”.

[44]The Tribunal reviewed the evidence before it, with the guidance in Andrews v Software 2000 in mind. To this end, the Tribunal reminded itself again of the terms of paragraph 26 of the judgment of the 15th May 2019 in which the Tribunal found that by mid December 2011 the respondents were unable to progress an attempt to re-integrate the claimant into the workplace due to an “impasse” reached as a result of the claimant’s failure to respond constructively to a reasonable request from the respondents that she engage with Occupational Health. The Tribunal noted that in this judgment they found that the claimant failed to engage with OH on 3 occasions in the spring of 2010 and observed that this only served to reinforce their Finding in Fact at paragraph 26 of the May 2019 judgment.

[45]In deliberating this issue, the Tribunal had regard to the terms of the respondents’ Capability Policy and Absence Management Policy (888,891). The Tribunal noted that the latter document provides: “12 Long Term Absence Long term absence from work will normally be considered to be an absence which will last for more than four weeks. Long Term Absence Management Where there are indications that the sickness will be prolonged or employees are unable to indicate when they are likely to return, managers, in conjunction with their HR Advisor, will arrange a referral to the OHU.... In the event that employees refuse to attend an appointment, or to participate in a referral to the OHU, then a decision regarding management of the case will be made on the information available.” To this end, the Tribunal observed that by late 2011 the claimant had been absent for almost 2 years; and that in that time she had refused to engage with Occupational Health. The Tribunal considered again their finding that by late 2011 an ‘impasse’ had been reached and the respondents were unable to progress the re-integration of the claimant to the workplace due to the failure of the claimant to respond to numerous requests to attend Occupational Health.

[46]In deliberating this issue, the Tribunal had regard to the evidence of June Bell, that dismissal of academic staff was rare but that in 2011 the respondents had rewritten their policies and procedures which meant that dismissal of academic staff would be more of a possibility going forward. The Tribunal considered that the circumstances in which the respondents found themselves in late 2011 were exceptional circumstances such as would justify the dismissal of the claimant.

[47]The Tribunal also noted that in the course of this Hearing they found that a reasonable time frame for the respondents to have dismissed the claimant with regard to their Disability Policy would have been by late 2012.

[48]In considering this issue, the Tribunal also took into account that the claimant’s dismissal was found to be unfair on procedural grounds only.

[49]After taking into account all of the foregoing, the Tribunal were of the unanimous view that, given the “impasse” that had been reached by late 2011, the claimant would have been fairly dismissed by December 2012 under and in terms of the respondents’ Capability, Sickness, Disability and Absence Management Policies. In reaching this conclusion the Tribunal were of the view that the respondents could not be expected to maintain an employment relationship with an employee who, over a period of two years, failed to respond constructively to reasonable requests to engage with Occupational Health in an attempt to re-integrate her into the workplace.

[50]The claimant had exhausted her right to sick pay by October 2010. As she was on nil pay the respondents had ceased paying pension contributions in accordance with their pension policy. In these circumstances the Tribunal makes no award for the claimant’s salary or pension loss.

[51]The claimant also claims £750 loss of employment rights. The Tribunal considered that it was correct to make such an award. However, given their conclusion that the claimant would have been fairly dismissed in December 2012, the Tribunal were unanimous in concluding that the appropriate figure for loss of employment rights is £250.

[52]The claimant seeks an uplift under the Acas Code of Practice in terms of s207A of the Trade Union and Labour Reform (Consolidation) Act 1992. After considering their Findings in the Judgment of 15th March 2017, and in particular the respondents’ failure to follow any procedure in the claimant’s dismissal and failure to deal with the claimant’s grievances, the Tribunal determined that the appropriate increase for the claimant’s compensatory award is 25%.

[53]In assessing compensation, the Tribunal considered also the issue of contribution under and in terms of s122(2) and s123(4) of the Employment Rights Act 1996, relied upon by the respondents in their submissions. In assessing contribution, the Tribunal considered it apt to reflect on their findings on unfair dismissal, contained within the judgment of the 15th March 2017. It is there stated: “Unfair dismissal 196 The tribunal considered that the respondents had a potentially fair reason for dismissal which was a belief that the claimant could no longer legally continue to work in the UK. However, the Tribunal considered that dismissal for this reason was not within the band of reasonable responses because of the procedure adopted.”

[54]The claimant’s dismissal was therefore found to be unfair on procedural grounds. The Tribunal went on to list such grounds. In these circumstances the Tribunal found it impossible to envisage how the claimant contributed to her unfair dismissal. In so finding, the Tribunal determined that the necessary causal connection between the claimant’s conduct and her dismissal had not been established. Holiday Pay

[55]In view of the respondents’ concession, the Tribunal orders the respondents to make payment to the claimant of the sum of £8,241.52 gross, which represents 28 days’ holiday pay. Compensation for Discrimination

[56]In assessing compensation for discrimination, the Tribunal had regard to the terms of s124(6)in combination with s119(3)(a) of the Equality Act 2010. The effect of these provisions is that the Tribunal must approach damages as Sheriff Court would in a case of reparation; in other words, the Tribunal must ascertain the position that the claimant would have been in had the discrimination not occurred.

[57]In calculating loss, the principles in Polkey v A E Dayton Services Ltd are applicable in the approach to compensation (Abbey National plc and another v Chagger

2010 ICR 397

CA). Victimisation-s27 of the Equality Act 2010

[58]In assessing compensation for discrimination, the Tribunal had regard to their previous Findings in Fact as well as those contained within this judgment. To this end, in terms of the judgment of the 15th March 2017 the Tribunal found that a failure to communicate two key decisions to the claimant arose because there was an instruction not to contact the claimant which, in turn, came about because the claimant had done a protected act (paragraph 193-194 of the judgment of 15th March 2017). For these reasons the claimant’s claim of victimisation succeeded in part.

[59]The Tribunal had regard to the fact that the decision not to communicate two key decisions to the claimant caused the claimant distress. However, this decision comprised a discrete passage of events. The Tribunal therefore awards the sum of £2,800 to the claimant in respect of the victimisation element of her claim, being a sum at the mid point of the lowest band of the guidelines in the case of Vento v Chief Constable of West Yorkshire Police

(2002) EWCA Civ 1871

applicable at the material time, with interest thereon in the sum of £2072. Interest is calculated at the rate of 8% from February 2011. Failure to Make Reasonable Adjustments- s 20 and 21 of the Equality Act 2010

[60]In considering the claimant’s claim of failure to make reasonable adjustments, the Tribunal had regard to their conclusions in the judgment of the 15th May 2019. There, the Tribunal found that the respondents failed to make reasonable adjustments in that they failed to apply their own procedures and policies in respect of sickness absence and disability; failed to apply their grievance procedure and dignity and respect policy; failed to take steps that they reasonably could to try to ensure that the claimant’s immigration status would not be compromised by her absences caused by her disability and if necessary; failed to apply all of their relevant procedures in connection with her dismissal; and failed to engage with the claimant by informing her of all the options with a view to trying to ensure her work permit status would not be lost. The Tribunal concluded that had the respondents taken these steps then there was a prospect that the substantial disadvantage (being the claimant’s inability to return to the School of Engineering causing her future employment to be at risk – para 37 of the judgment of 15th May 2019) would be alleviated.

[61]The Tribunal reminded itself again of the terms of paragraph 26 of the same judgment where the Tribunal concluded that by December 2011 the respondents were unable to progress an attempt to re-integrate the claimant into the workplace due to an “impasse” which had been reached as a result of the claimant’s failure to respond constructively to a reasonable request from the respondents that she engage with Occupational Health.

[62]At the Hearing on Remedy the Tribunal accepted the evidence of June Bell to the effect that there were further attempts to engage the claimant with OH in early 2010, but that at that time the claimant failed to attend 3 OH appointments. After considering this evidence in conjunction with their Findings in the Judgment of the 15th May 2019, the Tribunal finds that the adjustments identified would not have alleviated the substantial disadvantage identified, namely the claimant’s inability to return to the School of Engineering, so causing her future employment to be at risk. The Tribunal drew this conclusion after reaching the collective decision that the respondents were unable to re-integrate the claimant into the workplace in any capacity due to her repeated refusal to engage with Occupational Health. For these reasons it is the decision of the Tribunal to award a relatively nominal sum in respect of pain and suffering in satisfaction of the claimant’s claim of failure to make reasonable adjustments. In all the circumstances the Tribunal awards the claimant the sum of £2,000, being a figure in the lowest band of the guidelines in Vento. Interest on this sum is awarded in the figure of £1,360, calculated at the rate of 8% from December 2011. Discrimination Arising from Disability- s15 of the Equality Act 2010

[63]Insofar as the claimant’s claim under s15 of the Equality Act is concerned in their judgment of 15th May 2019 the Tribunal found that the respondents were in breach of s15 by dismissing the claimant, avoiding her dismissal and taking steps to avoid her dismissal (including applying all relevant procedures). The claimant’s dismissal was therefore found to be discriminatory.

[64]In the light of the evidence accepted by the Tribunal at the Hearing on Remedy, however, it is the decision of the Tribunal that by December 2012 the respondents would have fairly dismissed the claimant due to the “impasse” that had been reached by late 2011. Pain and Suffering

[65]In assessing damages for pain and suffering the Tribunal had regard to their findings and conclusions in this Judgment, both from the evidence taken from the psychiatrists and on the fact that the claimant would have been dismissed fairly in any event by December 2012. The Tribunal also had regard to their findings and conclusions made in their Judgments of 15th March 2017 and 15th May 2019.

[66]To this end the Tribunal observed that the claimant continues to suffer from significant psychiatric symptoms. The Tribunal noted that such symptoms were exacerbated shortly before and after the claimant’s dismissal when she required periods of hospitalisation.

