Mrs K Sandever v Chief Constable of the Police Service of Scotland: 4105392/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105392/2023Venue InvernessHearing 2,3,4, 5, 9,10,11, 17,18,19, 20, 23,24 and 25 March 2026
Between
Mrs K SandeverClaimantChief Constable of the Police Service of ScotlandRespondent
Before
Employment Judge A KempMr G Cunningham (instructed by Advocate) for respondentInstructed by for respondentMs D Donald (instructed by Solicitor) for respondentDate 11 June 2026
JUDGMENT
The claims are not within the jurisdiction of the Tribunal and the Claim is dismissed. E.T. Z4 (WR)
REASONS
[1]This was a Final Hearing into the claims made by the claimant set out below. The claimant presented an initial Claim Form herself, acting as a party litigant, but has thereafter been represented by solicitors.[2]There have been a number of Preliminary Hearings which were held on 15 March 2023, 21 March 2024, 20 September 2024, 19 February 2025 and 2 October 2025. Initially a Final Hearing was to take place in February 2025 but that was postponed.[3]Mr Smith appeared for the claimant and Mr Cunningham for the respondent.
Claims
[4]The claimant makes claims under sections 13, 19, 20 and 21, and 26 of the Equality Act 2010. The claimant relies on the protected characteristics of disability and sex. The respondent has admitted disability status and accepted that the respondent had knowledge of that from 30 April 2021, which the claimant confirmed was sufficient for the purposes of the present claim. All the claims are otherwise denied. The issue of jurisdiction had been reserved to this hearing. An issue of time bar is taken by the respondent and in effect arises for any matter that occurred on or before 9 May 2023, as to which issues of whether or not there was conduct extending over a period, if so for what period, and if not what is just and equitable, also arise under section 123 of the Act.[5]The Preliminary Hearing held on 20 September 2024 decided that this hearing take place in relation to liability only, with remedy reserved, and that was confirmed at the following Preliminary Hearing. Preliminary
Issues
[6]There were preliminary issues that I addressed with the agents prior to the hearing of evidence. I explained that the recording equipment in the Tribunal room that was used for the first week was not working. The hearing moved to another room on the fifth day and subsequently where the facility was working. There were other issues addressed as follows: (i) Strike out[7]The respondent sought a strike out of aspects of the claimant’s claim of direct sex discrimination in relation to 57 matters that had been set out in a document provided in November 2024. For reasons explained orally on the first day of the Final Hearing that application was refused. I reserved the issues that arose from the alleged lack of specification for submission and determination after evidence. (ii) Claimant’s use of a written witness statement[8]The claimant asked to use a written witness statement for her evidence in chief, presenting the statement itself only on the morning of the first day of the Final Hearing. The respondent opposed it, having earlier stated that if provided at least two weeks before the Final Hearing it would not be opposed. For reasons explained orally on the first day of the Final Hearing the claimant was permitted to give her evidence in chief by use of that statement. The respondent was permitted to start the evidence and cross examination on the following morning given that, so that there was sufficient time for reading and consideration of that statement which extended to 33 pages. Following the decision I read the terms of the said statement, having not done so prior to making the decision. (iii) Documents[9]The parties had prepared a Supplementary Bundle with additional documents added to that by the claimant, which neither party opposed being done. I considered it appropriate to receive it. (iv) Statement of Agreed Facts[10]Unfortunately, the parties had not agreed a Statement of Agreed Facts despite the terms of the Note and orders issued following the most recent Preliminary Hearing. (v) Chronology[11]The respondent had provided a draft chronology on the afternoon on 27 February 2026, that having been referred to in the most recent Preliminary Hearing. The claimant did not agree to all its terms, and in light of that unfortunately none was used accordingly. (vi) Cast List[12]Despite the order to prepare a cast list from the most recent Preliminary Hearing unfortunately none had been drafted. (vii) Timetabling[13]The parties had prepared a rough timetable but not with the specification required. I directed them to prepare an amended version with that, taking account of my decision on the use of a written witness statement and the claimant intimating that she intended to call one and possibly two other witnesses. It was a matter reviewed during the hearing. Issues[14]The parties had agreed a List of Issues. In my opinion it required modification, as discussed at the commencement of the hearing before me, and again on the seventh day when a revised List was provided by the parties when I explained orally that it was still not in a form that I considered capable of being wholly approved. The issues for determination are as set out in the Discussion section below where I explain the position in that regard further.
Evidence
[15]The parties as confirmed above had prepared a file or Bundle of Documents. They also tendered a Supplementary Bundle of Documents, and on the seventh day of the hearing the respondent tendered additional documents in a Second Supplementary Bundle, such that the total documentation was over 1,100 pages. Most but not all of the documents were spoken to in evidence.[16]Evidence was given by the claimant first. The claimant called her husband Mr Carl Sandever and Mr Andrew Card as witnesses. She was recalled to give evidence partly of consent, and in so far as there was opposition for the other part I decided that it was in accordance with the overriding objective to allow it for reasons given orally at the time.[17]Evidence for the respondent was given by Mr Jason Beeston (whose evidence was interposed after that of the claimant and before that of Mr Sandever as Mr Beeston was to be going abroad, to which the claimant consented) Mr Richard Baird, Mr Brian Bissett, Mr Richard Ross, Mr David McAlpine, Mr Lindsay Tulloch, Mr Stuart Fitzpatrick, Mr David Campbell, Ms Samantha Morrison, Ms Judy Hill, Mr Scott MacDonald and Ms Lucy Mackie. The ranks held by several of those witnesses at the material times are set out in the findings in fact below. Some have, since the events set out below, retired and others have been promoted.[18]The evidence was concluded on the last day allocated for the hearing, and the parties were agreed that they would provide written submissions thereafter, which I was content to adopt as the procedure. The date for doing so was extended, again by agreement, and submissions were provided on 17 April 2026.
Facts
[19]I considered all the evidence led before me not all of which is narrated in the Judgment. I found the following facts, which I consider material to the issues that are to be determined, to have been established: Parties[20]The claimant is Mrs Karen Sandever. She is a disabled person under section 6 of the Equality Act 2010 by reason of anxiety and depression.[21]The respondent is the Chief Constable of the Police Service of Scotland and as such responsible for police officers within Scotland.[22]The Police Service of Scotland is a disciplined organisation. Officers are assigned to ranks, and each rank is required to follow the lawful orders of those at a higher rank. It is divided into different divisions. Inverness is one of six Areas within N Division. To the east of N Division is A Division, with the boundary between them along the A96 being near to Nairn.[23]The ranks in the Police Service within N Division are, from lowest upwards: Police Constable, Sergeant, Inspector, Chief Inspector, Superintendent, and Chief Superintendent. Above those ranks are higher ranks at national level up to that of the respondent as Chief Constable.[24]The claimant joined the Northern Constabulary as a Probationary Police Constable in 2012, after a period as a Special Constable. She completed her probation in 2014, by which time Police Scotland had commenced operation. From then onwards she was a Police Constable.[25]The claimant was ordinarily based in the police office at Burnett Road, Inverness. The claimant initially worked a standard shift of 40 hours per week Monday to Friday, and on about six weekends per year undertook work at weekends voluntarily. During the Covid-19 pandemic the claimant worked from home. Structure[26]Police Constables are under the day to day management of a Sergeant to whom they are allocated. A Sergeant has responsibility and the ability to give orders to those Constables under his or her line management, but not generally to those Constables under the line management of other Sergeants, save for situations of urgency. A Sergeant is under the line management of an Inspector. The identity of the person who was the Sergeant for the claimant changed from time to time.[27]Police officers require a standard level of fitness in order to undertake the ordinary duties of a police officer. It is known as being deployable. It allows the officer to be deployed on front line policing duties. Police Constables on front line policing duties generally wear a uniform.[28]An officer who is not deployable, either permanently or temporarily, may be placed on non-operational duties, such as those concerning licensing or health and safety. That change is known as a modification. When on such non-operational duties the officer may be permitted not to wear a uniform. Some officers are allocated to duties which are not front line policing when they are deployable, and may be permitted to conduct their duties without wearing a uniform.[29]The demands placed on the Police Service are variable, and change from day to day. Officers who were intended to be undertaking one duty may be required to undertake other duties at very short notice. That may arise from an order from a superior officer, or by their own exercise of discretion. Viper[30]Viper is an acronym for Video Identification Parade Electronic Recording. It is a process which replaced in-person identity parades involving a person accused or suspected of a crime standing in a line with other persons, and a victim or witness who was vulnerable being asked to identify who had been involved in the matter from those in that line. The instructions for carrying out a Viper parade came from the Crown Office and Procurator Fiscal Service (COPFS), and was undertaken under the provisions of the Vulnerable Witnesses (Scotland) Act 2004.[31]The process for Viper mainly involved three stages:(1) Capturing the image of an accused or suspected person electronically, which for N Division was done in Inverness.(2) Compiling the remainder of the parade electronically, which involved adding electronic images of other persons to it in addition to the accused or suspected person, and was normally conducted by the claimant but not always so. It included identifying appropriate other persons to be included on the parade, and removing any particular identifying marks for the accused or suspected person such as tattoos.(3) The viewing of the completed electronic parade by a witness or victim, which could be done at Inverness or any police station, provided that the officer doing so was trained.[32]From September 2016 the claimant had a role as Viper Co-ordinator. She had been engaged in work related to Viper before being appointed to that role, doing so from 2015. She had found some difficulties when carrying out Viper work before being appointed as Co-ordinator. On 26 January 2016, before her appointment as Co-ordinator, the claimant had emailed Sergeant Dale Hanson about such a parade. He had replied on the following day stating that he hoped that he was not the default, and that he was up to his eyes in appraisals. The claimant had replied the same day stating that she had spoken to Liz, meaning Sergeant Reid, about matters, and that he was not the default.[33]The claimant was the first Viper Co-ordinator for N Division of Police Scotland. N Division covers the area of the Highlands and Islands. Her role in doing so was set out in an email from Sergeant Elizabeth Reid on 27 September 2016 which referred to having a dedicated Divisional Viper Unit run by the claimant and Sergeant Campbell. The claimant was to be assisted by Police Constable (PC) Samantha Morrison at that stage, although she had not at that time received the training on Viper.[34]The claimant had a general responsibility for managing Viper parades, which included liaising with COPFS and those to be involved including victims, witnesses, accused or suspected persons and their solicitors, maintaining appropriate records and handling evidence in relation to the parades, guiding victims and witnesses through the process, and supervising parades when she was involved. She was also involved in discussions with other Divisions and bodies in relation to Viper issues more widely.[35]Detective Inspector Richard Baird was the Viper Lead at that time, that being a part but not all of his duties. Viper Lead involved having strategic oversight. He had prepared a briefing paper about the prospective role on 19 March 2015, which the claimant saw in 2017. It had set out four options. The paper had been considered by more senior ranks, and the decision taken in or around 2015 not to proceed with any of those options but a form of combination of some parts of them, by which there would be a Coordinator who was a Police Constable acting with assistance from other officers trained in the process on a form of ad hoc basis. DI Baird’s preferred solution of having two Co-ordinators, or a Co-ordinator and a civilian employee to assist full time, had not been accepted.[36]The claimant underwent training before commencing the role. The claimant’s line manager initially was Sergeant David Campbell.[37]The claimant co-ordinated the Viper process, attending to matters such as communicating with the solicitor for the accused or suspect, co-ordinating with the witness who was to view the parade, booking transport from custody for an accused person who was to be the subject of the parade where required, and making arrangements for Viper operators to attend the viewing (those being officers of any rank who had been trained on the process, two being required for each one for reasons of corroboration of evidence). The claimant also explained the requirements and related matters to the witness. Some were victims of violence including sexual violence. She maintained documentation in relation to the process. She also was involved in documenting the process for each of the stages.[38]COPFS required that parades be conducted within particular timescales, which for a person on remand may be a matter of a few days, and under particular provisions. They included that those undertaking the Viper process would not have had prior involvement in the matter, and corroboration of it such that a second officer was required to be present for the viewing. Records in standard format were to be maintained.[39]A bank of officers who could act as Viper Operators, of a variety of ranks, was set up. Each officer required to have received the necessary training in order to be able to do so, either for all matters or only for the viewing stage. The claimant was trained so as to be a trainer for that purpose. One of those trained to undertake viewings was Sergeant Campbell, and another was his line manager Inspector Jason Beeston. Sergeant Campbell was also trained so as to be able to give the training. A spreadsheet was maintained by the claimant showing who was available and when to act as a Viper operator, using information on a database called SCOPE which included shift details for each of those operators. The claimant was able to wear her own civilian clothing when undertaking her Viper Co-ordinator duties.[40]The time spent on the process depended on what was involved, but for the viewing stage was normally of the order of 45 – 60 minutes.[41]Initially the claimant spoke to Viper operators in person asking them to be involved in particular parades. As a Police Constable she was not in a position to give a formal order or an instruction for that to be done. She found that on occasion they said after they had been asked to attend on a particular date and time that they said that they had forgotten the conversation or arrangements, or they would challenge her decisionmaking skills. On other occasions those she approached said that they could not do so. There were cancellations of some Viper parades in such circumstances, including when a second Viper operator could not be arranged to attend, or stated that they could no longer do so. The claimant found it stressful when these situations occurred and when she was addressed face to face. The claimant then began to confirm the arrangements made with the Viper operator and their supervisor by email either after agreement had been reached, or where she wished to propose that to a particular operator for the first time.[42]Viper operators when asked to attend a particular parade by email thereafter would not infrequently not agree to do so, giving reasons for that such as other work, duty periods ending, or otherwise. The claimant regularly raised the issues around lack of compliance with Viper requests she had made with her supervisor Sergeant Campbell.[43]In early 2017 the claimant raised the issues she had from what she thought was some of her colleagues not co-operating with Sergeant Campbell, and he said that he would raise it with DI Baird. On 21 August 2017 the claimant emailed Inspector Baird about her role, when she had concerns that she was being distracted from it by other duties. He responded on 23 August 2017 stating that he was working on another paper and was aware of a conflict between what is needed for Viper and “how Inspector Beeston sees your role”.[44]On 25 September 2017 the claimant contacted Sergeant Julie Connor a Police Federation (“the Federation”) representative, and had a discussion with her about her concerns over the operation of the unit. The Federation is an organisation which provides support to police officers.[45]Also, on 25 September 2017 Sergeant Campbell emailed DI Baird asking him to put out a message to all Inspectors and Viper operators reminding them of the importance of the process. That was done, and included that: “If called upon to attend and assist at a capture or a viewing it is expected that VIPER trained officers will make every effort to do so. It is not acceptable practice to cancel your attendance at short notice, without making contingency and identifying a replacement to go in your place.”[46]The claimant responded to DI Baird’s message on 27 September 2017. The claimant then spoke to Sergeant Campbell, who agreed that the role of Viper Co-ordinator was a full-time position. That did not mean that the role was the only responsibility for the claimant, and if operational needs required it she could be deployed to other duties.[47]DI Baird emailed the claimant on 2 October 2017 informing her that a new DI, Eddie Ross, was shortly to be the new Divisional Viper Lead. He was to be the new Inverness Area DI, to be based at Burnett Road Police Station.[48]The claimant and DI Baird exchanged emails on 16 October 2017, about the terms of the message to be sent about Viper. Shortly thereafter a bulletin was placed in the Divisional Information Bulletin which was circulated to officers in N Division. Its terms had been agreed with the claimant, and referred to the considerable lengths that the claimant went to in her role, and stating that if called on to do so officers make every effort to attend a Viper capture, by which images were obtained of an accused person, and that if they were not able to do so it was their responsibility to find an alternative.[49]On 25 October 2017 the claimant emailed the Area Commander, Superintendent Ian Graham, with regard to her position and he replied to set out his understanding of that. He stated that he had agreed that due to her increasing workload she was not to undertake support duties, and that there had been discussion about training more officers to support her.[50]On 9 November 2017 the claimant had a performance development conversation with Sergeant Campbell. In advance of that he sent her an email referring to her “new stand alone role”. The discussion was recorded on a form on the following day, on which they exchanged emails. The claimant said that she did not like selling herself, and Sergeant Campbell said she should never shy away from doing so. His comments were complimentary of how the claimant had performed.[51]On 17 July 2018 the claimant was asked by DI Baird to review a spreadsheet showing the officers who were Viper Operators to check who could be deployed to do so. The claimant replied that day showing those deployable on that spreadsheet, totalling 24 officers one of whom was the claimant herself. Her email added that there were three others who were deployable, and 6 officers in Kirkwall and 2 in Lerwick who had been trained to undertake viewings.[52]The claimant was rostered to work on the Belladrum music festival. It was to be held over a period of Thursday to Sunday in the end of July 2018, and required substantial police support. Approximately six days before it was due to be held, and on 27 July 2018, the claimant emailed Sergeants Bisset and Richard Ross about the difficulties she would be caused by attending the music festival. Sergeant Ross asked Sergeant Bisset for his views when he came into the latter’s office, and Sergeant Bisset looked at the claimant’s email. In error Sergeant Bisset emailed her in reply that day, about 20 minutes after her email had been sent, when he had intended to send it to Mr Ross. He referred in his email to the claimant as “she” in an email which had below it the claimant’s email to them both. He questioned her reasoning for asking not to attend. The claimant’s attendance at that festival was required, and she did so.[53]The claimant intimated her concerns over what had happened and the comments from Sergeant Bisset to Sergeant Campbell by email on 27 July 2018. He spoke to Sergeant Bisset who apologised to the claimant through him, which Sergeant Campbell relayed to the claimant. Sergeant Bisset did not do so to the claimant directly. She separately emailed Sergeants Bisset and Ross outlining the difficulties she had because of abstraction from her Viper duties. An abstraction is when an officer is taken away from one duty in order to perform another.[54]Sergeant Ross emailed the claimant on 27 July 2018 stating that she had been rostered for the duty at Belladrum on 4 May 2018, and on the following day an email had been sent to all officers asking for any issues about it to be highlighted to line management. He stated that raising the issue 6 days before the event did not allow time to organise a replacement.[55]Inspector Beeston emailed the claimant on 10 October 2018 and asked if she had a list of those declining and reasons, and to keep one in future. He stated that he would discuss matters with Sergeant Campbell and they would look for ways to support her.[56]On 3 April 2019 the claimant emailed Sergeant Campbell commenting on a proposed restructure, noting that if two officers were to act as Viper Coordinators there may be insufficient work for her to do, and stating that her workload was manageable.[57]On 5 April 2019 the claimant received an email from Sergeant Jack Weatherall with regard to Viper. She had checked his SCOPE entry and understood that he was available. The claimant had taken exception to his use of a term of “helping out”. She had asked him to undertake a Viper viewing corroborating role in her email of 26 March 2019, which he commented on in a reply the following day to say that he could not as he was “on an extradition job in Glasgow”. He explained in his later email his use of the term of helping out. His SCOPE record had not been updated to show the Glasgow work he was doing.[58]On 14 May 2019 the claimant wrote to Sergeant Richard Ross with a long list of reasons officers gave for not assisting on Viper roles. He replied the same day saying to leave it with him to think of how to resolve it, and asked if it was no longer a disciplined organisation, saying that he laughed at some of the responses.[59]In August 2019 the claimant consulted her GP about low mood. In November 2019 her GP diagnosed anxiety and depression, and said that it was due to work-related issues. The claimant informed Sergeant Ross of that. The claimant received about eight sessions of counselling.[60]On 24 October 2019 the claimant emailed Detective Constable (DC) Jenny Martin about a short notice Viper capture of an accused person due to take place the following day, and asking “would you mind carrying out the capture”. DC Martin replied saying that she had gone to speak to her but the claimant had left, and that being asked to do the capture without prior consultation was “very frustrating”. The claimant responded later the same day explaining the position with regard to the matter and providing further details. DCI Maggie Miller emailed on 25 October 2019 stating that she agreed with Ms Martin, who stated that she appreciated the claimant’s challenges, and that it was not an easy task, and asked that in future the claimant make contact by phone or face to face.[61]On 25 March 2020 the claimant sent Inspector Judy Hill a stress risk assessment that she had completed.[62]The claimant was absent from her role from 4 April 2020 until 15 November 2020. She suffered from anxiety and depression, which she considered was caused or exacerbated by issues at the workplace. In particular she considered that officers were not accepting Viper operator duties and were making personal comments about her when responding.[63]The claimant completed a stress risk assessment form on 25 March 2020. It made reference to regular, at times daily, challenges from colleagues in relation to Viper as a cause of stress, and impact on sleep. She sent it to Inspector Judy Hill after a meeting they had held the previous day. She acknowledged it on 30 March 2020 and referred to having a meeting involving Sergeant Campbell who was again to be her line manager.[64]On 2 June 2020 the claimant wrote to her GP as she was approaching the end of a fit note period that had been issued. Her absence had been certified to that time as because of depression. She asked that the GP consider referring to stress at work. She did so.[65]On 13 August 2020 Police Constable Karen Mackenzie sent an email to Sergeant Campbell setting out her concerns over the Viper role she and two others were performing whilst the claimant was off sick.[66]On 28 August 2020 PC Mackenzie sent an email to Inspector Beeston setting out matters and expressing the concern that if the claimant returned to that situation “it would have an extremely negative impact on her”.[67]On 4 September 2020 as the claimant was approaching the end of a period of six months of absence, after which she would ordinarily move to half pay, she approached the Police Federation. Ross Polwarth of the Federation, on her behalf, applied for an extension of sick pay by email of 4 September 2020. It was not accepted by the Service.[68]On 23 September 2020 the claimant received a call from Inspector Beeston. Inspector Beeston informed the claimant of three steps being taken in an effort at improving matters for Viper operations. They were(i) two members of staff assisting the claimant(ii) 18 officers to be trained as Operators, with a request for volunteers to do so and(iii) where there was an Operator not agreeing to undertake Viper duty engagement of that officer’s line manager.[69]On 24 September 2020 Inspector Beeston made a referral to Occupational Health (OH) in relation to the claimant.[70]OH issued a report in relation to the claimant on 13 October 2020. It stated that she was not then fit for work, but was expected to be so at the end of the fit note then current, and recommended a period of two weeks on nonoperational duties. It referred to the reason for absence as work related stress. It had the opinion that the claimant was not likely to be a disabled person under the Equality Act 2010.[71]On 19 October 2020 the claimant exchanged emails with Mr Polwarth about the support she sought from the Federation. The claimant stated “Surely there are solicitors appointed by the Federation to deal with employment law? It must be discriminatory if mental illness caused by employers are not covered in some way by the legal services offered by the Federation. If not, I’ll look into it myself.”[72]On 23 October 2020 the claimant sent a further stress risk assessment to Sergeant Campbell.[73]The claimant spoke to Digby Brown, solicitors in October 2020. They had been appointed by the Federation, and told the claimant that the matter was most suited to employment law assistance.[74]On 10 November 2020 Inspector Beeston emailed PC Scott MacDonald attaching the claimant’s stress risk assessment in advance of the claimant’s return to work and stated that he would “like to have something positive to tell” the claimant.[75]The claimant returned to work on 15 November 2020 on a phased return basis. When the claimant returned to work there was a backlog of around 50 Vipers to undertake. PCs Ronnie Mackenzie and Karen Mackenzie who had been undertaking Viper duties during the claimant’s absence were moved to new roles. The claimant’s record on SCOPE was changed to reflect that she was not fit for operational duties, known as being nondeployable, and she was able to concentrate on Viper duties.[76]On 23 November 2020 Inspector Beeston responded to PC Mackenzie referring to the solutions he was working on in relation to Viper issues with Sergeant Campbell. That response was later forwarded to the claimant by PC Morrison.[77]On 26 November 2020 the claimant exchanged emails with PC Andrew Card. He explained that as he was not due to start a new role in the Justice Centre in Inverness he had volunteered to be trained on Vipers, but had been removed from the training course for that because of his new role.[78]An email address for the Viper unit was created in an effort to depersonalise the process of requesting operators to assist in Viper requests and the responses to those requests. The claimant was informed that she was doing a good job on a regular basis by Sergeant Campbell and Inspector Beeston.[79]In December 2020 a job vacancy was advertised on behalf of the respondent for a role to assist the claimant.[80]On 22 January 2021 the claimant was called by Inspector Beeston, who referred to his understanding of mental health from his military experience. He was friends with those who had suffered from PTSD. He suggested that the claimant make use of every facility available to her, and they discussed cognitive behaviour therapy. He suggested that the claimant make a self-referral to OH. He had understood that that was possible, and did not wish there to be delay in that being done. Although the claimant tried to do so and emailed OH on 23 January 2021, she was told by them that there required to be a referral from her line management.[81]At about the same time the claimant emailed Ms Kirsteen MacDonald the Mental Health and Wellbeing Project Officer of the respondent who referred her to a link for a self referral for counselling, which the claimant actioned. The claimant received an email from Inspector Hill on 27 January 2021 referring to OH, known as Optima, stating that they could only advise on fitness to work and whether there are any reasonable adjustments that could be made to support her at work. She suggested that the claimant discuss matters with her line managers and offered to meet her.[82]PC Card was appointed to the vacancy in February 2021. He was involved in Viper work for a period of about three months, before he did not wish to do so further after finding the process difficult in light of his medical condition. When he was acting in the role he experienced other officers not accepting requests from him to act as corroborating officers for a viewing on a number of occasions.[83]In or about early 2021 the claimant required to move office when the office she had been using was required by a Sergeant. Inspector Beeston made representations about that on her behalf but the decision was taken to do so at a higher level.[84]The claimant spoke to Inspector Judy Hill and provided her with notes as to the background. Inspector Hill suggested that she speak with Sergeant Campbell and Inspector Beeston.[85]The claimant applied to the Federation for legal advice and assistance on 26 March 2021 stating that it was for employment law and outlining the background.[86]The claimant was referred again to OH in April 2021. In the reference it was recorded that the claimant “believes that her condition may now be classed as a disability.” She had by then returned to full duties after an extended 12 week phased return to work. The referral raised a number of questions including whether the claimant was fit for duty, whether she was a disabled person and whether adjustments could be made.[87]The claimant submitted a flexible working request that month, seeking to reduce her working hours to 30 per week.[88]An OH report was issued on 30 April 2021. It had the opinion that the claimant was a disabled person under the Equality Act 2010, and referred to the first report. It assessed her as fit for her normal duties at present, including for deployment on operational duties. It added: “However I am concerned that if the situation relating to her perceived current work issues are not addressed this will likely result in another absence. Given symptoms and triggers remain largely unchanged since her last occupational health consultation my advice is also largely unchanged, and I therefore refer you back to past correspondence.”[89]In answer to the question as to whether adjustments could be made, it suggested that “meaningful discussions should take place to explore the problems [the claimant] has encountered and the actions that need to take place to restore her confidence in the organisation.” It was suggested that the discussions take place with the claimant and those directly concerned such as her line manager as soon as possible. It added that it would be beneficial for line management to remain in close contact with the claimant, and to carrying out a stress risk assessment.[90]The respondent was aware that the claimant was a disabled person from and after the date of that report, 30 April 2021.[91]At around the end of April 2021 the claimant had a discussion with a solicitor appointed by the Federation at Digby Brown Solicitors, during which the solicitor did not refer to having received instructions from the Federation. The advice given to the claimant by that solicitor was to the effect that the matter raised by the claimant was not a personal injury claim but an employment one.[92]On 5 May 2021 the claimant emailed Mr Polwarth referring to the OH report stating “From the assessment it could be a grievance with protection under the equality act. That’s what the solicitor did say.” That was a reference to the discussion held by the claimant with Digby Brown Solicitors. First grievance[93]The claimant intimated a grievance in writing on 24 May 2021. She raised it with Human Resources (HR). She alleged that other officers did not cooperate on Viper tasks, that her line management had not supported her, and that the way she had been treated felt intimidating and bullying. She referred to having completed a stress risk assessment and suggesting solutions which had not been discussed with her. She referred to the second OH report, and stated that “it is their opinion that I will be covered under the Equality Act” and set out the outcomes she sought. One was that officers were identified by line managers to undertake Viper work as a duty not one that was optional. The claimant did not allege sex discrimination.[94]Tara Chapman of HR responded that day and asked about the knowledge of her line management with regard to the grievance. The claimant replied on 24 May 2021 to the effect that she understood that as the grievance involved her managers she did not submit it to them.[95]Inspector Steve Mackenzie contacted the claimant about the grievance and emailed her on 4 June 2021 to arrange a meeting to discuss it over Teams on 11 June 2021. That meeting took place. A note of that meeting was sent to the claimant afterwards which she responded to with some amendments. The note with amendments is a reasonably accurate record of it.[96]On 9 June 2021 the claimant made a further application to the Federation for legal advice and assistance.[97]The claimant completed a Disability Passport on 14 June 2021. A Disability Passport is a document used by the respondent to record adjustments to duties or otherwise for officers, and is applied whether the officer is a disabled person under the Equality Act 2010 or not. It was provided to Temporary Inspector Cooper. It mentioned the claimant being on modified duties. It was not recorded on her SCOPE record.[98]The claimant emailed Citizens Advice for “advice: employment” [which email was not before the Tribunal]. They replied on 15 June 2021 and referred to going to the Employment Tribunal if there were breaches of “an employment or equality right.” Their reply also referred to personal injury claims and health and safety duties.[99]The claimant received a decision on her grievance on 16 August 2021, although the letter for it was dated 26 July 2021. It stated that the claimant’s line management did appreciate the work she did, and were seeking to support her including finding solutions to staffing issues. It referred to more officers being trained on Viper. It referred, in summary, to a new process for involving management where Vipers were declined by operators was to be introduced. The claimant’s suggestions for improving matters were otherwise not accepted. The decision did not specifically accept or reject her grievance but commented on the position for the issues the claimant had raised.[100]Around the same time, discussions took place around transferring responsibility for Vipers in the Elgin area from Aberdeen to Inverness. The claimant proposed that Aberdeen officers retain initial administrative responsibility, which Sergeant Campbell supported, but latterly that suggestion was not accepted by a decision of more senior management. The claimant was informed that she was to undertake the work required in relation to Elgin Viper parades.[101]In August 2021 the claimant’s hours were changed at her request such that she started and finished an hour earlier, and worked from 8am to 4pm.[102]The claimant’s Disability Passport was amended on 10 September 2021 by Inspector Beeston. It noted that the claimant was not deployable but may be in future, and that the Passport was to be reviewed by 30 November 2021. It stated that restrictions to duties were made, and were for over 12 months. The Disability Passport recorded the claimant’s request for reasonable adjustments, and the decision by Inspector Beeston to approve that. Those adjustments were compressed hours, that the claimant was not deployable, and that there was to be a new process for Viper and related matters. There was reference to a new email procedure for captures. The secondment was noted to be put in place to January 2022 and uplift of trained staff was ongoing. It stated “These changes are hoped to alleviate all the stressers [sic] that are currently affecting Karen at work and this will mean she will move from nondeployable to fully deployable in the coming review period.”[103]On 21 September 2021 the claimant made a further application to the Federation for legal advice and assistance. It referred to “employment disputes relating to police officers, which may include representation at an Employment Tribunal.”[104]On 27 October 2021 the claimant attended an absence support meeting by Teams with Inspector Beeston. After the meeting Inspector Beeston prepared a draft of a note of their meeting using a template document to do so. It concluded that no further such meetings were required. That was from a “Bradford score” for the claimant, which was below the level required for further action. A Bradford score is used by the respondent and others to assist in the management of absence. The claimant added her own comments to that document. She referred to wearing the uniform caused her to feel under pressure. She also emailed him with her comments to be noted on 1 November 2021 to which he responded the following day.[105]In or about November 2021 the claimant met Sergeant Stuart Fitzpatrick. He was to become her line manager from January 2022. The claimant outlined her concerns over Viper and lack of support she felt that she had.[106]On 22 November 2021 the claimant received an email from Sergeant Fitzpatrick rejecting her application for flexible working stating that it was not sustainable. He said that if additional resources allowed her hours could be amended. On 24 and 25 November 2021 the claimant and Sergeant Fitzpatrick exchanged further emails. The claimant informed him that she was on modified duties. She referred to her mental health issues. He acknowledged that. He advised the claimant of a vacancy that he understood might have been capable of allowing her to work reduced hours, but she confirmed that it was a full time role and she did not apply for it.[107]Sergeant Fitzpatrick looked at the claimant’s SCOPE records, and noted a yellow flag confirming that she was on modified duties. He had sight of the OH report of 30 April 2021. He considered that it indicated that the claimant was fit for operational duties. He had not read the section of the report at paragraphs 7 – 11 noting the view that the claimant was a disabled person, and making reference to having meetings with her to restore her confidence in the organisation, and maintain close contact.[108]He asked Inspector Beeston about a Disability Passport for the claimant. Inspector Beeston said that he was not able to provide it to him. Sergeant Fitzpatrick did not ask HR for it, or their assistance in obtaining it. Sergeant Fitzpatrick did not at any stage see the Disability Passport.[109]No review of the claimant’s Disability Passport took place on or before 30 November 2021 by Inspector Beeston or any other officer.[110]In about December 2021 Sergeant Fitzpatrick informed the claimant that she would be required to move from the office she had been using to one on the top floor of Burnett Road which had been a conference room. He did so as he wished to have the claimant, and PCs Macdonald and Jones work in the same room, so that they could each train the other on the duties that were to be new to them. PC Jones had not yet joined that unit but was to do so not long thereafter. He was aware that a CCTV room was to become available later when it was to be moved to the Town House in Inverness, at which point it could be used for the unit. At that point the conference room was the only option available with space for three persons to work in. He spoke to someone from the Health and Safety department who measured it and stated that it was of sufficient size. It had no windows, and it was stated that having fans and the door open to aid air circulation would be sufficient. That was then done in or about that month, and Sergeant Fitzpatrick moved into the room that the claimant had been using.[111]Sergeant Fitzpatrick spoke with Inspector Judy Hill about his proposal to manage the unit including the changes of role for the claimant, and understood from her that she approved his proposal.[112]On 13 January 2022 the claimant met Sergeant Fitzpatrick and Inspector Bisset who were her new line managers. Also present was PC Scott Macdonald. Sergeant Fitzpatrick re-iterated that the Viper Co-Ordinator role would in future be undertaken by the claimant and PCs Macdonald and Jones, the latter when she joined the unit, as a result of a decision taken at national level regarding Viper units being included within those who were deployable. He said that PCs Macdonald and Jones would require training to be able to do so. The claimant was to remain as Viper Co-ordinator. If there was a difficulty with trained officers not accepting a request to undertake Viper duties the intention was that one of PCs Macdonald and Jones would be able to do so. The expectation on the part of Sergeant Fitzpatrick was that the new arrangements would take weight off the claimant’s shoulders and reduce or remove the sources of stress for her from officers declining her requests.[113]Sergeant Fitzpatrick told the claimant that her modified duties would end. He removed the flag for that on SCOPE on or around the date of that meeting. The claimant was told at that meeting that she would return to uniform duties. Sergeant Fitzpatrick did so as he noted from the OH report of 30 April 2021 that the claimant was fit for operational duties, and a decision had been made by senior management within Police Scotland, at Assistant Chief Constable level, to move all officers from “back office” roles to being capable of being deployed on operational duties when it was possible for them to do so. It was not made clear to the claimant how frequently or infrequently she would be deployed on operational duties. She was told that her flexible working application would be the subject of a trial period, such that she would be working 32 hours per week. She mentioned additional stress. Sergeant Fitzpatrick said something to the effect that not all stress was bad and to the effect that she should forget the past.[114]During the meeting PCs Macdonald had left when matters solely relating to the claimant were being discussed. [No notes of the meeting were provided to the Tribunal].[115]After the meeting the claimant was extremely upset, and went home. She felt that the changes proposed were an attempt to intimidate her, and were a reduction in her status from being a Viper Co-ordinator. She felt broken, and had suicidal ideation at or around that time. She consulted her GP the following day, and was signed as unfit for work.[116]The claimant commenced a second period of absence from work from 14 January 2022. She did not return to her duties.[117]On 14 January 2022 Inspector Bisset telephoned her to check in with her as a new member of his team. Second grievance[118]The claimant raised a second grievance on 18 January 2022. It was sent to Temporary Chief Inspector Judy Hill. It raised the meeting on 13 January 2022 and the impact of the changes outlined at it on her mental health, and made detailed comments on the position as she saw it. She did not make mention of sex discrimination having occurred.[119]The claimant was invited to a meeting to discuss that grievance on 28 January 2022. Present at it were the claimant, Mr Polwarth, Inspector Hill, and two persons from HR one of whom took notes.[120]After the meeting the claimant was sent a note of it, and she returned it with comments of her own. The notes with those comments are a reasonably accurate record of the discussion.[121]The claimant spoke to Ms Laura Salmond, an accredited employment law specialist at BTO, Solicitors, who had been appointed to advise her by the Federation in February 2022. She exchanged emails with Ms Salmond on 19 February 2022 and 19 March 2022. Ms Salmond discussed with the claimant seeking an Opinion from counsel, which either the Federation or claimant could pay for. The claimant sought that from the Federation and was later told by telephone that the request for this had been refused [on a date not given in evidence].[122]On 3 March 2022 Chief Inspector Hill wrote to the claimant with her response to the grievance. It stated that she upheld some concerns that the claimant had raised, said that she would take relevant action. and commented on the issues that the claimant had raised. Inspector Hill stated that she hoped that the changes to duty would support her mental wellbeing in the long term. She referred to making an OH referral, after which a decision on how to proceed would be made. She stated “It would appear that your modified duties were not reviewed appropriately.” She stated that she had spoken to the line managers about the use of language by them.[123]An aspect of the outcome was that the clamant be put in touch with another officer to act as a “buddy”. Another was that the flexible working application would be given a three month trial. She reiterated that the claimant’s mental health and wellbeing was important and the respondent would do everything to support her to feel well and valued. She stated that “In return, I would ask that you are open and honest with us moving forward.”[124]Sergeant McAlpine was contacted by Chief Inspector Hill to undertake that role as a buddy. He arranged to meet the claimant. The claimant met Sergeant McAlpine in a café in Inverness in March 2022. She initially attended with her husband. Sergeant McAlpine requested to speak to the claimant alone, and Mr Sandever left. Sergeant McAlpine then spoke privately with the claimant. Neither the claimant nor her husband indicated any concern at that at the time. Sergeant McAlpine contacted the claimant occasionally by text thereafter. Appeal[125]On 10 March 2022 the claimant emailed Superintendent Pettigrew about an appeal against the grievance outcome. She replied to the claimant on 11 March 2022.[126]The claimant appealed the grievance decision by email to Chief Superintendent Lindsay Tulloch on 23 March 2022. It included that the issues she had raised in her grievance had been dismissed, and the outcome was not reasonable. He acknowledged that by email on 30 March 2022 and stated that he was reviewing it.[127]He discussed matters with Chief Inspector Hill. [No note of that discussion was before the Tribunal]. He contacted the claimant to arrange a meeting with her.[128]There is a Standard Operating Procedure in relation to grievances and appeals. Normally in an appeal there would be involvement from someone from HR, and a note of the hearing would be kept. No one from HR was involved in the appeal.[129]Chief Superintendent Tulloch discussed the appeal with the claimant by telephone or Teams in about mid April 2022. [No note of their discussion was before the Tribunal]. He listened to the claimant’s comments about her appeal, and was of the view that what Chief Inspector Hill had decided was reasonable. He considered that the claimant would benefit from an explanation of the reasons for that decision, which he gave to her. He had the impression at that meeting that she had accepted those reasons, and was content for the appeal to be addressed informally.[130]He wrote to the claimant following their discussion a few days after it occurred, by email on 22 April 2022, stating his view that they had agreed that the appeal be addressed informally, and noting his view that she was content to do so. He stated that he had spoken to Chief Inspector Hill about an email from Sergeant Bisset, which the claimant had raised with him. He added “I hope, as we agreed, you are satisfied with our discussion and the rationale I have been able to provide you with in relation to decisions made.”[131]He emailed the People Operations Manager to state that they had “come to a satisfactory conclusion in relation to the Grievance Appeal process” [which email was not before the Tribunal][132]On 19 May 2022 the claimant replied to Chief Superintendent Tulloch’s message stating in effect that she partially accepted his email. She stated that she “was agreeing that the decisions that had been made were not going to change”. She noted that he was shortly to retire.[133]In May 2022 Sergeant Lucy Mackie took over from Sergeant Fitzpatrick as the claimant’s line manager.[134]On 14 September 2022 the claimant attended an attendance support meeting by telephone with Sergeant Mackie. She referred the claimant back to OH. She sought to raise whether the claimant would be likely to return to work, any reasonable adjustments, or whether ill health retirement should be considered.[135]Also on 14 September 2022 the Federation refused the claimant’s application for legal advice and in particular to obtain an opinion from counsel. She appealed that by letter dated 1 October 2022. She argued that a failure to support her application for legal assistance in that regard meant that the Federation was supporting how she had been treated.[136]An OH report was issued on 1 November 2022. It stated that the claimant’s “health has been affected by excessive amounts of confrontation which has caused a disintegration of her psychological wellbeing at work.” She was not fit for work and required therapeutic intervention. It was not able to determine whether or when the claimant would be able to return to work, did not suggest any adjustments to facilitate a quicker return to work and made a further referral to the Force Medical Assessor (FMA) to take forward the potential ill health retirement of the claimant.[137]The claimant applied for ill health retirement from the Police Service. The claimant signed consent forms to allow her GP to provide a report in relation to the possibility of ill health retirement. The Federation supported ill health retirement for the claimant.[138]On 15 February 2023 the claimant wrote to the respondent a lengthy letter setting out a series of concerns and complaints in relation to how she had been treated.[139]On 24 February 2023 Dr S Ahmed the FMA issued a report stating that it was unlikely that the claimant would regain medical fitness for the ordinary duties of a police officer. He gave the opinion that she might be capable of other employment but it was not possible to predict when that might be. Termination of service[140]On 26 April 2023 a medical report from Dr M Newsom-Smith who had been asked to review the claimant’s ill health retirement by the FMA, and was in the role of Selected Medical Practitioner, concluded that the claimant was permanently disabled from undertaking the ordinary duties of a police officer and from regular employment. A certificate to that effect was issued.[141]The claimant attended by telephone a last attendance support meeting on 2 June 2023.[142]On 21 June 2023 the People Services Department of Police Scotland wrote to the claimant to confirm that her retiral on grounds of ill health had been approved, and would be effective from 18 July 2023.[143]The claimant’s service as a Police Constable terminated on 17 July 2023.[144]The claimant commenced early conciliation on 9 August 2023. The certificate therefor was issued on 14 August 2023.[145]A Claim Form was presented to the Tribunal by the claimant on 18 September 2023. The claimant had prepared it herself.[146]The claimant was formally accepted for pension as a result of ill health retirement on 16 October 2023.[147]On 20 October 2023 Area Commander Simon Reid replied to the claimant’s letter to the Chief Constable. His response commented on the issues that the claimant had raised, referred to an investigation into it, and expressed the view that it was preferable for the grievance appeal to have addressed appeal formally, and by taking a record of the discussions and outcome. Proposed comparators[148]PC Calum MacAulay commenced probation at a similar time as the claimant. He was posted to Shetland. His role included driving matters and he proposed setting up a road safety initiative. He had the use of an unmarked police car and speed detection equipment as a part of his role. Other officers had access to the same vehicle and equipment.[149]PC Daniel Sutherland was an officer at Dingwall who was not operationally fit for all the duties of a police officer as a result of a head injury. He was assigned to a role as a Wildlife Crime Officer, and for that role was provided with specialised clothing and equipment. He was permitted to attend events such as Highland Games.[150]PC Bradley O’Neill was a Community Policing Officer in the Merkinch area of Inverness, whose role included becoming known within the community there as a means of seeking to prevent or limit crime in an area that was economically deprived. He was not undertaking operational duties in that role generally but did so as and when required. In fulfilling those duties he was reported in the press as having taken people to lunch and repaired bicycles.[151]There were three Viper Co-ordinators in Aberdeen, part of A Division of Police Scotland, all of whom were male Police Constables. The Elgin area is within A Division.[152]Acting Sergeant Roy Reid, a male, made changes to an area at Burnett Road Police Office which meant that it was not able to be used for Viper purposes, although the claimant had used it to ensure that vulnerable witnesses did not contact each other, or for moving an accused person in custody. [The date on which that change occurred was not provided in evidence.] The claimant raised her concerns about that, but they were not accepted.[153]The claimant’s husband Carl Sandever is a Police Constable. He was injured at work on three occasions. On the first two he fractured a rib, and on the third he fractured a finger. On each occasion he was placed on light duties for a period to allow recovery from the injury. Other matters[154]The claimant’s SCOPE record had a tab for reasonable adjustments. It did not include within it anything in relation to her stress risk assessments, disability passport, OH reports or the Attendance Support Meetings. The sub-tab for adjustments had a tick against “no disability disclosed”. There was also a tab for absences, and for the period of absence between April and November 2020 stated “other miscellaneous”. For the absence from and after January 2022 it stated “stress”.[155]A report by Dr David Cumming, forensic psychiatrist, concluded that the claimant has symptoms consistent with Post Traumatic Stress Disorder from trauma experienced in childhood.[156]Police Scotland was established on 1 April 2013. It requires to operate within financial constraints set by the Scottish Government. The levels of staffing and other resources available to supervisory officers was restricted by the finance available. In general terms staffing levels are tight against the demands of the Service. Requests for resources require to be assessed by balancing competing priorities.[157]A report by a Police Scotland Independent Review Group in relation to violence against women and girls and related matters was issued in May 2024. It made reference to an acknowledgement by the respondent of institutional sexism within Police Scotland, and inter alia to a failure to address complaints of sexism, referred to women who raised concerns being labelled as troublemakers, and to “diminishing their opportunities for promotion, unfair treatment, intimidation and bullying of those who raised a complaint, with little to no support from senior management or corporate services.” Submissions for claimant[158]The claimant provided a full written submission although it was described as a skeleton. In essentials the claimant’s solicitor asked me to find in favour of the claimant, accepting her evidence and determine liability accordingly. Reliance was placed on a series of authorities many of which are set out below, but not all. I took into account all that was set out. Respondent’s submission[159]The respondent also provided a full written submission, which referred to a series of authorities similarly. In essentials I was moved to find in favour of the respondent accepting its evidence, and to dismiss the claim.
Law
[160]The law relating to discrimination is found in statute and case law, and account may be taken of guidance in a statutory code. (i) Statute[161]Section 4 of the Equality Act 2010 (“the 2010 Act”) provides that disability and sex are each a protected characteristic.[162]Section 13 of the Act provides 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.”[163]Section 19 provides as follows: “19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) The relevant protected characteristics are—• …..disability….• sex….”[164]Section 20 of the Act provides as follows: “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……”[165]Section 21 of the Act provides: “21 Failure to comply with 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….”[166]Section 23 of the Act provides: “Comparison by reference to circumstances (1) On a comparison of cases for the purposes of sections 13, 14 and 19 there must be no material difference between the circumstances relating to each case….”[167]Section 26 of the Act provides: “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B………. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are…disability…[and] Sex”.[168]Section 39 of the Act provides: “39 Employees and applicants …. (2) An employer(a) (A) must not discriminate against a person(b) (B) – ……..(c) by dismissing B(d) by subjecting B to any other detriment…..”[169]Section 42 of the Act provides: “42 Identity of employer (1) For the purposes of this Part, holding the office of constable is to be treated as employment— (a) by the chief officer, in respect of any act done by the chief officer in relation to a constable or appointment to the office of constable;….”[170]Section 123 of the Act provides “123 Time limits (1) Subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable……. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[171]Section 136 of the Act provides: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.”[172]Section 212 of the Act defines “substantial” as “more than minor or trivial.”[173]The provisions of the Act are construed against the terms of the Equal Treatment Framework Directive 2000/78/EC. Its terms include Article 5 as to the taking of “appropriate measures, where needed in a particular case”, for a disabled person, “unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”[174]The Directive is assimilated law by the Retained EU Law (Revocation and Retention) Act 2023. (ii) Case law (a) Direct discrimination[175]The basic question in a direct discrimination case is: what are the grounds or reasons for the treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagarajan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagarajan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15.[176]Further guidance was given in Amnesty, in which the then President of the EAT explained the test in the following way: ''… The basic question in direct discrimination case is what is or are the “ground” or “grounds” for the treatment complained of. …..… In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself…… In other cases—of which Nagarajan is an example—the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant … The distinctions involved may seem subtle, but they are real … There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is—necessarily—what was the ground of the treatment complained of (or—if you prefer—the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.''[177]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions referred to further below) – as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377. Less Favourable Treatment[178]In Glasgow City Council v Zafar [1998] IRLR 36, a House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. The claimant must show less favourable treatment, one of whose effective causes was the protected characteristic relied on. Comparator[179]In Shamoon v Chief Constable of the RUC [2003] IRLR 285, also a House of Lords authority, Lord Nicholls said that a tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.[180]The comparator, where needed, requires to be a person who does not have the protected characteristic but otherwise there are no material differences between that person and the claimant. Guidance was given in Balamoody v Nursing and Midwifery Council [2002] ICR 646, in the Court of Appeal.[181]A comparator who does not meet the test in section 23 may nevertheless be relevant to provide evidence as to how a hypothetical comparator would be treated, as addressed in Central Manchester University Hospitals NHS Foundation Trust v Browne UKEAT/0294/11, and Watt (formerly Carter) v Ahsan [2008] IRLR 243. Such a person is often called an evidential comparator.[182]The issue of a comparator was addressed by the EAT in Jones v Secretary of State for Health and Social Care [2025] EAT 76.[183]The EHRC Code of Practice on Employment provides, at paragraph 3.28: “Another way of looking at this is to ask, 'But for the relevant protected characteristic, would the claimant have been treated in that way?'” Substantial, not the only or main, reason[184]In Owen and Briggs v Jones [1981] ICR 618 it was held that the protected characteristic would suffice for the claim if it was a “substantial reason” for the decision. In O’Neill v Governors of Thomas More School [1997] ICR 33 it was held that the protected characteristic needed to be a cause of the decision, but did not need to be the only or a main cause. In Igen v Wong [2005] IRLR 258 the test was refined further such that part of the reasoning that was more than a trivial part of it could suffice in this context: it referred to the following quotation from Nagarajan: “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”[185]The Court considered arguments as to whether an alternative wording of no discrimination whatsoever was more appropriate, and the wording of EU Directives. It concluded as follows: “In any event we doubt if Lord Nicholls' wording is in substance different from the 'no discrimination whatsoever' formula. A 'significant' influence is an influence which is more than trivial.”[186]The law was summarised in JP Morgan Europe Limited v Chweidan [2011] IRLR 673, heard in the Court of Appeal. Lord Justice Elias said the following (in a case which concerned the protected characteristic of disability): “5 Direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant's disability. In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment. If it is a proscribed reason, such as in this case disability, then in practice it will be less favourable treatment than would have been meted out to someone without the proscribed characteristic: see the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 8– 12. That is how the tribunal approached the issue of direct discrimination in this case. In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, ie if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason”. (b) Indirect discrimination[187]Lady Hale in the Supreme Court gave the following general guidance in R (On the application of E) v Governing Body of Jewish Free School [2010] IRLR 136: “Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.”[188]The same principle applies for other protected characteristics. Provision, criterion or practice[189]The provision, criterion or practice (PCP) applied by the employer requires to be specified. It is not defined in the Act. In case law in relation to the predecessor provisions of the 2010 Act the courts made clear that it should be widely construed. In Hampson v Department of Education and Science [1989] ICR 179 it was held that any test or yardstick applied by the employer was included in the definition. Guidance on what was a PCP was given in Essop v Home Office [2017] IRLR 558.[190]In Ishola v Transport for London [2020] IRLR 368 Lady Justice Simler, as she then was, considered the context of the words PCP and concluded “In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that ‘practice’ here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or ‘practice’ to have been applied to anyone else in fact. Something may be a practice or done ‘in practice’ if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”[191]The Code states at paragraph 4.5 as follows: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase ‘provision, criterion or practice’ is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.” Disproportionate impact[192]There must be evidence that shows the PCP creates or would create a disproportionate impact upon the relevant group, with the group often also referred to as a pool, and the disproportionate impact often being referred to as group disadvantage. The first step is to identify the appropriate pool of employees (Barry v Midland Bank plc [1999] ICR 319). In Allonby v Accrington and Rossendale College [2001] EWCA Civ 52 it was held that identifying the pool was not a matter of discretion or of fact-finding but of logic.[193]Although it is for the claimant to identify the PCP which she seeks to impugn it is for the Tribunal to determine the appropriate pool, and there may be - depending on the PCP in issue - a range of logical options open to it. The EAT so held in Ministry of Defence v DeBique [2010] IRLR 471: “In reaching their decision as to the appropriate pool in a particular case, a tribunal should undoubtedly consider the position in respect of different pools within the range of decisions open to them; but they are entitled to select from that range the pool which they consider will realistically and effectively test the particular allegation before them.”[194]The Court of Appeal held in Grundy v British Airways plc [2008] IRLR 74 that “Provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen.”[195]In Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] ICR 640 Lady Hale explained one of the salient features of the legislation as follows: “Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.”[196]The requirement for group disadvantage was thus that “many “within that group cannot meet a requirement from a PCP. She expanded on that as follows: “There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. The later definitions cannot have restricted the original definitions, which referred to the proportion who could, or could not, meet the requirement. Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory….”[197]As to proving disadvantage it was held that: “it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence.” The extent of disadvantage was addressed as follows “At the level of the group the disadvantage may be no more than likely but that does not make it a different disadvantage from the actual disadvantage suffered by those who are affected. The difference is between potential and actual disadvantage but the disadvantage is the same.”[198]On the nature of the pool for group disadvantage it was held that: “. … all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it. This makes sense. It also matches the language of s.19(2)(b) which requires that “it” – ie the PCP in question – puts or would put persons with whom B shares the characteristic at a particular disadvantage compared with persons with whom B does not share it. There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.”[199]How many would be disadvantaged within a group had earlier been addressed by the Court of Appeal in Eweida v British Airways plc [2010] ICR 890. It held a narrow view would be other uniformed BA staff who wished to wear a cross in a visible place; a wide view would operate where evidence showed that there were others in society who shared the material religion or belief and so would suffer a disadvantage were they to be BA employees; an intermediate view would operate by assuming that the workforce included such others and asking if they would be adversely affected by the relevant requirements. The court held that all three approaches have difficulties.[200]In Games v University of Kent UKEAT/0524/13 it was held that statistical information was not necessary: if it existed it would be “important material” but that “the claimant’s own evidence or evidence of others in the group or both might suffice….. [and] may be able to provide compelling evidence of disadvantage even if there are no statistics at all.”[201]There may however be a need for evidence where the issue is in dispute, dependent on what that dispute is. That was addressed by the EAT in Page v NHS Trust Development Authority UKEAT/0183/18, which was appealed to the Court of Appeal but not on this point.[202]The Court of Appeal held that a sole holder of a belief may not be sufficient to establish group disadvantage in Mba v Mayor and Burgesses of the London Borough of Merton [2014] IRLR 145. That was followed by the EAT in Trayhorn v Secretary of State for Justice [2018] IRLR 502 which held that “the threshold of s 19(2)(b) is not a high one. However, as Lord Justice Elias held in Mba, it is there and cannot be ignored. Whether it has been surmounted is a question of fact in each case.”[203]In Essop the Supreme Court made the following comments: “A third salient feature is that the reasons why one group may find it harder to comply with the PCP than others are many and various … They could be social, such as the expectation that women will bear the greater responsibility for caring for the home and family than will men …”[204]In Cumming v British Airways plc UKEAT/0337/19 that quotation was referred to in relation to sufficiency of evidence as follows: “there may be an argument that Lady Hale’s general proposition was sufficient to establish the case along with the statistics relating to the whole of the crew or that in any event there was no reason to think that the proportion of men in the crew with childcare responsibilities differed materially from the proportion of females with such responsibilities”.[205]In Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] ICR 1699 the EAT stated the following: “. ... particular disadvantage can be established in one of several ways, including the following:a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;c. The disadvantage may be inherent in the PCP in question; and/ord. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken.”[206]The limitations to taking judicial notice were explained as follows: “A matter in respect of which judicial notice may be taken, by its very nature, ought to be one that is uncontroversial. The fact that it is not might cast doubt on whether it really is so notorious and wellestablished that it can be accepted without further inquiry.”[207]In assessing the impact of the PCP upon the affected group, it is necessary for the Tribunal to ascertain both the quantitative and the qualitative effect: Jones v University of Manchester [1993] ICR 474. In so doing, the individual situation of the claimant may provide relevant evidence, although (as for the determination of particular disadvantage): “... proper attention [must be] paid to the question of how typical they are of any other men and women adversely affected by the requirement.”[208]These are matters also referred to in the Code at paragraphs 4.15 – 4.22. Paragraph 4.19 provides that once the pool has been identified the question for the Tribunal is whether there is a particular disadvantage to people sharing the relevant protected characteristic; that means that a comparison must be made between the impact of the PCP on the people within the pool with, and without, the protected characteristic. The particular disadvantage can be shown by direct evidence, inference from primary fact, statistical materials, or by judicial knowledge (the term normally used in Scotland which is the equivalent of what is known as judicial notice in England and Wales and is addressed further below). At paragraph 4.21 it is said that “Whether a difference is significant will depend on the context, such as the size of the pool and the numbers behind the proportions. It is not necessary to show that the majority of those within the pool who share the protected characteristic are placed at a disadvantage.” Objective justification[209]The statutory test for justification requires to be read in accordance with case law from the Court of Justice of the European Union. In Homer v Chief Constable of West Yorkshire Police and West Yorkshire Police Authority [2012] IRLR 601 decided in the Supreme Court Lady Hale said: “Although the [UK legislation] refers only to a 'proportionate means of achieving a legitimate aim', this has to be read in the light of the Directive which it implements”. She added in summary that “to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”[210]It is for the employer to establish the defence on the balance of probabilities. Evidence is not always required. The EAT in Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v Homer [2009] ICR 223 (considered on other grounds by the Supreme Court [2012] IRLR 601) stated: “… it is an error to think that concrete evidence is always necessary to establish justification, and the ACAS guidance should not be read in that way. Justification may be established in an appropriate case by reasoned and rational judgment. What is impermissible is a justification based simply on subjective impression or stereotyped assumptions”.[211]Where the PCP is a general policy which has been adopted in order to achieve a legitimate aim, it is the proportionality of the policy in terms of the balance between the importance of the aim and the impact on the class who will be put at a disadvantage by it which must be considered rather than the impact on the individual. In Seldon v Clarkson Wright and Jakes the EAT said: 'Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.' This was approved by the Court of Appeal and by the Supreme Court [2012] IRLR 590, where Lady Hale commented on the passage just quoted: “Thus the EAT would not rule out the possibility that there may be cases where the particular application of the rule has to be justified, but they suspected that these would be extremely rare. I would accept that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it.”[212]The issue of objective justification need not have been considered by the employer at the time of the dispute arising. In Cadman v Health and Safety Executive [2004] IRLR 971 the Court of Appeal held that there is no rule of law that the justification must have consciously and contemporaneously featured in the decision-making processes of the employer. But it may be more difficult for an employer to discharge the burden of establishing justification where there is no evidence to show that it ever applied its mind to the question of whether there was another way of achieving the legitimate aim that would avoid or diminish the disparate adverse impact on the protected group: Hockenjos v Secretary of State for Social Security [2005] IRLR 471.[213]In MacCulloch v ICI [2008] IRLR 846 the EAT set out four principles, later approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941,(i) The means to achieve the aim must correspond to a real need for the organisation(ii) They must be appropriate with a view to achieving the objective(iii) They must be reasonably necessary to achieve that end(iv) The Tribunal is to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and make its own assessment of whether the former outweigh the latter.[214]The Supreme Court held in Essop that there can be no finding of indirect discrimination until all four elements of the definition are met. Lady Hale held: “some reluctance to reach this point can be detected in the cases, yet there should not be.…The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question – fitness levels in fire-fighters or policemen spring to mind.”[215]In applying the test of reasonable necessity there may be more than one option which would constitute a proportionate means of achieving the legitimate aim in question - Health and Safety Executive v Cadman [2005] ICR 1546. An employer is not required to prove there was no other way of achieving its objectives - Hardys & Hansons plc v Lax [2005] IRLR 726 - but in considering the needs of the respondent the Tribunal must make its own judgement upon “a fair and detailed analysis of the working practices and business considerations involved”.[216]Care must be taken by tribunals not to reject a justification case on the basis that a respondent should have pursued a different aim which would have had a less discriminatory impact: Harrod v Chief Constable of West Midlands Police [2017] ICR 869.[217]In Ladele the EAT and Court of Appeal addressed the issue of proportionality having identified the legitimate aim in the case. The Court of Appeal endorsed the EAT decision, quoting from it and then commenting as follows: “Once it is accepted that the aim of providing the service on a nondiscriminatory basis was legitimate—and in truth it was bound to be—then … it must follow that [Islington] was entitled to require all registrars to perform the full range of services.”[218]As the EAT had stated, permitting the claimant to refuse to perform civil partnerships “would necessarily undermine the council’s clear commitment to” what the appeal tribunal described as their “nondiscriminatory objectives which [they] thought it important to espouse both to their staff and the wider community”.[219]Ultimately this along with other claims was considered by the European Court of Human Rights, reported as Eweida, Ladele, McFarlane and Chaplin v The United Kingdom [2013] IRLR 231 in which it was held that both Ms Ladele who objected to officiating at same-sex civil partnership ceremonies, and Mr McFarlane who objected to providing psycho-sexual counselling to same-sex couples, based their objections on their Christian beliefs. Those manifestations were to be protected unless interference was necessary in a democratic society for the protection of the rights and freedoms of others. The equal opportunities policies of the employers in these cases were designed to ensure the provision of services without discrimination—including on the ground of sexual orientation. The state had not been found to have failed to protect the art 9 rights of either of these applicants in seeking to strike a balance between the rights of the two employees to manifest their religious belief and the employer's interest in securing the rights of others.[220]Proportionality is considered at paragraphs 4.30 – 4.32 of the Code. Relationship with direct discrimination[221]In R(Coll) v Secretary of State for Justice [2017] UKSC 40 it was held that direct discrimination and indirect discrimination are essentially mutually exclusive concepts, such that if there is direct discrimination found a finding of indirect discrimination cannot be made. (c) Reasonable adjustments Provision, criterion or practice[222]The provision, criterion or practice (PCP) applied by the employer requires to be specified. What a PCP is is not defined in the Act. In case law in relation to the predecessor provisions of the 2010 Act the courts made clear that it should be widely construed. In Hampson v Department of Education and Science [1989] ICR 179 it was held that any test or yardstick applied by the employer was included in the definition. Guidance was given in Essop v Home Office [2017] IRLR 558.[223]In Ishola v Transport for London [2020] IRLR 368 Lady Justice Simler, as she then was, considered the context of the words PCP and concluded “In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”[224]The Equality and Human Rights Commission Code on Employment at paragraph 4. 5 states as follows: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase 'provision, criterion or practice' is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a 'one-off' or discretionary decision.”[225]What a provision, criterion or practice can be was further considered in Carrera v United First Partners Research UKEAT/0266/15. A liberal rather than an overly technical approach should be adopted. Substantial disadvantage[226]Guidance is given in Sheikholeslami v University of Edinburgh [2018] IRLR 1090. Substantial has the section 212 meaning. It is applied to disabled persons, and the claimant herself, separately. The former is measured on an objective basis by comparison with what the position would be if the disabled person did not have a disability. What are reasonable adjustments[227]Guidance on a claim as to reasonable adjustments was provided by the EAT in Cosgrove v Caesar and Howie [2001] IRLR 653, Royal Bank of Scotland v Ashton [2011] ICR 632, and by the Court of Appeal in Newham Sixth Form College v Saunders [2014] EWCA Civ 734, and Smith v Churchill’s Stair Lifts plc [2005] EWCA Civ 1220. The reasonableness of a step for these purposes is assessed objectively, as confirmed in Smith v Churchill. The need to focus on the practical result of the step proposed was referred to in Ashton. These cases were in relation to the predecessor provision in the Disability Act 1995. Their application to the 2010 Act was confirmed by the EAT in Muzi-Mabaso v HMRC UKEAT/0353/14.[228]The Court in Saunders stated that: “the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP.”[229]In Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 the EAT held that the failure to carry out an assessment did not of itself constitute a failure to make a reasonable adjustment. If the employer makes such adjustment as in fact is reasonable, then whether that is achieved by chance or even in ignorance of the relevant legal duty, there is no breach of the law even though there was no assessment.[230]The duty to make reasonable adjustments does not therefore extend to a duty to carry out any kind of assessment of what adjustments ought reasonably to be made. A failure to carry out such an assessment may nevertheless be of evidential significance. In Project Management Institute v Latif [2007] IRLR 579 the EAT stated that: “…We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate…… a failure to carry out a proper assessment, although it is not a breach of the duty of reasonable adjustment in its own right, may well result in a respondent failing to make adjustments which he ought reasonably to make. A respondent, be it an employer or qualifying body, cannot rely on that omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified….. We accept, however, that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing. