Case No 4103016/2023Venue GlasgowHearing 8 August 2024
Between
Ms D GemmellClaimantPolice ScotlandRespondent
Before
Employment Judge P O’DonnellMr D Jaap (instructed by Solicitor) for claimantMs V Ali (instructed by Solicitor) for respondentDate 6 August 2025
JUDGMENT
The unanimous judgment of the Employment Tribunal given orally at the hearing is that the claimant’s application of 8 August 2024 to amend her claim is refused
REASONS
[1]The claimant has applied to amend her ET1 to add a new claim of victimisation under s27 of the Equality Act 2010. The application was made partway through a multiple day final hearing to determining existing claims of direct disability discrimination and victimisation.[2]The detriments to which the claimant says she was subject were the respondent’s alleged withdrawal of her status as “ill health retained” and their withdrawal of the admission in the ET3 that she had that status. The protected acts which are said to have caused these detriments are those already pled in the ET1 in respect of the existing complaints of victimisation.[3]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 29.[4]The case of Selkent Bus Co Ltd v Moore [1996] ICR 836 confirms the Tribunal’s power to amend is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.[5]The Tribunal considers that it is appropriate to address each of the specific factors highlighted in Selkent, consider any other relevant factors and then take all of those into account in balancing the injustice and hardship to all sides.[6]First, there is the nature of the amendment. It is common ground that this is a wholly new cause of action arising from new facts that are not pled in the original ET1.[7]Second, there is the issue of the applicability of time limits. The position on time limits is not simple. Although the withdrawal of the admission in the ET3 has only occurred in the last few days, it is clear from the documents provided by Ms Ali that the alleged withdrawal of the ill health retained status occurred in January 2023 in the letter sent to the claimant setting out the decision on her grievance. It is clear from the terms of that letter that the respondent had informed the claimant that it was their position that she had not been put through the correct process to be considered as “ill health retained” and that this status had been applied to her in error.[8]It is not, therefore, correct to say, as Mr Jaap has submitted, that there is no issue of time limits arising from the new cause of action. There is clearly an issue about when time limits ran, potential issues of whether there is an act continuing over a period and whether the Tribunal exercises its discretion to hear any claim out of time.[9]The Tribunal does bear in mind the fact that a claim lodged now would be out of time is not fatal to the application to amend (Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650).[10]Further, If the amendment is allowed, the respondent is not deprived of the opportunity to raise the time bar defence and the issues relating to time bar identified can be determined subsequently (Galilee v Commissioner of Police of the Metropolis [2018] ICR 634). However, the additional issues are matters which are relevant to the balance of prejudice as they would add to the length and complexity of the present proceedings.[11]Third, there is the factor as to the timing and manner of the application. The application has come after the start of the hearing and after the claimant has given evidence. This is in the context that the facts giving rise to the new cause of action were all known to the claimant before the hearing started. Indeed, in respect of the withdrawal of the status of ill health retained, this was known to the claimant before the ET1 was lodged in May 2023 and throughout the case management process. There has been no explanation why this element of the amendment was not raised at an earlier stage of the proceedings.[12]It is not in dispute that the withdrawal of the admission in the ET3 was made only shortly before the start of the proceedings but it was still open to the claimant to make the amendment at the start of the hearing.[13]The Tribunal does bear in mind that this application arose from a discussion with parties about the list of issues included in the supplementary bundle. The Tribunal had sought clarification of certain matters in the list of issues and that led to a discussion of the need for the claimant to amend her ET1 if she sought to pursue certain claims relating to allegations of a breach of the duty to make reasonable adjustments.[14]It was only after that discussion that the present application was made and the Tribunal considers that had that discussion not taken place then the present application would not have been made. There is no explanation proffered by the claimant as to why the application was not made at the start of the hearing and before she gave evidence.[15]Having addressed the specific factors identified in Selkent, the Tribunal considered whether there were any other relevant factors.[16]The Tribunal considers that the merits of the new claim are not a factor that should feature heavily in its determination of the application given that there would need to be evidence heard regarding the events giving rise to the issue (for example, why the status was given to the claimant in the first place and how the respondent’s position came to change).[17]However, in relation to the withdrawal of the admission in the ET3, there is the question of whether this attracts judicial proceedings immunity. This is the principle that a party enjoys absolute immunity from any legal action brought in relation to things done in the course of legal proceedings such as anything said in evidence or correspondence between parties or to the Tribunal in the course of proceedings (Darker v Chief Constable of West Midlands Police 2001 1 AC 435, HL, South London and Maudsley NHS Trust v Dathi 2008 IRLR 350, EAT) This principle applies to the proceedings in this Tribunal (Heath v Commissioner of Police of the Metropolis 2005 ICR 329, CA).[18]The Tribunal has not come to a view on whether this immunity applies in this case but simply bears in mind that this adds complexity to the proceedings.[19]Turning to the balance of prejudice and hardship, the Tribunal agrees with the respondent’s submissions (which were not disputed by Mr Jaap) that allowing the amendment would mean that the present hearing would need to be adjourned to allow the respondent to prepare a response to the new claim. The hearing would then have to be relisted once it was clear what witnesses were required by both parties and case management directions made to deal with matters such as whether the claimant would be permitted to be recalled to give evidence on the new claim.[20]There is no question that both parties would be prejudiced by any such delay; the proceedings would be hanging over them and their witnesses for a considerable period of time. This is case which was lodged over 18 months ago and is dealing with events from 2022. A further delay to the progress of the claim will mean that witnesses will be asked to recall events from two years ago or more.[21]The Tribunal bears in mind that there has already been delay in this claim being progressed. The final hearing has been postponed twice (once at the request of the claimant and once at the request of the respondent). The Tribunal seeks to avoid further delay and considers that it is in the interests of both parties for the existing claims to be progressed.[22]Account has been taken of the fact that there is likely to be a delay in concluding the final hearing in any event. Time has been lost as a result of dealing with the present application and the remaining time is not likely to be sufficient to hear all of the evidence. However, any such delay would be less prejudicial to parties than the delay that would arise from adjourning the proceedings as a result of the amendment. Dealing with the amendment would result in a longer delay as there would need to be time for the respondent to present a response to the new claim, parties to identify witnesses and suitable dates to be found.[23]Further, any continued hearing necessitated by the amendment will be more complex given the various issues highlighted above regarding time bar and judicial proceedings immunity. These will need additional evidence to be heard (over and above the additional evidence needed to address the substantive merits of the new claims) and will mean that any such continued hearing will be longer than a continued hearing to deal with the present claims.[24]The Tribunal pauses to note that it does not agree with the submissions by Mr Jaap that no new witnesses will be required. There will need to be someone from the respondent to explain how the claimant came to be seen as having ill health retained status and how it came to light that this was now considered to be an error. It is not obvious that this evidence would be given from the present witnesses.[25]Indeed, there is one obvious new witness relating to the withdrawal of the admission in the ET3. Someone is going to have to explain why the admission was made and how the withdrawal came about. This may well mean that the respondent’s agent, Ms Ali, will have to give evidence herself to explain what instructions she had at the relevant time.[26]The Tribunal does take into account of the fact that any prejudice to the claimant in not allowing her to advance this new allegation in the present proceedings would be minimal as it would not prevent her from doing so at all. It would, as Mr Jaap recognised, be open to her to raise fresh proceedings in respect of this matter.[27]The Tribunal recognises that it may be in the interest of both parties for all allegations arising from the same factual matrix to be determined in the same proceedings. However, the new claim is not something so intrinsically linked to the present claims that there would be a prejudice to either party to have to deal with it in separate proceedings.[28]Taking all of these matters into account, the Tribunal considers that the balance of injustice and hardship falls in favour of the respondent and refusing the claimant’s application. In particular, the application has come very late in the course of proceedings when the issue was live even before the ET1 was lodged, it would involve a delay in the progress of the proceedings that would prejudice both parties and would increase the length and complexity of the proceedings.[29]For all these reasons, the claimant’s application is refused.
Evidence
[30]On 16 December 2022, the claimant contacted MMcB and LM by email at 9.49 (p138). Neither of them were in the office that day due to staff at Stewart Street being asked to work from home if possible due to construction work being done in the office car park. The claimant was aware of their absence from the office as she references this in the opening line of the email.[31]In the email, the claimant makes reference to cold weather and how this affects her. She describes herself as being in high pain. She makes reference to adjustments on her SCOPE record (SCOPE is the respondent’s electronic HR system which includes a tab that records matters such as adjustments) and the claimant had an adjustment for attendance in inclement weather. The claimant was not due to start her shift until 2pm and she states that she is going to struggle. She says that she is not sure what to do. She states that she needs another plan because she is affected by the weather and is forcing herself into work when she is in pain. She states that this causes her stress. She states that she does not like going off sick but is considering doing so because she cannot go into work stressed and in high pain.[32]MMcB informed SG of the claimant’s email. SG considered that the immediate priority was to determine if the claimant was unfit for duty; if that was the case then he would not expect the claimant to attend work as he would for any other employee. In relation to the suggestion of some plan to deal with similar situations, SG considered that a meeting could be arranged to discuss this.[33]MMcB replied to the claimant by email dated 16 December 2022 (p137) and informed her that he had spoken to SG and that they could have a discussion “next week” about how to move forward. He goes on to state that he hopes she can make it in but if she feels that she is not fit then she should follow the normal absence reporting process.[34]The claimant replies by email at 12.22 (p137) to repeat that cold weather affects her condition and that she has no choice but to phone in sick. She makes reference to having been through this before with other sergeants and that the Police Federation has previously issued a “formal warning” about her adjustments being mismanaged.[35]The claimant did report sick that day. Due to the shifts she was rostered to work, the claimant did not return to work until 21 December 2022.[36]In the meantime, the claimant contacted the Police Federation and spoke to IF. She explained that she was having issues with her supervisors in relation to her disability and adjustments. In particular, that her adjustments were not being met and that she had been told to phone in sick on 16 December when she had issues with inclement weather. IF stated that he would speak to SG to find out what was going. There was a discussion of arranging a disability passport for the claimant which is document used by the respondent to record an officer’s disability and any adjustments which can be viewed by any manager rather than the officer having to explain their adjustments each time they change department or get a new manager.[37]IF telephoned SG on 20 December 2022. On 26 December 2022, he made a note of what was discussed as part of a longer note about events relating to the claimant (pp139-140). He explained that she was concerned about being moved from the department and SG replied this was an option being explored. IF discussed the claimant’s disability and adjustments with SG and that what happened on 16 December went against those adjustments. IF raised the issue of completing a disability passport for the claimant and suggested a meeting with SG, himself and the claimant.[38]IF updated the claimant that a meeting would be arranged to discuss a disability passport and that either he or someone else from the Federation would be present.[39]On 21 December 2022, SG and MMcB attended Govan police station to meet the claimant. SG had not informed the claimant in advance that he was going to meet with her nor what the meeting was about. Similarly, he had not contacted IF or anyone else at the Police Federation about the meeting.[40]The claimant attended the station to start her shift at 2pm. She had seen SG but assumed he was there for some other meeting. Just before the start of her shift, SG approached her and explained that he was there to speak with her. He asked her to come into the conference room with him. He explained that MMcB was with him.[41]The claimant asked if the meeting was about her disability passport and SG replied that this was her return to work interview. These interviews are carried out when an officer has been off work and would normally be carried out by a line manager (a sergeant in the claimant’s case). The interview involves the completion of a pro-forma document relating to the reason for the absence and whether anything needs to be done to assist the return to work. The interview does not tend to take very long.[42]The claimant produced a note of the meeting after it was held on the advice of IF (pp171-186).[43]The meeting started by SG stating that he was annoyed at the claimant approaching the Federation and was not happy as he had no warning of this. The claimant replied that she had no choice. SG went on to assert that he did not care what the Federation said as he never met anyone with a good word to say about them. When the claimant replied that she had good experiences, SG replied that he hoped she was happy with IF as he was in complete agreement with SG and not the claimant.[44]SG then stated that the claimant was taking up too much of his time and he had spent two days in meetings and calls about her when he had a division to look after. He asserted that he had never managed anyone like her. He went on to say that he was “raging” about the points made by IF, particularly that the claimant did not feel supported. The claimant replied that she felt supported by LM and that her disability passport would help.[45]SG stated that the claimant would get her disability passport and that he agreed it needed done as well as an occupational health referral.[46]In relation to the events of 16 December 2022, SG told the claimant that she should have contacted him or MMcB. She replied that she did and that she contacted the office to be told they were all working from home. She explained that she had been unable to attend the office due to her disability and so had phoned in sick as instructed.[47]SG asked when something similar had last occurred and the claimant stated that it was in 2019 when adjustments were put in place. She explained that she takes a lot of the winter off because of the weather and that it had not happened again or she could not remember it happening.[48]SG asked the claimant what was meant by “inclement weather” and she replied that it meant snow or ice. He stated that it could mean wind too and asked the claimant if she was saying that she just did not come in if she did not “fancy” the weather. The claimant replied that she did not need an adjustment for wind.[49]SG pointed out when the email to MMcB and LM was sent and asked whether the claimant had just looked out of the window and decided she was not going to work. The claimant replied “sort of” and explained that she gets anxious driving in the snow as the cold affects her condition so if it did not clear then she could not drive. She stated that this was her adjustment and she should not have to go over it all the time.[50]SG stated that she could have phoned him and the claimant replied that she phoned the office and no-one was there. She did not have SG’s home number. MMcB stated that she had his number and she replied that she had a number from an old WhatsApp group but he had never given her permission to call it. When it was put to her that she could have put her home number in her email, she replied that it was on her SCOPE record and they could have called her. She asked is a different response would have been made to her email if there had been a call; SG replied no and MMcB stated that it would have made no difference and they would have just have been going around in circles about her adjustment.[51]In terms of the adjustment, SG and MMcB asserted that it did not say snow and ice and it needed to say that. The claimant replied that snow and ice was inclement weather and she did not understand.[52]SG asked whether the claimant could have travelled by different means or to a different station. The claimant explained why this would not have been possible.[53]SG stated that inclement weather was open to interpretation and the claimant replied that so were the emails that had been sent by all of them.[54]SG then stated that he wanted to move the claimant to crime management. She asked if this was because she went to the Federation and he replied that he could see how it might appear like that but he had been planning this for some time because she was not happy in the department. The claimant responded that she was happy doing her job and that she loved it. She was not happy at not being fit and having to have an office job but has had to accept it.[55]In response, SG stated that her colleagues did not like her and she was having an adverse effect on them. He went to state that supervisors find her a problem to manage. He said that no-one has probably told her this before but people cannot work with her and no-one has a nice word to say about her. She needs to do self-reflection as what she sees, others do not; she is not good at her job; not being in Stewart Street and her attitude negatively affects others. He went on to state that people do not like to be around her.[56]He made reference to a particular sergeant and when the claimant gave a name and SG stated that this sergeant told him that he pitied SG for having to manage the claimant as she was so negative and unhappy. The claimant made reference to other people she got along with and SG replied that they did not have a good word to say about the claimant.[57]The discussion turned to her emails and SG stated that he would expect someone of her service to be more succinct and that the tone was aggressive. The claimant stated that she got people to proofread her emails and SG asked who. The claimant replied that she asked her sister who was a retired sergeant and SG stated that was a data protection offence. The claimant clarified that her sister only looked at her emails about her disability and not work emails which she asked colleagues about.[58]There was then a lengthy discussion about email communications and other issues around the operations of the department. The Tribunal does not intend to set this out in detail. During the course of the discussion, SG and MMcB complained about the time each of them spent dealing with the claimant’s emails. The claimant pointed out that she had not emailed SG since June as he had stated he did not want her to email him anymore.[59]SG went on the comment about how others felt about the claimant; he stated that LM finds her difficult; that SC had nothing good to say about her and kept a file on her; that another previous sergeant did not have a nice word to say about her.[60]The discussion returned to the issue of how the weather adjustment should be interpreted and the claimant informed SG that she had contacted HR about this.[61]SG also returned to the point that he wanted to move her as working from Govan without supervision was not working. The claimant replied that the shifts she worked were not ones worked by the sergeants anyway and she could not understand why it was now being said she could not work from Govan. In reply, SG asked if the claimant knew how long they had been in the meeting and that it had been over two hours with him and MMcB both being kept late.[62]The claimant asked what the purpose of the meeting had been but neither SG nor MMcB could explain. The meeting continued for a further period with a discussion of a number of matters which included a further request of whether the claimant would consider moving to Stewart Street and the claimant replying that she needed the adjustments.[63]The meeting concluded with SG stating that they were going round in circles and the claimant stating that she did not understand the purpose of the meeting. SG stated that he was going to arrange a further meeting and get HR and the “supers” to attend. The claimant was asked whether she wanted to go home and she replied that she was going off sick.[64]After the meeting, the claimant went into the toilet and contacted IF and her sister. She was in tears and very upset. IF’s note of the call (p140) described the claimant as being “extremely upset”.[65]During her call with her sister, the battery on the claimant’s phone died. Given the emotional state of the claimant during the call, her sister contacted the police to carry out a welfare check on the claimant as she was concerned about the call suddenly ending.[66]The claimant went off sick that day and has not returned to work since. She was on full pay until February 2024 when this ceased. The claimant’s pay was reinstated in March 2025 and, in total, she was without pay for 11 months and 2 weeks.[67]The claimant raised a grievance about the events giving rise to this case. This was heard by the respondent but was not upheld. The Tribunal heard evidence about the grievance and its outcome but does not consider that any of this was relevant to the issues to be determined in the case and so has not made any findings of fact about the grievance other than that both parties engaged in the process. Submissions[68]Both agents produced written submissions and adopted these. For the sake of brevity, the Tribunal does not intend to set out the submissions in detail. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[69]The Equality Act 2010 protects individuals from discrimination on the grounds of various protected characteristics. For the purposes of this case, the relevant characteristic is disability.[70]The definition of direct discrimination in the 2010 Act is as follows: 13 Direct discrimination A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[71]These provisions do not stand on their own and any discrimination must be in the context of the provisions of the Act which makes it unlawful to discriminate in particular circumstances. The relevant provision in this case is: 39 Employees and applicants An employer (A) must not discriminate against an employee of A's (B)— by dismissing B[72]The burden of proof in claims under the 2010 Act is set out in s136: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[73]The burden of proving the facts referred to in s136(2) lies with the claimant. If this subsection is satisfied, however, then the burden shifts to the respondent to satisfy subsection 3.[74]Although the test for direct discrimination forms a single question, the caselaw indicates that it is often helpful to separate this into two elements; the less favourable treatment and the reason for that less favourable treatment.[75]In order for there to be less favourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).[76]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (s23 of the Equality Act 2010). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (see, for example, Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124).[77]However, a difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International [2007] IRLR 246). The Tribunal needs evidence from which it could draw an inference that race was the reason for the difference in treatment.[78]It is important to remember that unreasonable or unfair behaviour is not enough to allow for an inference of direct discrimination (Bahl v The Law Society [2004] IRLR 799).[79]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong [2005] ICR 931 (as approved by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870).[80]The test for victimisation is set out in s27 of the Equality Act 2010:- 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[81]Any detriment does not have to be solely by reason of the protected act; if any protected act has a ‘significant influence’ on the treatment of a claimant then victimisation is made out. (Nagarajan v London Regional Transport [1999] ICR 877, HL; Villalba v Merrill Lynch and Co Inc and ors 2007 ICR 469, EAT. In Igen (above) Lord Justice Peter Gibson clarified that for an influence to be ‘significant’ it does not have to be of great importance and is something more than trivial.[82]The provisions relating to the burden of proof set out above apply equally to a victimisation claim as they do to a claim for direct discrimination. Decision – direct discrimination[83]The Tribunal will deal with the claims of direct discrimination and victimisation in turn. There is an overlap between the claims given that certain of the alleged acts are said to be direct discrimination or victimisation but there are different tests to be considered.[84]In determining whether there was direct discrimination, the first issue to be considered is whether the claimant was subject to any detriment by the respondent. The claimant relies on five acts of alleged discrimination but the Tribunal considers that, in respect of a number of these, the respondent did not do what has been alleged or that what was alleged did not meet the test set down in Shamoon.[85]First, the respondent did not, at any time, seek to move the claimant from Govan to Stewart Street. There was no evidence at all that the respondent had instructed or required the claimant to move workplace and at all times her workplace remained Govan Police Station.[86]It is correct that the possibility of a move to Stewart Street was raised with the claimant on a few occasions but this was never more than a suggestion and the claimant was never being directed to move.[87]On 3 October 2022, the suggestion was made by MMcB during a Whatsapp discussion about whether the room the claimant was using at Govan remained suitable given that she was the only person using that room (which was described as being relatively large). It was suggested to her that, if being on her own was an issue, a move to Stewart Street or a different department at Govan could be an option but it was made clear that there was no issue with the claimant continuing in her present role at Govan.[88]This does not, in the Tribunal’s view, amount to the respondent seeking to move the claimant but, rather, a line manager exploring options that might resolve a potential issue for the claimant.[89]The only other instance where the possibility of a move to Stewart Street was discussed was during the meeting of 21 December 2022 in which the 3 October discussion was referenced. Again, there was no direction or instruction that the claimant should move.[90]In the claimant’s submissions, it is said that the claimant was “constantly” being asked to move to Stewart Street but the Tribunal only heard evidence about these two discussions. There was no evidence of any other instance when a move to Stewart Street was raised, let alone any instance where the claimant was instructed or pressured to move.[91]Generally speaking, an employer must be entitled to explore whether adjustments remain necessary over time and a reasonable worker would not consider simply being asked about this to put them at a disadvantage where they were not being required to move and could choose to remain at the same workplace.[92]The Tribunal did hear evidence that SG had an intention to move the claimant to Stewart Street but this had not been actioned. A claim of direct discrimination is not speculative; it can only be based on what has been done and not what might be done at some point in the future.[93]Second, the Tribunal does not consider that the claimant was denied an occupational health report in October 2022. There was no evidence at all of an express refusal to progress this request from the claimant. Rather, MMcB stated that it could not be done at that time because more information was needed to make a proper referral. He asked the claimant to contact the sergeants to take this forward, in particular because he was going on annual leave.[94]The evidence before the Tribunal was that this issue simply fell away rather than being refused. Neither the claimant nor the respondent took any further steps to progress a referral to occupational health. It cannot be said from the evidence before the Tribunal that the respondent were denying this referral to the claimant in circumstances where she did not take the necessary steps to progress this.[95]When asked by the Tribunal if she had taken the matter forward, the claimant replied that she thought that she had spoken to LM about it but gave no detail of when this was said to have occurred or what was discussed. Given that this matter is alleged to be both an act of discrimination and victimisation, the Tribunal considers that the claimant would recall such an important point. The burden of proof is on the claimant to establish that she was subject to a detriment and the Tribunal does not consider that the claimant’s evidence was sufficient to establish that it was the respondent who had failed to take matters forward.[96]Rather, the claimant’s case on this point is that it was MMcB who refused the referral on 4 October 2022 and, for the reasons set out above, he was not refusing to make a referral but simply asking for more information to be able to make the referral. A reasonable worker would not consider being asked to provide this information to have disadvantaged them.[97]Third, the Tribunal does not consider that the respondent rostered the claimant as sick on 16 December 2022. It was clear from the evidence that it was the claimant who reported sick on that day and not any of her line managers who recorded her as being sick.[98]The circumstances in which the claimant came to report sick on that day are important. The email exchange between the claimant and MMcB shows that it was the claimant who raised the issue of reporting sick; her initial email raises her concerns about whether she would be able to travel to work given the weather and how this affected her; she also states that she is in a high degree of pain which might affect her ability to work; in this email the claimant states that she is thinking of reporting sick.[99]In his reply, MMcB gives the claimant information about how to report as sick but, importantly, does not instruct her to do so. It is the claimant who subsequently calls in sick and this was her decision not that of the respondent.[100]The claimant’s real complaint in respect of this matter is that MMcB did not offer her special leave as had been done by other sergeants (such as SC) in the past. However, that is not the claim that is put before the Tribunal and it is a very different matter from the case which the Tribunal is being asked to determine. As the Tribunal will address in more detail below, the claimant seeking to run a different case from the one pled in the ET1 is a theme running through the proceedings.[101]The Tribunal does consider that the remaining allegations did occur and were detriments. There was no dispute that the claimant and MMcB got into a heated discussion in April 2022 when she requested assistance with the workload on a particular day; MMcB accepted this and his end of the telephone conversation was overheard by JK. There is no question that a worker who is shouted at by their line manager would consider themselves disadvantaged in the circumstances in which they had to work.[102]Similarly, for reasons which the Tribunal will set out below in respect of the victimisation claim, the Tribunal considers that the conduct of the meeting on 23 December 2022 amounts to a detriment.[103]However, there is no evidence from which the Tribunal can conclude that the other elements of the test for direct discrimination are met in respect of these detriments (or, indeed, in respect of the three matters which the Tribunal has found did not amount to detriments).[104]The Tribunal needs to be satisfied that someone without the claimant’s disability would have been treated differently in the same or similar circumstances as the claimant. No actual comparator was advanced by the claimant and so the Tribunal has to consider whether there was any evidence that a hypothetical comparator (whether someone else with a disability but not the same one as the claimant or someone without a disability at all) would have been treated more favourably.[105]However, there was no evidence at all that someone without the claimant’s disability would have been treated any differently.[106]In particular, there was no evidence that any of the alleged conduct was on the grounds of the claimant’s disability. This is most obvious in relation to the heated conversation between the claimant and MMcB in April 2022. This discussion and the events leading to it had no connection to the claimant’s disability at all; she had contacted MMcB for assistance with the volume of work on the day in question rather than for anything related to her disability; the conversation had escalated into a heated one but, again, this had no connection with her disability at all.[107]The Tribunal does accept that other matters did have some connection with the claimant’s disability; she had requested the occupational health report so she could explain the effects of her disability; her difficulties with travelling to work on 16 December 2022 arose from the effects of her disability; the meeting on 23 December 2022 was ostensibly a return to work meeting in respect of the 16 December absence.[108]Similarly, the reason why the claimant was upset about these matters may be because she felt that her present line management were not wholly aware of the effects of her disability or the adjustments and that she was having to explain these to him.[109]However, the difficulty for the claimant is that the Tribunal was dealing with a claim of direct discrimination and not discrimination arising from disability or a breach of the duty to make reasonable adjustments. The Tribunal was, therefore, having to decide if the claimant was treated in the manner alleged because she had a disability and not because of something which may have arisen from that condition or because the respondent was not making adjustments for the effects of her condition.[110]As mentioned above, it was clear to the Tribunal that there were things about which the claimant was upset or aggrieved in how she had been treated by the respondent. It may be that the claimant has legitimate grievances about these matters but that is not what the Tribunal is dealing with in these proceedings. The Tribunal is deciding whether the claimant was treated less favourably on the grounds of disability and there is no evidence from which the Tribunal could draw the inference that anyone else in the same or similar circumstances would have been treated any differently or that the treatment of the claimant was on the grounds of her disability.[111]There was also an element in the claimant’s case of “putting the cart before the horse”. She gave evidence that the way she had been treated had worsened or triggered the symptoms of her disability but that is taking matters the wrong way round. The treatment in question has to be caused by the disability for there to be direct discrimination.[112]For all these reasons, the Tribunal does not consider that the claims of direct discrimination are well-founded and these are hereby dismissed. Decision - victimisation[113]The claimant relies on two matters as amounting to protected acts for the purposes of her victimisation claim; the emails of 16 December 2022 to MMcB; her contact with the Police Federation made between 16 and 20 December 2022. The respondent did not make any submissions disputing that these matters amounted to protected acts. Equally, they did not make any express concession that these were protected acts.[114]The Tribunal has considered whether the email correspondence of 16 December falls within the definition of a protected act in terms of s27(2) of the Equality Act. It certainly does not fall into s27(2)(a) or (b). However, the Tribunal does consider that the terms of both emails fall within the scope of s27(2)(c) and (d); the claimant is raising difficulties in attending work caused by her disability and seeking adjustments to assist with this in the future which is sufficient to amount to doing something “for the purposes of or in connection with” the Equality Act; she also alleges mismanagement of her adjustments which is sufficient to amount to an allegation of a breach of the Act.[115]In relation to the contact with the Police Federation, the Tribunal has no hesitation in accepting that this was a protected act. The undisputed evidence from both the claimant and IF was that the claimant had made allegations to IF that reasonable adjustments were not being carried by her managers. This clearly falls into the scope of s27(2)(c) and (d).[116]Turning to the alleged detriments, for the same reasons as given above in respect of the direct discrimination claim, the Tribunal does not consider that the first two matters relied on as acts of victimisation (that is, the alleged refusal of an occupational health report and rostering the claimant as sick on 16 December 2022) took place as alleged or amount to detriments.[117]The alleged detriment relating to occupation health took place before the claimant carried out either protected act. As a matter of logic, the respondent cannot have done something because of a protected act that the claimant has not yet done. Further, to the extent that the claimant relies on her contact with the Police Federation as the protected act, both of these alleged acts of victimisation cannot have been done because of that protected act where they took place before the claimant did the protected act.[118]For these reasons, the Tribunal considers that the victimisation claims based on these acts for not well-founded and are hereby dismissed.[119]The position is different in respect of the meeting on 21 December 2022 which did take place after the claimant carried out both protected acts. The Tribunal is satisfied that, by the time of the meeting, SG was aware of both protected acts; MMcB had discussed the 16 December emails with SG; IF had contacted SG on 20 December to discuss what the claimant had raised with him. SG was, therefore, aware of both protected acts.[120]The Tribunal does consider that the manner in which this meeting was conducted amounted to a detriment to the claimant on the basis that a reasonable worker would have considered that the conduct of the meeting had disadvantaged them in the circumstances in which they had to work.[121]It should be made clear that it was not the fact of the meeting that is the detriment. An employer must be entitled to meet with their employees to discuss matters in the workplace especially where, as in this case, there are issues which need to be resolved. It cannot be a detriment to hold such meetings but how such meetings are conducted can amount to a detriment.[122]In the present case, the Tribunal has concluded that the manner in which the meeting was conducted amounted to a detriment because of the following factors:-a. The claimant was given no indication in advance that SG was planning to have any sort of meeting with her. The undisputed evidence from both the claimant and SG was that he approached her at the start of her shift and asked to meet with her. This was the first the claimant knew of this meeting.b. The meeting was initially described as a return to work interview but it was clear from SG’s evidence that he had always intended the meeting to be more than that. He did not, however, inform the claimant of this at any point before the meeting or at the start. In fact, when the claimant asked if it was about her disability passport, SG replied that it was her return to work interview.c. In these circumstances, the Tribunal considers that the claimant was, in effect, “ambushed” by SG on 21 December. She went into a meeting about which she had no prior knowledge or opportunity to prepare.d. It also meant that the claimant was deprived of the opportunity to have representation from the Police Federation. SG, in his evidence, sought to suggest that the claimant indicating that she was okay to attend the meeting meant that she did not want the Federation present but this is somewhat disingenuous; the claimant did not know that the meeting was going to address the issues which it did; at most, she believed that it was a return to work interview which would not normally require the presence of a Federation representative. i. SG also gave evidence that he expected someone from the Federation to be present but it is difficult to see how he could have come to this conclusion when, on his own evidence, he did not provide IF or anyone else in the Federation with the date and time of the meeting. In any event, if he was expecting someone from the Federation to be present, he did not mention this to the claimant at the meeting or question why no-one from the Federation was present.e. If the meeting was to be a return to work interview as SG stated at the outset then it was not normal for this to be done by an Inspector and a Sergeant. The evidence heard by the Tribunal was that such meetings were nearly always done by a Sergeant alone. Instead, the claimant found herself facing two managers and being questioned about matters which went beyond what would normally be discussed at a return to work interview.f. Similarly, such interviews tend to be short in duration and not 1-2 hours as happened in this case. In his evidence, SG accepted that the meeting went on longer than it should and that he should have brought it to an end sooner than he did.g. The matters discussed in the meeting went beyond what would be discussed in a return to work interview. The Tribunal considers that SG was challenging the claimant on a number of issues. For example, he questions the terms of the claimant’s adjustment relating to weather asking her to define “inclement weather” and questioning this a number of times. In evidence he sought to suggest that he wanted a clearer definition and if that was what was sought then there would be no issue. However, the terms in which SG questions the claimant about this led the Tribunal to infer that he was challenging the validity of the adjustment. For example, at one point he asks the claimant whether she was saying that she does not come in “when you don’t fancy the weather?”.h. The matters being discussed are repetitive and SG raises the same points a number of times.i. SG also raises a number of issues that have no relation to the claimant’s absence or her disability. He informs her, out of the blue, that he wishes to move her to another department. As justification for this, he states that her colleagues do not like her and she is having an adverse effect on them. He states that she is a problem for her supervisors. He labours this point by saying that people cannot work with her and do not have a nice word to say about her. He states that she is no good at her job (despite no performance issues being raised). This continues with an assertion that her previous manager did not have a good thing to say about her and kept a file on her.j. He also seeks to undermine her relationship with the Police Federation by disparaging them and then suggesting IF is on his side and not that of the claimant.k. The length of the meeting and the issues being raised are not something that can be laid at the feet of the claimant. It is SG who raises most of the issues being discussed and not the claimant.[123]Taking all of this into account, the picture that emerges of this meeting is that the claimant was subject to an attack by SG without any prior warning or opportunity to prepare to defend herself. The claimant’s note of the meeting does not read like a return to work interview or a meeting to discuss and clarify the claimant’s adjustments. It reads like a disciplinary meeting where an employee is being told that their attitude and behaviour is unacceptable.[124]The Tribunal considers that any reasonable employee who suddenly finds them in such a meeting would consider that they had been disadvantaged in the circumstances in which they had to work. The things being asserted by SG in the meeting are all matters which would have a significant adverse effect on the claimant’s relationships at work, not just with her managers but also her colleagues and the Police Federation. Any employee being told that people did not want to work with her, that her colleagues did not like her and that she was not good at her job would undoubtedly and almost inevitably be adversely affected.[125]The next question for the Tribunal is whether this detriment was because of either or both of the protected acts. For the following reasons, the Tribunal finds that, consciously or subconsciously, the manner in which SG conducted the meeting was because of the protected acts:a. One of the very first things that SG raised at the meeting was the fact that he was annoyed with the claimant for approaching the Federation for assistance. The Tribunal considers that this was very clearly on his mind and his annoyance affected how he dealt with the meeting.b. Related to this is the proximity of the meeting to the contact from IF made the day before. This is not a case where the protected act (or SG’s knowledge of it) was something distant and therefore less likely to be an influence on SG’s conduct. The meeting was the very next day from SG learning that the claimant had raised issues relating to her disability with the Federation. It is much more likely that this would bear on SG and how he conducted himself.c. As noted above, the matters discussed at the meeting went far beyond what was necessary for a return to work interview or even a meeting to clarify the claimant’s adjustments. The comments about how other people felt about the claimant and her performance were not relevant to the purpose of the meeting. These are raised by SG as an explanation why he wanted to move the claimant to another department which itself is raised apropos of nothing. It is difficult not to see a degree of vindictiveness in the comments made to the claimant by SG about how others view her and the Tribunal does consider that there was an element of SG seeking to put the claimant in her place by raising these issues in the very blunt way that he did.d. When SG informs the claimant of his desire to move the claimant to another department, she asks if this was because she had gone to the Federation. SG replies that he can see how it could be seen that way. He goes on to state that he had been planning this for some time but there was no evidence of this before the Tribunal other than SG’s assertion. There was certainly no evidence of any communications from SG to other officers about vacancies in the other department or moving the claimant.e. There was no real effort by SG to actually resolve any issues with the claimant’s adjustments. The discussion about these, in particular the adjustment relating to weather, was not framed in a way that was looking for agreement on how this adjustment should be set out. The discussion on this concludes with SG and MMcB saying that the adjustment is open to interpretation without any attempt to resolve what the interpretation should be.f. The Tribunal does not consider that there was any real attempt by SG to have a Federation representative present. Although he gave evidence that he expected someone to be present, he made no effort to invite them or even inform then when the meeting would be taking place. The Tribunal considers that SG could not have reasonably expected the Federation to have been present and that his assertions in respect of this were somewhat disingenuous.g. It was clear from the evidence that SG had had issues with the claimant for some time and this is reflected in the matters discussed at the meeting (for example, the volume and content of emails the claimant had sent to him). However, the Tribunal considers that matters were brought to a head by the protected acts which had annoyed SG to such a degree that it had influenced how he dealt with the meeting.[126]For all these reasons, the Tribunal draws the inference that the protected acts had a significant influence on how SG had conducted the meeting on 21 December 2022.[127]The respondent has not advanced any defence under s27(3) of the Equality Act nor have they sought to avoid any liability for the acts of SG in terms of s109 of the Act.[128]In these circumstances, the Tribunal finds that the claimant was victimised by the respondent in the manner in which the meeting on 21 December 2022 was conducted.
Remedies
[129]Turning to the question of remedies, the claimant went on sick leave immediately after the meeting on 21 December 2022 and remains on sick leave to the present day. She has, however, received full pay for most of that period except for a period off 11 months and two weeks.[130]The Tribunal is satisfied that the claimant has been absent as a result of the act of victimisation found by the Tribunal. There has been no evidence to suggest any other reason for the claimant’s absence. In submissions, the respondent suggests that there has been no evidence showing that the claimant has been too stressed to return to work. However, the respondent has not, at any point, suggested that the claimant was not unfit for work, let alone led any evidence to support this submission. The claimant remains employed by the respondent and there is nothing before the Tribunal which indicates that the respondent has challenged the genuineness of her absence or the reason for it.[131]In these circumstances, the Tribunal is satisfied that any loss of wages caused by the claimant’s absence from work was caused by the victimisation found by the Tribunal.[132]The claimant earned £2509.67 a month and so her losses are £28108.30.[133]The Tribunal considered that it was appropriate to award interest on this sum in terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. In this case, the date of the contravention is 22 December 2022 (that is, the date of act of victimisation) and the “day of calculation” is 24 July 2025 when the Tribunal made its award.[134]Applying the formula in the Regulations, the Tribunal awards the sum of £2912.03 as interest on the compensation for loss of wages.[135]In determining the award for injury to feelings, the Tribunal took account of the most recent Presidential Guidance on the award of injury to feelings and concluded that it would be appropriate to make an award at the upper end of the first Vento band. In coming to this decision, the Tribunal took account of the following factors:a. There was only one act of victimisation found by the Tribunal and this is not a case where there was a series of acts that would lead to consideration of an award in one of the higher bands.b. The nature of the victimisation was more than something minor or trivial but was not of the type of conduct which would attract an award in the middle Vento band.c. The claimant was upset after the meeting to such a degree that her sister was concerned enough about her wellbeing to contact the respondent to check on her.d. The claimant went off sick as a result of this meeting and remains off work to the present day.[136]The Tribunal, therefore, considered that an award of £10000 should be awarded.[137]The Tribunal considered that it was appropriate to award interest on this sum in terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. In this case, the date of the contravention is 21 December 2022 (that is, the date of dismissal) and the “day of calculation” is 24 July 2025 when the Tribunal made its award.[138]Applying the formula in the Regulations, the Tribunal awards the sum of £2072.01 as interest on the compensation for injury to feelings.[139]The total award to the claimant is, therefore, £43092.35 (FORTY THREE THOUSAND NINETY TWO POUNDS AND THIRTY FOUR PENCE).