[67]In considering the issue of damages for pain and suffering, the Tribunal had regard to the well known principle that if a number of factors contribute to an injury it is sufficient that the contribution which the factor attributable to the respondents’ fault made to the injury was material (Simmons v British Steel SC (HL) 1994). In this respect the Tribunal was of the view that the psychiatric evidence was sufficient to support the conclusion that the respondents’ actions made a material contribution to the claimant’s symptoms from 2012 onwards. To this end, the Tribunal noted that they accepted the evidence of Dr Kennedy that between January 2010 and December 2011 there were no external factors contributing to the claimant’s low mood and that in the view of Dr Kennedy the claimant could have become fit enough to return to work at any point during this period.

[68]In assessing an award for pain and suffering, the Tribunal had no direct evidence before them as to the effect on the claimant of a fair dismissal in December 2012 on the claimant. However, the Tribunal concluded that, given the evidence before them and in particular the body of evidence that the claimant’s work was her life then a fair dismissal would, in all likelihood still have had considerable impact on the claimant. In reaching this conclusion the Tribunal had regard to the reference made by Dr Scott to ‘psychosocial stressors’ being the cause of the claimant’s exacerbation of her ill health in 2012. The Tribunal also had regard to the evidence that ‘psychosocial stressors’ could consist of any stressor that an individual might encounter in life, and observed that a fair dismissal would have also had a considerable effect on the claimant’s academic status, her finances and her immigration status as, according to the evidence of Dr Kim Waldron the claimant’s work permit was specific to her position as a Professor of Engineering with the respondents.

[69]The Tribunal also had regard to the fact that the claimant was absent from her employment with work related stress and depression from January 2010. The claimant’s absence at this time was not caused by any act of discrimination on the part of the respondents. The Tribunal found that in 2010-2011 the claimant had opportunity to engage with OH with a view to re-integration into the workplace but chose not to so engage. The Tribunal found that successful re-integration into the workplace would have resulted in a good prognosis for the claimant’s recovery.

[70]Finally, the Tribunal had regard to their findings on the evidence of Dr Scott that the claimant is not in the 30% of individuals who never recover from depressive illness; and that it is hoped that on termination of these proceedings the claimant will begin a process of recovery.

[71]After having regard to the foregoing and to the terms of s124(6) and s 119(3)(a) of the Equality Act 2010, it is the decision of the Tribunal to award the claimant the sum of £25,000 for pain and suffering being a sum in the mid-range of the top band of the Vento guidelines applicable in 2012. The Tribunal reached the decision to award such compensation after having regard to the evidence of the claimant’s ongoing symptoms together with their observations on the effect of a fair dismissal on the claimant, the evidence of the claimant’s pre-existing stress and depression and her failure to engage with OH in 2010-2011, and the evidence that was available to them on the prognosis for the claimant’s recovery. Interest on this figure amounts to £16,200, calculated at the rate of 8% from April 2012. Psychiatric Injury

[72]The Tribunal considered carefully the issue of the making of an award for the claimant’s claim in respect of psychiatric injury. The Tribunal declined to make this award as they were of the view that the cause of the claimant’s significant psychiatric symptoms from April 2012 was the same as the cause of her claim for pain and suffering for discrimination arising from disability under s15 of the Equality Act 2010. To this end the Tribunal observed that that cause was the fact of and manner of the claimant’s dismissal in 2012. Equally, the claimant’s claim for an award for psychiatric injury is based on the evidence heard from Dr Scott and Dr Kennedy on the effect on the claimant’s mental health of her dismissal in 2012. The Tribunal noted that the evidence of the effect of the dismissal on the claimant’s mental health and the evidence of her psychiatric symptoms from 2012 was taken into account by them in formulating an award to the claimant for pain and suffering under s15 of the Equality Act 2010. Likewise, the factors that might discount such an award for psychiatric injury (such as the effect of a fair dismissal on the claimant, the claimant’s pre-existing stress and depression and her failure to engage with OH and the claimant’s prognosis for the future) were all taken into account by the Tribunal in assessing the award made to the claimant in respect of pain and suffering for her claim under s15 of the Equality Act 2010.

[73]In these circumstances the Tribunal concluded that to make an award for psychiatric injury would result in the claimant benefitting by ‘double recovery’ in these proceedings. Past and Future Loss

[74]In ascertaining past and future loss, the Tribunal had regard to their conclusion that the claimant would have been dismissed fairly by December 2012 having due regard to the respondents’ relevant policies.

[75]On the evidence of Dr Scott, the Tribunal did not find that the actions of the respondents have caused or materially contributed to the claimant’s ongoing incapacity to work.

[76]In the period up to 12th April 2012 the claimant was not in receipt of sick pay from the respondents as she had exhausted her entitlement to the same. The Tribunal therefore finds that the claimant has sustained no wage loss by the discriminatory actings of the respondents and, as she was on nil pay, has sustained no pension loss.

[77]The Tribunal finds, however, that the claimant is entitled to a sum equivalent to eight month’s free NHS benefits. Interest is payable on this sum. No evidence was presented to the Tribunal to enable them to quantify this sum.

[78]Insofar as the loss of the claimant’s immigration status is concerned, the Tribunal noted that the claimant’s work visa was unique to her job and, therefore, she would have suffered a loss of immigration status in December 2012 even had her work visa been renewed in April 2012.

[79]The Tribunal observed that the claimant’s position is that the loss of her immigration status prevented her from applying for other jobs in the UK. However, the Tribunal were hampered in ascertaining this loss due to lack of evidence. Aside from the claimant’s own evidence in paragraph 41 of her witness statement (regarding an email from an executive search firm about a vacancy at UCL) there is no evidence of alternative employment in the UK which the claimant would have been likely to secure had the respondents not allowed her work visa to lapse. There is no evidence that the claimant would have remained in the UK in circumstances where she had no family or ties to the UK.

[80]The Tribunal makes no award in respect of loss of external earnings such as consultancy fees. To this end the Tribunal observes that the claimant ceased all consultancy work prior to absenting herself on sick leave in January 2010. The Tribunal concluded that there is no clear evidence linking the acts of discrimination for which the respondents are liable in these proceedings (commencing with the acts of victimisation in February 2011) to the cessation of consultancy and other external work undertaken by the claimant.

[81]The Tribunal makes no award in respect of the bank charges incurred by the claimant or the costs of the claimant’s bankruptcy proceedings as the Tribunal concluded that the claimant would have been fairly dismissed by December 2012 under the respondents’ relevant policies. In any event the Tribunal noted that the cessation of salary and pension payments to the claimant in October 2010 was not found to be a discriminatory act on the part of the respondents.

[82]Likewise, the tribunal makes no award of benefits the claimant might have received had her work visa not been allowed to lapse as the Tribunal concluded that the claimant would have been fairly dismissed by December 2012.

[83]The Tribunal, having accepted the evidence of June Bell, makes no award to the claimant in respect of loss of rights to a sabbatical.

[84]The Tribunal observes that aggravated damages are not recognised as a separate head of damages under Scots Law (D Watt (Shetland) Ltd v Reid EAT 0424/01).

[85]The Tribunal makes no award to the claimant in respect of loss of congenial employment and stigma damages. In reaching this decision the Tribunal had regard to the fact that the evidence is that in her career the claimant has not worked solely in academia. Insofar as stigma damages are concerned there is no evidence on the effect of these proceedings on the claimant’s reputation. The Tribunal observed further that there was evidence to the effect that the claimant had litigated in both Australia and Canada prior to coming to the UK; and that these litigations had not prevented her securing her position with the respondents. Recommendation

[86]The Tribunal observes that it has the power to make a recommendation under s124(2)(c) of the Equality Act 2010. In view of the terms of s124(3), the Tribunal declines to make such an award as the claimant is no longer in the employment of the respondents.

[87]Further and in any event, the Tribunal declines to exercise its powers to make such a recommendation in light of the conclusions reached in this judgment and in particular the Tribunal’s conclusions that the claimant would have been fairly dismissed eight months after her actual dismissal, and that a fair dismissal would have had considerable impact on her immigration status. Expenses

[88]The Tribunal notes the parties’ position on expenses (including the claimant’s additional submissions of 22nd May 2020). After deliberating this issue, the Tribunal reserves the issue of expenses as they consider it would be beneficial to have further submissions on the same in view of the Judgment in this case.

Summary

[89]The Tribunal awards the claimant the sum of £2,850 basic award in respect of her claim of unfair dismissal. The Tribunal awards the claimant the sum of £312.50 for loss of employment rights which comprises an award of £250 with an 25% uplift under TULR(C)(A) 1992. The Tribunal awards the claimant the sum of £8,241.52 gross in respect of her claim of holiday pay. The Tribunal awards the claimant the sum of £2,000 with interest of £1,360 in respect of her claim of failure to make reasonable adjustments. The Tribunal awards the claimant the sum of £2,800 in respect of her claim of victimisation with interest of £2,072. The Tribunal awards the claimant the sum of £25,000 in respect of pain and suffering with interest of £16,200 together with a sum equivalent to 8 months’ NHS benefits plus interest in respect of her claim for discrimination arising from disability. The Tribunal makes no award to the claimant in respect of her claim for psychiatric injury. Future Procedure

[90]This case will be set down for a PH on case management/future procedure in respect of quantum of this case including the issue of the grossing up of the award made to the claimant. At the PH there will also be a discussion on future procedure as regards the expenses of this action.

BACKGROUND

[1]This case has a lengthy procedural history. The claimant’s employment with the respondent started on 1 May 2007. It ended on 12 April 2012. The claims were presented on 11 March 2012 and 11 July 2012, respectively. The claimant brought a number of complaints including unfair dismissal and different types of sex discrimination and disability discrimination. By judgment dated 15 March 2017 (“the first liability judgment”) (RB62 to 119), the claimant was found to have been unfairly dismissed and to be entitled to holiday pay. A complaint of victimisation succeeded in part. The complaints of sex and disability discrimination were dismissed. The claimant appealed to the Employment Appeal Tribunal (“EAT”). By judgment handed down on 5 October 2018 (RB120 to155), the EAT allowed the claimant’s appeal in relation to the reasonable adjustments, discrimination arising from disability, sex discrimination and victimisation complaints The case was remitted to the same Tribunal for reconsideration.

[2]By judgment dated 15 May 2019 (“the second liability judgment”) (RB156 to 210), the reasonable adjustments and disability related complaints succeeded in part. The Tribunal dismissed the remitted victimisation and sex discrimination complaints.

[3]The case proceeded to a remedy hearing in March and April 2020. The Tribunal by judgment dated 3 July 2020 (“the remedy judgment”) (RB Volume 3 pages 162 to 196), awarded the claimant(i) a basic award of £2,850 and a compensatory award of £312.50 in respect of unfair dismissal;

(ii) an agreed figure of £8,241.52 for arrears of holiday pay;

(iii) an injury to feelings award of £2,000 with interest of £1,360 in respect of the failure to make reasonable adjustments,

(iv) an injury to feelings award of £2,800 with interest of £2,072 in respect of victimisation;

(v) an injury to feelings award of £25,000 with interest of £16,200 together with a monetary award equivalent to 8 months’ NHS benefits with interest in respect of discrimination arising from disability. The remedy judgment was subsequently reconsidered and by judgment dated 3 July 2020 (Volume 3 pages 198 to 203), the Tribunal increased the awards where appropriate to take account of uplifts under Section 207A of TULRCA 1992.

[4]The claimant appealed the remedy judgment to the EAT. By Order dated 31 May 2022 (Volume 4 1595), the EAT allowed the appeal to the extent of setting aside the remedy judgment on the following issues;(1) the amount of any compensatory award due in respect of the respondent’s unfair dismissal of the claimant;

(2) the amount of any further economic loss caused to the claimant by the respondent’s disability discrimination against and victimisation of the claimant referred to in the Employment Tribunal’s Judgments of 15 March 2017 (the first remedy judgment) and 15 May 2019 (the second remedy judgment); and

(3) the amount of any injury to feelings award due in respect of the respondent’s discrimination against the claimant arising from disability in terms of the Employment Tribunal’s Judgment of 15 May 2019 (the second remedy judgment).

[5]The above issues were remitted for a rehearing before a differently constituted Employment Tribunal.

[6]When determining the scope of the remit from the EAT, the Tribunal gave careful consideration to the terms of the above Order and the EAT’s judgment dated 31 May 2022 (Volume 4 1566 to 1594).

[7]In terms of the compensatory award for unfair dismissal, the EAT summarises (at paragraph 8 (a) of its judgment) the findings in fact from the first liability judgment as follows; “the respondent’s reason for dismissing the claimant was that it believed that the claimant’s 5 year work visa was due to expire such that she could no longer legally continue to work in the UK. The dismissal was, however, not within the band of reasonable responses and was procedurally unfair. The respondent had failed to explore options that might have allowed the claimant to remain in the UK and had failed to engage with her about her medical condition or whether she could return to work. It also did not offer a meeting before dismissing her and had not offered an appeal against the dismissal.”

[8]In terms of the complaint of victimisation, the EAT summarises (at paragraph 8 (c) of its judgment) the findings in fact from the first liability judgment as follows; “on 14 April 2010, the claimant had made a formal complaint of sex discrimination against the respondent. That complaint was a protected act. The claimant was thereafter subjected to detriments on a number of occasions because she had done that protected act. Specifically, the claimant found that she was regarded by a number of colleagues as “an individual to be distrusted and disliked.” An instruction was issued by a representative of the respondent that no contact was to be made with the claimant other than through her solicitors. In consequence, certain decisions about the claimant (which decisions were not themselves found to be acts of discrimination/victimisation) were not intimated to the claimant as they should have been. The respondent’s failure to communicate those decisions because there was an instruction not to contact the claimant. That instruction came about because the claimant had done a protected act.”

[9]In terms of the reasonable adjustment complaint, the EAT summarises (at paragraph 8 (d) of its judgment) the findings in fact from the second liability judgment as follows; “the Tribunal identified adjustments that it considered the respondent ought to have made for the claimant’s disability in terms of section 20(1) EA. The adjustments it found that the respondents had failed to make were:(i) “to apply its own procedures and policies in respect of sickness absence and disability;

(ii) to apply its grievance procedure and dignity and respect policy;

(iii) to take steps that it reasonably could to try to ensure the claimant’s immigration status would not be compromised by her absences caused by her disability and if necessary, take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working status;

(iv) to apply all of its relevant procedures in connection with the claimant’s dismissal; and

(v) to engage with the claimant in respect of her work permit status, informing her of all options with a view to trying to ensure her work status was not lost at the expiration of her 5 year work permit.”

[10]The EAT emphasised that adjustments (iii) and (v) above were particular to the claimant’s position, related to the issue of immigration status and were relevant for the purposes of the appeal.

[11]In terms of discrimination arising from disability, the EAT summarises (at paragraph 8 (e) of its judgment) the findings in fact from the second liability judgment as; “the claimant’s lengthy absence was due to her disability; (ii) in consequence, the respondent’s view was that the claimant was never going to return to work; and (iii) her dismissal was “something arising in consequence of her disability” and was not justified.”

[12]As regards the counterfactual findings - what might have been had the claimant not been unfairly dismissed or discriminated against by the respondent - the EAT observed (at paragraph 52 of its judgment) that the Tribunal did not seem to have considered what would (or might) have happened if the respondent had complied with its duties. The EAT also observed (at paragraph 52 of its judgment) that the Tribunal’s conclusion about “the impasse” did not “sit comfortably with the Tribunal’s earlier conclusion that the respondent had failed to engage with the claimant about her medical condition or whether she could return to work”. The EAT decided (at paragraph 53 of its judgment) that “the Tribunal’s conclusion that there would have been a fair dismissal in any event in December 2012 cannot stand”.

[13]The EAT states (at paragraph 55) that the parts of the remedy judgment dealing with(i) basic award;

(ii) holiday pay: (c) injury to feelings awards for victimisation and failure to make reasonable adjustments and (d) the refusal to make a separate solatium award are all unaffected by its conclusions. The remaining parts of the remedy judgment were set aside for a re-hearing on the three issues identified above at paragraph 4.

[14]The parties were in agreement that when calculating the award for injury to feelings in respect of the complaint of discrimination arising from disability, the Tribunal should not have reduced the award to £25,000 to reflect the irrelevant consideration of the likelihood of a future fair and non-discriminatory dismissal.

[15]At the start of the remedy hearing before this Tribunal, the parties were allowed time to finalise an agreed list of issues. As part of the above exercise, parties asked the Tribunal to give directions on whether, in its opinion, the scope of the EAT’s remit allowed it to disturb certain findings made by the earlier Tribunal. The findings related to the following matters; The claimant’s age at retirement had she been able to return to work. The claimant’s position on the respondent’s pay scale (the spinal point) had she been able to return to work Loss of any external earnings had the claimant been able to return to work. Bank and bankruptcy related costs The claimant’s entitlement to a sabbatical had she been able to return to work.

[16]From its reading of the EAT’s Order and judgment, the Tribunal understood that it had to determine what the claimant should be awarded having regard to the losses that flowed from the respondent’s failure to comply with its obligation to make reasonable adjustments and not to discriminate against the claimant including victimisation. The Tribunal recognises that this is about causation and whether and to what extent the respondent’s unlawful acts occasioned the claimant’s economic losses. To comply with the terms of the remit, the Tribunal must ask itself what would have transpired had the respondent complied with their legal duties. The findings of the previous Tribunal identified by the parties above are closely linked to this question. They are counterfactuals. In all the circumstances, the Tribunal was not persuaded that it was prevented from making its own findings on the above matters if it was to fully comply with the remit from the EAT.

[17]Before this Tribunal, the claimant was represented by Mr S Gorton KC and Ms K Dingwall, Instructing Solicitor. The respondent was represented by Mr D Reade KC and Mr R Turnbull, Instructing Solicitor on 24 to 26 July and by Mr D Reade KC and Ms M McGrady, Instructing Solicitor on 27 July 2023. The Tribunal enquired about any reasonable adjustments it might make to facilitate participation in the proceedings. Apart from the Tribunal providing regular breaks and breaks when requested, no further reasonable adjustments were identified by the parties.

[18]The Tribunal was provided with a Joint Bundle consisting of four volumes to which additional documents (1989 to 2042) were added by the claimant at the start of the hearing. The Tribunal was also provided with a Schedule of Loss and counter Schedule. June Bell, the respondent’s former Head of Human Resources at the College of Science and Engineering was recalled to answer further questions from the claimant in cross examination. The Tribunal heard submissions from the parties and was provided with position statements and a written summary of each parties’ submissions. The claimant was allowed an opportunity to provide additional information in the form of vouching to support her claim for NHS, bank and bankruptcy costs. The Tribunal considered these along with the respondent’s submissions which were provided in response.

ISSUES

[19]The parties identified the following issues for consideration by the Tribunal; Injury to Feelings/Solatium(i) What is the appropriate award in respect of the combined claim for Injury to Feelings and solatium (there is an issue between the parties as to whether that should include a claim for loss of congenial employment and reflect aggravated damages)? Economic loss

(ii) The parties are in agreement that the Tribunal is determining economic loss on the basis of what the claimant’s earnings would have been had the unlawful acts which the Tribunal had previously found had not occurred. The claimant says that the Tribunal can determine losses on the basis that losses are certain. The respondent’s position is that the Tribunal can only determine the chances the events would have occurred absent the unlawful acts.

(iii) For the avoidance of doubt, the respondent accepts on the evidence before the Tribunal that the claimant has been and presently remains unfit/unable to work due to (i) her mental impairment and (ii) the loss of her lawful right to work and live in the UK since the expiration of her work permit on 12 April 2012. Was the claimant’s inability to work and to work lawfully since 12 April 2012 caused or materially contributed to by the respondent’s failures in respect of disability and victimisation discrimination as found by the Tribunal?

(iv) When would the claimant most likely to have worked to i.e., what is her likely retirement age?

(v) More granular loss issues based on the claimant’s career path:

a. Was the claimant fit to return to work in 2011 and if so when?

b. Would the claimant have returned to work in 2011 or some time shortly thereafter with the respondent had the respondent acted lawfully as found by the Tribunal?

c. If yes:

d. How long would the claimant have remained in employment with the respondent and specifically would the claimant have continued working to 75?

e. What progression up the pay spine would the claimant have made? i. Would the claimant have been promoted and/or had additional responsibilities? ii. Would the claimant have had the benefit of a sabbatical and if so, from when? iii. What would have been the claimant’s external earnings per annum?

f. If no, what would have happened – see questions under para 7 below

(vi) Had the respondent made the reasonable adjustments (under s20) and avoided the dismissal and took steps to avoid the dismissal (under s.15) which the Tribunal found it ought to have made and/or taken, would the claimant’s immigration status have been resolved so that she continued to have the right to work and remain in the UK?

(vii) If the claimant would not have returned to work with the respondent, or not remained at work with the respondent some time, thereafter, would the claimant have found employment or earning opportunities elsewhere: i. If so, when? b. How long would the claimant have remained in employment and working and specifically would she have continued working to 75 or some lesser age? c. At what rate of pay and benefits? d. What would have been the claimant’s external earnings per annum?

(viii) Should any discount be made on the whole career loss approach for the vicissitudes of life, including any possibility of returning to some form of future employment? Other losses Bank Costs

(ix) Did the respondent’s unlawful actions cause or make a material contribution to the claimant incurring bank charges

(x) If so, what is the extent of that loss or claim? NHS Medical Treatment

(xi) Did the respondent’s unlawful actions cause or make a material contribution to the claimant losing her entitlement to free medical treatment under the NHS?

(xii) If so, what is the extent of that loss or claim? Bankruptcy Damages

(xiii) Did the respondent’s unlawful actions cause or make a material contribution to the claimant’s bankruptcy and consequent costs?

(xiv) If so, what is the extent of that loss or claim? Pension loss

(xv) Is the claimant’s methodology for calculation of pension loss correct? Contribution (xvi) Is any such argument legally permissible for remedy under the Equality Act 2010? (xvii) What is the alleged conduct that amounts to contribution? (xviii) Should a reduction be made in the compensatory award for unfair dismissal to reflect any contribution the claimant has made to her own loss and if so why and in what amount? (xix) Should a reduction be made in the compensatory award for discrimination to reflect any contribution the claimant has made to her own loss and if so why and in what amount? ACAS Enhancement (xx) What uplift should be made for respondent's failure to follow the ACAS Code of Practice? Interest (xxi) Is the claimant’s methodology for calculation of interest for injury to feelings and loss of earnings correct? Taxation (xxii) What is the claimant’s total net loss? (xxiii) Should the net losses or any elements be grossed up to reflect the incidence of tax on the tribunal award? (xxiv) Is the claimant’s methodology for calculation of grossing up correct?

[20]The parties asked the Tribunal to make findings based on which they can calculate and agree figures for the Tribunal to affirm. If agreement does not prove possible, the Tribunal will be asked to rule on any sums to be awarded.

LEGAL PRINCIPLES

[21]Section 124(2)(b) of the Equality Act 2010 (“EA”) provides that where a Tribunal finds that there has been an unlawful act of discrimination it may order the respondent to pay compensation to the claimant. Section 124(6) of EA provides that the amount of compensation which may be awarded corresponds to the amount which could be awarded by the Sheriff Court under Section 119 of EA. The claimant must show causation – that her losses would not have occurred but for the act or omission of the respondent. It is a well-established principle however that if a number of factors contributed to the loss, it is sufficient that the contribution which the factor attributable to the respondent’s fault – in this case their acts of discrimination - made to the loss was material (Simmons v British Steel

2004 UKHL 20

[22]When determining any award of compensation, it is accepted that the Tribunal should seek to put the claimant in the position they would have been in had the unlawful conduct of the respondent not occurred (Ministry of Defence v Cannock

1994 IRLR 509

). This will almost always involve the Tribunal having to consider a hypothetical – what would have happened had there not been the act of discrimination? The above exercise must however involve consideration of what the respondent would have done in the circumstances of the case as opposed to a hypothetical reasonable employer or the Tribunal (Abbey National plc v Formosan

1999 IRLR 222

, EAT). In the case of Vento v Chief Constable of West Yorkshire Police (No. 2)

2003 ICR 318

, CA, the Tribunal had to consider the issue of potential full career loss. The Court of Appeal confirmed that this involves the Tribunal having to assess, based on the available evidence including any statistical evidence, the probability of the claimant remaining in the employment of the respondent on a long-term basis.

[23]Where, on the evidence, the Tribunal is satisfied that there is some prospect that a non-discriminatory course of events would have led to the same outcome – for example in this case that the claimant would still have been dismissed in 2012 and/or lost her visa status – that possibility must be factored into the measure of loss (Abbey National plc and anor v Chagger

2010 ICR 397

, CA). The Tribunal can therefore apply a Polkey approach to assessing future economic loss by reflecting the percentage chance of the same situation – in this case dismissal and loss of a work permit - having occurred in any event. There is also the “sliding scale” approach to assessing loss (Dr E Michalak v The Mid Yorkshire Hospitals NHS Trust ET 1810815/08). This approach involves the Tribunal making an award that reflects how the passage of time may gradually increase the chance, for example in this case, of the claimant being dismissed on non-discriminatory grounds.

[24]In the case of Wardle v Credit Agricole

2011 ICR 1290

, guidance is provided as to how some consideration should be given to applying an overall discount to any award for a whole career loss to reflect the uncertainties and vicissitudes of life that could result in the claimant giving up work.

[25]In terms of Section 123 of the Employment Rights Act 1996, compensation for economic loss shall be such amount as the Tribunal considers just and equitable in all the circumstances. When assessing economic loss, the Tribunal must have regard to the loss sustained by the claimant in consequence of the dismissal so far as that loss is attributable to action taken by the respondent. As above, the Tribunal may also apply the principles in the case of Polkey v AE Dayton Services Ltd

1988 ICR 142

, HL when considering whether the losses should be subject to a percentage reduction to reflect the prospects of the claimant having been fairly dismissed in any event. Where the reason for dismissal was found to be a potentially fair reason, upper limits of a year’s salary or the statutory cap whichever is the lower, will apply to an award of compensation.

[26]In terms of Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR (C) A), the Tribunal has the power to increase the amount of compensation where the respondent has unreasonably failed to comply with a relevant and applicable ACAS Code of Practice. The Tribunal may increase any award by no more than 25% “if it considers it just and equitable in all the circumstances”. The overall amount of the award may be a factor that the Tribunal will take into account when deciding on the size of any uplift.

[27]Section 119(4) of EA provides that an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis). It is, of course, necessary for the Tribunal to be satisfied that the injury to feelings was caused by the act of discrimination. It should be proportionate, relying on guidance from, for example, the bands of compensation applicable at the date of injury in the case of Vento v Chief Constable of West Yorkshire Police (No. 2)

2003 ICR 318

, CA. General principles applicable to awards for injury to feelings are summarised in the case of Prison Service and ors v Johnson

1997 ICR 275

, EAT. They include the principle that awards for injury to feelings are designed to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received and not to punish the guilty party; awards should be broadly similar to the range of awards in personal injury cases; the Tribunal should focus on the effect of the unlawful discrimination on the claimant as opposed to the gravity of the respondent’s discriminatory acts and that Tribunals should have regard to the need for public respect for the level of awards made.

[28]An award for injury to feelings should not be reduced to reflect the likelihood of a hypothetical future event such as a non-discriminatory dismissal (O’Donoghue v Redcar and Cleveland Borough Council

2001 IRLR 615

, CA).

[29]In the case of Way and anor v Crouch

2005 ICR 1362

, the EAT, referring to the Law Reform (Contributory Negligence) Act 1945, held that compensation for an act of discrimination may be reduced to reflect contributory fault. The EAT in the case of Fife Council v McPhee EATS 750/00 observed that while a finding of contributory fault in relation to a successful claim for unfair dismissal would not necessarily bear on a quite separate claim for discrimination, where the two claims are inextricably bound up, logic dictates that a contribution in relation to unfair dismissal should also apply in respect of the compensation for discrimination. DISCUSSION & DELIBERATIONS ECONOMIC LOSS

[30]The Tribunal began by considering whether the claimant should be awarded any further economic loss caused to the claimant by the respondent’s acts of disability discrimination and victimisation. As referred to in the list of issues, the parties are in agreement that the Tribunal is determining economic loss on the basis of what the claimant’s earnings would have been had the respondent’s unlawful acts as found by the Tribunal not occurred. The onus is on the claimant to prove her loss. It is not in dispute that from the evidence before the Tribunal, the claimant has been and presently remains unfit/unable to work due to(i) her mental impairment and

(ii) the loss of her lawful right to work and live in the UK since the expiration of her work permit on 12 April 2012.

[31]The Tribunal considered whether the claimant’s inability to work and to work lawfully has been caused or materially contributed to by the respondent’s unlawful conduct of disability discrimination, failure to make reasonable adjustments and victimisation of the claimant.

[32]In terms of when the claimant might have returned to work had she not been discriminated against by the respondent, the Tribunal had regard to the findings by the earlier Tribunal. The Tribunal found in the first liability judgment (paragraph 54) that in January 2011 the claimant wanted to return to work and saw a gradual reintegration via another school to be a way back to the workplace after being absent for a year with work related stress and depression. The Tribunal found that the respondent did not exclude the possibility of such a move and their Director of HR, Sheila Gupta agreed that there would have been no work permit issues had the claimant’s suggestion that she move school been implemented on a temporary basis (paragraph 56). Having regard to the medical evidence before the Tribunal, Dr Kennedy, the claimant’s treating psychiatrist, was of the opinion that given the likelihood of a full recovery she would have expected the claimant to become fit enough to return to work at any time during her time off (826). Dr Jacqueline Scott, a psychiatrist jointly instructed by the parties, was less certain about the claimant’s prospects of being fit to return to work in early 2011. Dr Scott did not however dismiss as a possibility the claimant’s return to work, perhaps by way of a phased return, and subject to the claimant’s ability to manage the demands of her work. (828). The Tribunal in the remedy judgment (paragraph 10) preferred the evidence of Dr Kennedy as regards the claimant becoming fit to return to work at some point during or before January 2011.

[33]The claimant did not return to work. Dr Kennedy (at 817/826) provided evidence that the factors which perpetuated the claimant’s illness during her time off were work related and there were no other external factors contributing to low mood. The Tribunal accepted this evidence in the remedy judgment (paragraph 9). The Tribunal also accepted Dr Kennedy’s explanation that the claimant “is unusual in that her work is her life” and there were few stressors present in her life aside from work. From February 2011, as found by the Tribunal in the first liability judgment (paragraph 59), the claimant became the subject of an “injunction” preventing other employees and colleagues from contacting her apart from through solicitors. The claimant was in effect “sent to Coventry” (paragraph 61) from early 2011. This was found to be an act of victimisation by the Tribunal in the first liability judgment. During December 2011, decisions involving the removal of the claimant’s laboratory and supervision of a PhD student were not communicated to her. The “injunction” remained in place until April 2012 when the claimant’s work visa expired and she was dismissed by the respondent, an act which was found by the Tribunal in the second liability judgment to be discrimination arising from disability.

[34]In Dr Kennedy’s opinion, the impact of the respondent’s conduct in late 2011 and 2012 on the claimant’s health was considerable (817/727). It had caused significant health issues, placing the claimant under considerable stress. Dr Kennedy described the impact of the respondent’s conduct as compounding “feelings of helplessness and complete uncertainty.” Similarly, Dr Scott was of the opinion (820) that the actions by the respondent in her dismissal, removal of supervisory duties and the expiry of her work permit would have been a significant stress and on balance had a negative and detrimental impact on the claimant’s health. As found in the Tribunal’s remedy judgment (paragraph 66) the claimant continues to suffer from significant psychiatric symptoms. There is no evidence before this Tribunal to persuade it that since her dismissal the claimant’s ill health has been materially affected by anything other than the respondent’s conduct towards her of unlawful disability discrimination and victimisation. In all the circumstances, this Tribunal agrees with the finding in the remedy judgment (paragraph 67) that the psychiatric evidence was sufficient to support the conclusion that the respondent’s unlawful actions made a material contribution to the claimant’s symptoms from 2012 onwards.

[35]The earlier Tribunal found in the second liability judgment that there were adjustments that the respondent could reasonably have taken to avoid the substantial disadvantage to the claimant. The substantial disadvantage was identified (at paragraph 37 of the second liability judgment) as not being able to return to work. The earlier Tribunal had found in the first liability judgment (at paragraph 197) that the claimant was a disabled person from January 2010 and (at paragraph 198) that the respondent knew this to be the case by 14 April 2010. There is also a finding (at paragraph 198) that the respondent did not follow its own procedure in its disability policy to establish if the claimant was disabled and that if they did not, in fact, know that the claimant was disabled they could reasonably have been expected to have known. The Tribunal in the second liability judgment (paragraph 41) identified reasonable adjustments with which the respondent was obliged to comply as having(i) to apply its own procedures and policies in respect of sickness absence and disability;

(ii) to apply its grievance procedure and dignity and respect policy and (iv) to apply all of its relevant procedures in connection with the claimant’s dismissal.

[36]The respondent had a number of policies and procedures in respect of sickness absence and disability including their Absence Management Policy (RB891), Disability Policy (under review version 2004) (RB936) and Guidance on Supporting Disabled Staff (RB931). There has been no finding that any of the above procedures and policies were given any meaningful consideration by the respondent during the claimant’s absence from work or in an attempt to reintegrate her to the workplace. The Tribunal concluded in the first liability judgment (at paragraph 106) that Sheila Gupta was of the mistaken view that the claimant was only interested in a settlement with the respondent to allow her to leave their employment. The earlier Tribunal concluded that there was a view among the respondent that the claimant was never going to return to their employment due to her health which was reflected in the material part played by Shiela Gupta in terminating her employment without consideration of other options under the respondent’s Disability Policy (paragraphs 106 & 107 of the first liability judgment).

[37]The Tribunal did not accept the respondent’s submissions that none of their policies and procedures could be described as “directly linked” to restoring the claimant to remunerative employment. The Tribunal was also not persuaded by the respondent’s submission that the earlier Tribunal’s conclusion (at paragraph 39 of the second liability judgment) that it was not reasonable to expect or require the respondent to take any further steps to reintegrate the claimant into work must inevitably lead this Tribunal to conclude that there was no prospect of the claimant’s reintegration into the workplace. As referred to above, there has already been a finding by the earlier Tribunal that applying the respondent’s policies and procedures as reasonable adjustments could have avoided the substantial disadvantage to the claimant of being unable to return to work. The Disability Policy (RB936) for example, provides that “Where practicable, the University will attempt to retain staff who become disabled and to ensure suitable employment for them. Senior staff should deal as sensitively as possible with these situations and seek help where required.” (RB926).

[38]The Absence Management Policy (at RB903) provides that “long term absence” from work will normally be considered to be an absence which will last for more than four weeks. Long term absence management includes a referral to Occupational Health following indications that sickness will be prolonged. The claimant’s period of illness began in January 2010. There was no persuasive evidence that the respondent followed its absence management policy in response to the claimant’s absence. The earlier Tribunal found that a referral to Occupational Health was suggested in July 2011 when Dr Waldron responded to the claimant’s proposed “way forward” (at paragraph 68 of the first liability judgment). There is a finding in the first liability judgment (at paragraph 66) that by the time of this suggestion, there was a “general hostile attitude of certain elements of the School of Engineering to the claimant”. The suggestions made by the respondent to the claimant regarding Occupational Health were made against this background. While the referral to Occupational Health was found by the earlier Tribunal (at paragraph 25 of the second liability judgment) to be a genuine attempt to “reintegrate” the claimant to the respondent’s employment, it was not an attempt made in accordance with the respondent’s policies and procedures for employees such as the claimant on long term absence and which the Tribunal was satisfied would have improved the claimant’s prospects of a return to work.

[39]The respondent’s Guidance on Supporting Disabled Staff (RB946 to 949) also gives examples such as alterations to working environment and changes to working patterns. This Tribunal was persuaded that taking such steps could have significantly increased the prospect of the claimant returning to work. Similarly, had the respondent applied their Grievance Procedure (RB1010) and Policy (RB1016) and Dignity and Respect Policy (RB940) as opposed to assuming, without making direct contact with her, that the claimant did not want to progress her grievance while unwell, this Tribunal was persuaded that the prospects of avoiding relations between the parties becoming so mistrustful that they resulted in an “impasse” that was insurmountable were good and as found by the earlier Tribunal could, had they been applied, have avoided the substantial disadvantage of the claimant being unable to return to work.

[40]In addition to complying with their own policies and procedures in relation to the claimant as a disabled employee who was absent from work, the earlier Tribunal also found in the second liability judgment (paragraph 41) that it was reasonable to expect and require the respondent to comply with their duty to make reasonable adjustments (iii) to take steps that it reasonably could to try to ensure the claimant’s immigration status would not be compromised by her absences caused by her disability and if necessary, take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working status and (v) to engage with the claimant in respect of her work permit status, informing her of all options with a view to trying to ensure her work status was not lost at the expiration of her 5 year work permit”. The claimant was dismissed because the respondent believed that she could no longer legally continue to work in the UK on the expiry of her work visa on 12 April 2012.

[41]Sheila Gupta gave evidence to the Tribunal (paragraph 71 of the first liability judgment) that there were possible options to extend the claimant’s stay in the UK which were not explored by the respondent and that there were possible steps which she did not take, and which could have enabled the claimant to stay in the UK. On reflection, Sheila Gupta accepted (at paragraph 73 of the first liability judgment) that she should have written to the claimant about other routes whereby she could retain her employment rather than simply authorising the letter of 11 January 2012 giving the claimant notice of the termination of her employment on 12 April 2012 when her work permit was due to expire (paragraph 70 of the first liability judgment).

[42]In her evidence before this Tribunal, June Bell accepted that there were a number of opportunities – missed by the respondent - to signpost the claimant to the various routes to retain her visa status. The claimant was employed on what June Bell described as an “open-ended contract” (1749) with the respondent, “subject to visa restrictions”. The respondent was involved in applying for the claimant’s work permit when she was first appointed (524- 540) but it was not in dispute that the claimant was obliged to take certain steps herself to obtain the right to remain working in the UK. There was no evidence that the claimant had taken any such steps before April 2012. In her witness statement however (RB1749), June Bell states that “under normal circumstances, we would have transitioned (the claimant) to a Tier 2 Certificate of Sponsorship and she could have applied for either an extension of her stay or indefinite leave to remain”. In all the circumstances, this Tribunal was persuaded that the claimant would have had good prospects of being granted an extension or right to remain had the respondent complied with the reasonable adjustments identified by the Tribunal relating to the extension of her right to work in the UK.

[43]As referred to above, the Tribunal was satisfied that had the respondent complied with their obligation to make reasonable adjustments by applying their policies and procedures to the claimant’s situation, the prospect of the claimant returning to remunerative work with them by April 2012 would have been significantly improved. Had this not been possible however, the Tribunal was satisfied that her continued absence from work on sick leave would not have precluded the claimant from successfully applying for the right to continue working in the UK. The fact that the claimant had exhausted her sick pay at the time of applying to continue working in the UK could, according to Sheila Gupta (1508), be remedied by “a letter of support” from the respondent; the return to work through another department was recognised by the respondent as a temporary situation and questioning whether the claimant had taken secondary employment while on unpaid leave was accepted to be an “adverse and negative conclusion” for her to have made without contacting the claimant to confirm the position.

[44]The respondent’s witness Don Glass gave evidence (page 1506 of Volume 3) that he had not encountered anybody who had not succeeded in having their work visa extended. In all the circumstances, this Tribunal is satisfied that had the respondent complied with their obligation to take all reasonable steps to ensure that the claimant would not be at risk of losing her lawful working status and engaged with the claimant in respect of her work permit status by informing her of all options to ensure that her work status was not lost, there was a good chance that she would have been able to extend her work visa and continue working in the UK, avoiding the loss of her employment with the respondent on the expiry of her work permit. While it is not being suggested that the obligation was entirely on the respondent to apply for the extension, had the respondent complied with its obligations under the Equality Act 2010, the Tribunal was persuaded that there was a good chance that the claimant’s right to work in the UK would have been extended.

[45]The respondent submitted that applying the principles in Polkey, the Tribunal should find that the claimant would have been fairly dismissed in any event due to the “impasse” that existed between the parties. The” impasse” was something for which the respondent blamed the claimant. At the remedy hearing before this Tribunal, the respondent accepted that the “impasse” was not insurmountable. The EAT observed (at paragraph 52) that the “impasse” did not sit comfortably with the Tribunal’s conclusion that the respondent had failed to engage with the claimant about her medical condition or whether she could return to work. The EAT also concluded (at paragraph 53) that the Tribunal’s conclusion in the first remedy judgment that there would have been a fair dismissal in any event in December 2012 cannot stand.

[46]The Tribunal was satisfied, that in all the circumstances, had the respondent complied with their obligation to make reasonable adjustments which included following their policies and procedures and taking steps to engage with the claimant about an extension to her work permit, there was a good chance that the parties would have been able to overcome the “impasse.” The Tribunal was not persuaded by the respondent’s submissions that the earlier Tribunal’s award of £2,000 for injury to feelings was a factor to which significant weight should be attached when assessing the potential effectiveness of the adjustments. The “impasse” arose around the time that the claimant was subject to an “injunction” and the respondent failing to notify her of changes directly affecting her work such as the loss of her laboratory and her removal from supervising a PhD student. This Tribunal was satisfied that had the respondent applied its own policies and procedures there was a good chance that the “impasse” could have been resolved. The Tribunal considered that the “impasse” was inextricably linked to the treatment by the respondent of the claimant having isolated her from other employees, creating an atmosphere of mistrust and by failing to respond to her as a disabled person using their policies and procedures in respect of sickness absence and disability.

[47]The respondent submitted that the Tribunal should also have regard to the evidence of June Bell as regards concerns about how the claimant’s teaching and ability to attract grant funding might impact upon her future employment with the respondent. The Tribunal was not persuaded that in all the circumstances and from the evidence before it that the claimant was likely to have been dismissed in any event by the respondent on such grounds. There was evidence that the dismissal of professors is a rare occurrence and while the Tribunal could accept that the above concerns might adversely affect an academic’s career progression within the University, the Tribunal was not persuaded that in the case of the claimant they would have resulted in her being fairly dismissed.

[48]The Tribunal was not however persuaded that there was every chance that the claimant would have returned to remunerative work with the respondent had they not unlawfully discriminated against her. For example, there were no guarantees that the respondent would have been able to comply with the claimant’s suggestion that she return to work through another school or by applying some other alternative arrangement. The available medical evidence does not rule out altogether the possibility of the claimant struggling with the demands of work. The claimant may not have engaged with the respondent about the extension of her work permit and there is some possibility, albeit small, that her work permit would not have been extended. In all the circumstances, the Tribunal concluded that had the respondent not unlawfully discriminated against the claimant there was an 80% chance that she would have returned to remunerative work with the respondent in January 2011 and retained the right to work for the respondent from April 2012. UNFAIR DISMISSAL

[49]The Tribunal did not understand it to be in dispute that any additional economic loss awarded to the claimant by this Tribunal for unfair dismissal will be subsumed by the increased award under the EA. No further award has therefore been made for compensation due in respect of the respondent’s unfair dismissal of the claimant. LIKELY RETIREMENT AGE

[50]The claimant is 67 (date of birth 18 September 1956). She was employed by the respondent from 1 May 2007 as the Professor and Chair of Chemical Process Engineering. The Tribunal concluded that, in all the circumstances including assessment of demographic material (pages 834 to 837 of Volume 2), had the claimant not been discriminated against by the respondent, there was every chance that she would have continued working to the normal retirement age of 66 and that this would have been with the respondent given the reputation of the respondent as an educational institution and the claimant’s position of Professor and Chair. If the claimant had not continued working with the respondent, the Tribunal was satisfied that she would have been working for an equivalent educational institution on equivalent terms and conditions until retirement. This Tribunal considered that the claimant would have continued working to 66 given that work was her life and on a practical level, to accrue a larger pension before retiring. The Tribunal was not however persuaded from all the evidence before it that the claimant would have continued working beyond the age of 70. There are the normal vicissitudes of life to consider and while the Tribunal, based on the finding that her work was her life, considered the claimant to be more than likely a member of the relatively small number of professors (13.4% according to June Bell) who work beyond the age of 65, there was a 60% chance that she would have continued working from the age of 66 to the age of 70, but no later. PROMOTION & PAY SPINE PROGRESSION

[51]The Tribunal was not persuaded from an assessment of the evidence before it that the claimant would have been promoted or acquire additional responsibilities had she not been discriminated against by the respondent. While the claimant had applied for promoted posts with the respondent – Vice President in September 2008 and Dean in May 2009 - her applications were unsuccessful. Similarly, this Tribunal was not persuaded from an assessment of the available evidence that the claimant’s pay would have progressed beyond spinal point 61 on the respondent’s pay scale. There was no evidence of a contractual right to such an increase. The earlier Tribunal in the first remedy judgment (at paragraph 22) was not persuaded by the claimant’s evidence that she would have automatically progressed from point 61 of the salary scale. This Tribunal was not persuaded that the above finding should be disturbed. SABBATICAL/EXTERNAL WORK

[52]Similarly, there was no evidence of a contractual right to a sabbatical and no persuasive evidence before the Tribunal that the claimant would have been offered one had she remained in the respondent’s employment. There was evidence of academics having the right to request paid sabbatical leave (RB697 to 698) but as found in the first remedy judgment (at paragraph 31), no guarantee that such a request would be granted. The Tribunal in the first remedy judgement was not persuaded that any losses under this heading had been established. This Tribunal was not persuaded that in all the circumstances there was evidence that would entitle it to disturb the above finding.

[53]The Tribunal was not persuaded by the claimant’s submission that it should disregard evidence previously given by June Bell to the Tribunal because she was employed on a consultancy basis and not, as presented by the respondent, a fully retired employee. The earlier Tribunal accepted June Bell’s evidence about whether the claimant would have been offered a sabbatical given her position as the former Head of HR and her experience with the respondent from January 2007 to July 2019. The Tribunal was not persuaded that it should disregard this evidence. Similarly, this Tribunal was not persuaded that there was evidence to disturb the earlier Tribunal’s finding that the claimant has not lost earnings from external work that flowed from the respondent having discriminated against her. As found in the first remedy judgment (at paragraph 33), the claimant had not engaged in any such work since November 2009, prior to her absence on sick leave in January 2010. BANK / NHS / BANKRUPTCY COSTS

[54]The Tribunal was satisfied that the respondent’s unlawful actions of discriminating against the claimant materially contributed to her loss of the right to medical treatment under the NHS and that had the claimant returned to remunerative employment with the respondent in 2011 medical costs would not have been incurred. A monetary sum equivalent to 8 months’ NHS benefits plus interest was awarded to the claimant in the first remedy judgment. These costs are recoverable from the respondent as losses incurred by their acts of discrimination. It was not in dispute before this Tribunal that had the claimant remained working in the UK, the health care that she has received since 2011 would have been provided without charge. The claimant has provided the Tribunal with invoices totalling £28,945 (£26,316 (631) plus £1,205 (632) plus £190 (633)). It is not in dispute that these costs have been incurred by the claimant.

[55]The claimant has sought leave of the Tribunal to make representations to the Tribunal on the issue of whether she should also be awarded the cost of a hip replacement operation on 11 January 2019. To date the claimant has not been charged for this operation. In all the circumstances, the Tribunal decided that it is in accordance with the overriding objective to allow the claimant an opportunity to give evidence and/or make submissions on this issue. Accordingly, the total sum to be paid by the respondent to the claimant for NHS costs shall be continued for further consideration by the Tribunal following any further representations by the parties. Similarly, in relation to any sum to be paid by the respondent to the claimant for bank and/or bankruptcy costs, consideration has been continued by the Tribunal to allow the claimant to give evidence/and or make submissions on the above issues and for the respondent to make representations in response. PENSION LOSS

[56]As referred to above, in all the circumstances, this Tribunal is satisfied that the claimant would have remained in employment with the respondent or in equivalent employment until the age of 66 and that there is a 60% chance that the claimant would have worked beyond the age of 66 to the age of 70. The Tribunal does not understand it to be in dispute that this employment would have been pensionable. The brevity of this section of the judgment in no way seeks to minimise the significance of this part of the award to both parties. The Tribunal understands however that based on the Tribunal’s findings in relation to whether, and if so when, the claimant would have returned to remunerative employment had she not been discriminated against by the respondent and the date of her likely retirement that the parties will calculate pension loss for the purposes of agreement and/or further consideration by the Tribunal. INJURY TO FEELINGS

[57]The Tribunal is required to reconsider the amount of any injury to feeling award due to the claimant in respect of the respondent’s discrimination against her arising from disability. To date the claimant has been awarded compensation for injury to feelings of(i) £2,000 plus interest for failure to make reasonable adjustments;

(ii) £2,800 plus interest for victimisation and

(iii) £25,000 plus interest for discrimination arising from disability. As referred to above, this Tribunal is required to reconsider the award of £25,000 for injury to feelings due to the claimant in respect of the respondent’s discrimination arising from disability.

[58]Reconsideration of the sum to be awarded for injury to feelings was referred to this Tribunal because the earlier Tribunal took into account the effect on the claimant of a fair dismissal. The issue of whether the award should be increased to include a claim for loss of congenial employment and/or reflect aggravated damages was not identified by the EAT as being subject to reconsideration by this Tribunal. The Tribunal does not know by how much the sum awarded was discounted to take account of a fair dismissal and has therefore considered the relevant findings and evidence available to assess an award for injury to feelings.

[59]This Tribunal had regard to the effect on the claimant of the unlawful treatment that she received from the respondent. The earlier Tribunal found that the claimant’s dismissal was an act of discrimination arising from disability (paragraph 50 of the second liability judgment). The earlier Tribunal accepted that for the claimant, “her work is her life” and in the first liability judgment (at paragraph 67), refers to the “devastating effect” on the claimant’s health of the breakdown of her relationship with the respondent.

[60]The respondent submitted that the Tribunal should treat the claimant’s case as one of exacerbation. While the claimant was already absent from work with work related stress and depression before she was subjected to acts of discrimination by the respondent, the Tribunal was not persuaded from the available evidence that when assessing compensation for injury to feelings significant weight should be attached to the claimant having previously suffered from a period of stress and depression. The earlier Tribunal accepted Dr Kennedy’s evidence that at the time of the claimant’s absence, “given the lack of past psychiatric history” she would have deemed the claimant’s prognosis “at that time to be good with a full recovery” subject to a supportive environment and stressors being addressed (paragraph 8 of the remedy judgment). There was also evidence from Dr Kennedy that the impact of the respondent’s conduct in late 2011 and 2012 on the claimant’s health was considerable (817/727). It caused the claimant significant health issues, placing her under considerable stress. In the remedy judgment (at paragraph 66), the earlier Tribunal refers to the claimant’s ”significant psychiatric symptoms” and that they were exacerbated shortly before and after the claimant’s dismissal when she required periods of hospitalisation.

[61]The claimant has been left feeling mistrustful and isolated by her dismissal. She has lost her career and status in the academic community. She has become isolated from friends and family. As referred to above, she has required periods of hospitalisation (paragraph 66 of the remedy judgment). Dr Kennedy described the impact of the respondent’s conduct as compounding “feelings of helplessness and complete uncertainty.” Similarly, Dr Scott was of the opinion (820) that the actions by the respondent in her dismissal, removal of supervisory duties and the expiry of her work permit would have been a significant stress and on balance had a negative and detrimental impact on the claimant’s health. As found in the Tribunal’s remedy judgment (paragraph 66) the claimant continues to suffer from significant psychiatric symptoms. The earlier Tribunal observed that the cause of the claimant’s psychiatric symptoms from April 2012 was “the fact of and manner of the claimant’s dismissal in 2012” (paragraph 72 of the remedy judgement). The claimant has been unable to pursue her academic career. The conduct of the respondent by dismissing the claimant has caused her to feel considerable anger and upset. While there is some possibility of the claimant beginning the process of recovery on conclusion of the Tribunal proceedings (paragraph 70 of the remedy judgment), this is likely to be conditional upon the resolution of her immigration status.

[62]Having regard to the guidance in Vento, the Tribunal was satisfied that the claimant’s injury to feelings justifies an award that exceeds the maximum of the upper band in Vento applicable at the time of her dismissal. It is a case in which the respondent’s discriminatory conduct has been found to have caused the claimant considerable anger, distress and upset. It has seriously affected her working life and well-being. The Tribunal has therefore decided that in all the circumstances and having considered the guidance in Vento and subsequent uplifts to the date of the claimant’s dismissal, that the sum of £50,000 should be awarded to the claimant for injury to feelings. Interest has been calculated in the sum of £46,119.68 for the period from 12 April 2012 to 20 October 2023 (4,208 days at a daily rate of interest of £10.96).

[63]The respondent submitted that the Tribunal should make a reduction to the injury to feelings award on the basis of contribution. The Tribunal was not satisfied that this was appropriate in all the circumstances. The Tribunal has not made any findings of contribution by the claimant to her losses from the discriminatory acts of the respondent. The earlier Tribunal did not make any findings of contribution in relation to the claimant’s unfair dismissal. In all the circumstances, the Tribunal is not persuaded by the respondent’s submission that it would be appropriate to reduce any of the awards made to the claimant under the Equality Act 2010 to reflect contribution on her part. ACAS ENHANCEMENT, INTEREST & TAXATION

[64]As agreed with the parties, any ACAS enhancement on the above awards will be determined by the Tribunal once the size of any award is known and it is possible to take into account the overall value of the award when applying an uplift. Similarly, the Tribunal considered that determination of any outstanding issues concerning interest on past economic loss and taxation was appropriate once the amount of awards has been agreed or subsequently calculated by the Tribunal. The Tribunal understood this to be the approach sought by the parties. There is also the issue of any deduction for accelerated receipt of the award for future economic loss. This is an issue that will, if not agreed between the parties, be determined by the Tribunal once the amount to be awarded has been agreed or calculated by the Tribunal.

LEGAL PRINCIPLES

[1]In terms of a remedy judgment dated 20 October 2023, the Tribunal continued consideration of the sums to be awarded to the claimant as compensation for bank, NHS and bankruptcy costs. This was to allow the claimant an opportunity to provide further evidence and/or submissions on the above costs before the Tribunal reached its decision on what, if any, awards should be made. With their agreement, the Tribunal considered the additional submissions and documents provided by parties in chambers on 25 March 2024. A judgment was issued on 10 April 2024 awarding the claimant £6,741.60 for bank costs; £23,156 for NHS charges and £53,445.11 for bankruptcy costs. The sum awarded for bankruptcy costs is 80% of the claimant’s total costs of £66,806.39. This is to reflect the Tribunal’s finding that there was an 80% chance that had the respondent not discriminated against the claimant, she would have returned to remunerative employment and the costs would not have been incurred.

[2]The claimant made an application for reconsideration of the judgment dated 10 April 2024 in respect of the award for bankruptcy costs. The application was made on the basis of new evidence having come to light since the date of the hearing in chambers on 25 March 2024. The claimant seeks to rely on a VAT invoice dated 20 April 2012 issued by Quartermile Estates Limited who are factors of a residential property in Edinburgh jointly owned by the parties. The invoice is for legal fees to 20 April 2012 totalling £28,407.86 It is the claimant’s position that the above document shows that she incurred £28,406,86 of legal expenses in relation to the property (and, in consequence, the bankruptcy). Referring to the authorities of Ladd v Marshall

1954 1 WLR 1489

and Wileman v Minilec Engineering Ltd

1988 IRLR 144

, it is the claimant’s position that the Tribunal should permit her to rely on the new evidence in support of an application for reconsideration. The claimant submits that she only became aware of the document’s existence on 15 April 2024 when it was obtained from the Insolvency Practitioner’s Association, earlier attempts to obtain a more detailed breakdown of legal expenses having been unsuccessful. The claimant also submits that she should be permitted to rely on the above document given the timing of the respondent’s disclosure of documents on 5 February 2024 which described £28,407.86 as a” tenant demand” as opposed to legal expenses. It is the claimant’s position that she could not, with proper diligence, have reasonably obtained the document that she now seeks to rely on before the hearing in chambers on 25 March 2024.

[3]In supplementary submissions the claimant submits that, rather than arising from her bankruptcy, additional costs of £60,040.77 were “triggered or crystallised by the earlier event of termination of employment itself which resulted in bankruptcy”. In support of the above submission, the claimant relies on a Standard Security and Minute of Agreement which regulate the parties’ respective interests in the residential property. The property was purchased by both parties when the claimant first began working for the respondent. It is not in dispute that when the claimant’s employment with the respondent ended the respondent was entitled in terms of the Minute of Agreement to require the claimant to purchase its share in the property. The claimant submits that had she not been discriminated against by the respondent, this entitlement would not have crystallised and a breach of contract would not have occurred. The claimant referred to documents that were before the Tribunal at the remedy hearings in July 2023 and March 2024. The claimant submitted that she should be awarded costs described in the above documents as “factoring agent legal fees and interest.” This is on the basis that they flowed from her loss of income owing to unlawful discrimination and can therefore be distinguished from usual factoring charges and fees. The claimant also relies on a number of additional documents from a variety of creditors, all of whom have incurred legal expenses which the claimant attributes to the respondent’s unlawful discrimination.

[4]The application for reconsideration is opposed by the respondent. Referring to the authorities of Ministry of Justice v Burton

2016 ICR 1128

and Ebury Partners UK v Davis

2023 IRLR 486

, the respondent objects to reconsideration of the amount awarded for bankruptcy costs on the ground that there should be finality of proceedings. The respondent disputes that the claimant could not reasonably have obtained the information contained in the invoice dated 20 April 2012 before April 2024 and that in any event, the invoice still does not prove that legal fees of Quartermile Estates Ltd to April 2012 were incurred as a cost of her bankruptcy. The respondent submits that the invoice shows only that the costs were incurred in relation to the property, not why they were incurred and that they were incurred 5 years before the bankruptcy.

[5]With the agreement of the parties, the Tribunal considered the claimant’s application for reconsideration in chambers on 5 July 2024. The Tribunal had regard to the submissions made by the parties and the additional documents provided by the claimant.

[6]In terms of Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked. If it is revoked, the decision may be taken again.

[7]When reaching its decision dated 10 April 2024, the Tribunal had regard to the evidence before it at the remedy hearing in July 2023 and the further submissions and documents provided by the parties in advance of the continued remedy hearing on 25 March 2024. The Tribunal reminded itself that it had to determine what the claimant should be awarded having regard to the losses that flowed from the respondent’s failure to comply with its obligation to make reasonable adjustments and not to discriminate against the claimant including victimisation. The Tribunal reminded itself that this is about causation and whether and to what extent the respondent’s unlawful acts occasioned the claimant’s economic losses including bankruptcy costs. It was for the claimant to prove her loss.

[8]As referred to above, the Tribunal was persuaded that the claimant had established a loss of £66,806.39 in relation to bankruptcy costs, 80% of which were awarded in the sum of £53,445.11. The Tribunal’s decision was based on the evidence before it of costs incurred in the claimant’s bankruptcy. The claimant now seeks to rely on an invoice from Quartermile Estates Ltd dated 20 April 2012 to show that she incurred further costs of £28,406.86 as a consequence of her bankruptcy. The Tribunal was not persuaded that the claimant could not reasonably have obtained this document in advance of the continued remedy hearing on 25 March 2024. The claimant was allowed the opportunity to obtain additional documents to support her claim for bankruptcy costs after the original remedy hearing in July 2023. The claimant has been legally represented throughout the proceedings before this Tribunal. It was for the claimant to establish her loss. She was aware from 5 February 2024 of the respondent’s position regarding the total sum claimed and whether it was fully attributable to her bankruptcy.

[9]In any event, the Tribunal is not persuaded that the invoice the claimant now seeks to rely on shows that the legal expenses of Quartermile Estates Ltd to April 2012 were incurred as a consequence of her bankruptcy. The claimant was sequestrated in 2017. The legal costs that the claimant seeks to recover were incurred some considerable time before then. The Tribunal is not persuaded that legal expenses of Quartermile Estates Ltd to April 2012 were incurred as a consequence of the claimant’s bankruptcy in 2017 and not for some other reason such as the property in Edinburgh.

[10]The claimant also seeks to advance a separate argument that costs of £69,437.77 failing which £60,040.77 were incurred as a consequence of enforcement by the respondent of a Minute of Agreement regulating the parties’ joint ownership of the property in Edinburgh. This argument was not advanced at either of the previous remedy hearings before this Tribunal. It comes too late. The issue before the Tribunal is whether it should vary or revoke its earlier decision in relation to bankruptcy costs. The claimant’s new argument is concerned with costs that were incurred not from her bankruptcy but rather as a consequence of earlier events which resulted in her bankruptcy. At the remedy hearing in July 2023, the Tribunal considered the extent to which the respondent’s unlawful acts occasioned the claimant’s economic losses. Findings have been made in that respect. The respondent is entitled to finality in litigation. The Tribunal is satisfied that the claimant has been given a fair and proper opportunity to present her case, including the arguments that she now seeks to advance.

[11]In all the circumstances, the Tribunal is not persuaded that it is in the interests of justice to either vary or revoke the judgment dated 10 April 2024. The Tribunal, having considered the submissions and documents before it, has therefore affirmed its judgment dated 10 April 2024 awarding the claimant bankruptcy costs of £53,445.11 (£80% of £66,806.39). 4102702/2012

BACKGROUND

[12]It is understood that the respondent paid the claimant the sums awarded for bank costs, NHS charges and bankruptcy costs on 6 June 2024. Taking 17 July 2013 as the date on which the costs were first debited, interest on bank costs has been calculated to be £2,943.72 (1,989 days (based on a mid-point of 26 December 2018 to 6 June 2024) x £1.48 per day).Taking 14 June 2017 as the date on which the costs were first deducted from the claimant’s estate, interest on bankruptcy costs has been calculated to be £14,930.25 (1,275 days (based on a mid-point of 9 December 2020 to 6 June 2024) x £11.71 per day).

[13]Total interest awarded for past economic loss therefore totals £361,416.01 (£343,542.04 plus £2,943.72 plus £14,930.25). ACAS ENHANCEMENT

[14]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that where in applicable proceedings there is found to have been unreasonable failure on the part of the employer to comply with a relevant Code of Practice, the Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

[15]The claimant submits that this Tribunal is bound to apply an uplift of 25% based on the finding of the previous Tribunal in its judgments dated 1 June 2020 and 3 July 2020. The claimant submits that it is not an issue which was reopened or remitted by the EAT and this Tribunal has no power to vary it. The respondent referred to the passage in this Tribunal’s judgment dated 20 October 2023 (at paragraph 64) where it is recorded that parties had agreed to the Tribunal determining any ACAS enhancement once the size of any award was known. The respondent referred the Tribunal to the case of Jhuti v Royal Mail Group Ltd ET/2200982/2016 in which the Tribunal awarded an uplift of 0.5%.

[16]It remains the Tribunal’s position that before determining the level of any ACAS uplift, the Tribunal needs to know and take into account the size of any award and its overall value when applying an uplift.

[17]When the previous Tribunal awarded an uplift of 25%, the award was increased by around £10,450. The total award in this case (if pension loss is in included) is in excess of £1,000,000. A breach of the ACAS Code is to be taken seriously, in particular in a case such as this one in which it was found by the previous Tribunal that there was failure to follow any procedure in the claimant’s dismissal and grievance. There have been no arguments advanced to persuade this Tribunal that an uplift should not be awarded. It remains just and equitable to make such an award.

[18]The Tribunal considers it to be just and equitable to apply an uplift to the awards made for – Past economic loss – £609,433.80 Injury to feelings – £50,000 Bank costs – £6,741.60. NHS costs - £23,156 Bankruptcy costs - £53,445.11 These awards total £742,776.51.

[19]In addition to the above awards, when deciding on the appropriate level of uplift for failure to comply the relevant ACAS Code of Practice, the Tribunal has taken into account the claimant’s loss of pension in the sum of £411,318 which the Tribunal understands has been agreed and future economic loss of loss of £64,616.73 (£674,050.53 (£515,072.06 plus £158,978.47) less £609,433.80). These are sums to which the Tribunal would apply the uplift should it be asked by the parties to make an award.

[20]Having regard to the total sum awarded to the claimant and the justice and equity to both parties, the Tribunal considers that in all the circumstances an uplift of 25% would be disproportionate. The Tribunal, proceeding on the basis that the uplift will be applied to the above awards and the loss of pension and future loss, considers that an uplift of 2.5% should be awarded.

[21]This increases the awards made to date by £18,569.41 (2.5% of £742,776.51) which in all the circumstances, including that awards for loss of pension and future loss would be subject to the same uplift of 2.5%, the Tribunal considers to be proportionate in absolute terms and just and equitable. GROSSING UP

[22]It is not in dispute that the claimant should not be disadvantaged by the requirement to pay tax on a sum awarded to her that has been calculated to compensate for net financial loss. Applying the Gourley principle, the claimant submitted that the award she will receive is taxable and should therefore be grossed up to achieve a level of compensation that reflects what she would have received had she remained in employment. The Tribunal was referred to Sections 401 and 406 of the Income Tax (Earnings and Pensions) Act 2023, in particular Section 406(2) as inserted by the Finance (No.2) Act 2017, the case of Yorkshire Housing v Cuerden

UKEAT/0397/09

(pages 89 to 94) and Harvey (page 156).

[23]The respondent does not accept that the claimant will have to pay all or for that matter any of the tax which might be added to the award by grossing up. It is the respondent’s position that they have a statutory responsibility as the former employer to account to HMRC and make good any obligation for tax arising from the payment to the claimant. The respondent has given an undertaking that they will indemnify the claimant in respect of any tax liability arising from payment of the Tribunal award.

[24]The Tribunal is not in a position to rule on the respondent’s position regarding how much, if any tax is due on the sums awarded to the claimant. This is ultimately a matter to be determined by HMRC. There is a dispute between the parties regarding whether tax will have to be paid. The claimant is understandably concerned that she might be required to pay tax on an award based on her net financial loss. Until the Tribunal has a clearer understanding of how much, if any, tax is to be paid, it does not consider it to be in the interests of justice to gross up any award made to the claimant. If the respondent is correct and no tax, or less than the sum added to the award by grossing up, is due to be paid to HMRC the claimant will have received more than that to which she is entitled. In all the circumstances, including the respondent having given an undertaking to indemnify the claimant, such an overpayment would be contrary to the interests of justice. It will remain open to the parties to return to the Tribunal in the event that it is necessary to gross up any award to take account of tax to be paid by the claimant to HMRC and in respect of which the respondent has failed or refused to make payment. ADJUSTMENT FOR ACCELERATED RECEIPT

[25]The claimant submitted that there should be no discount for accelerated receipt. The Tribunal was referred to the case of Bentwood Bros (Manchester) Ltd v Shepherd

2003 IRLR 364

[26]The Tribunal recognises that payment made to a claimant for future loss would normally be adjusted to take account of accelerated receipt. In this case, the Tribunal was satisfied that an adjustment to the sum calculated by the Tribunal to represent future loss of £64,616.73 should be reduced by 2%. When deciding on the above percentage discount, account has been taken of the sum still to be paid and the and the date to which future loss has been calculated.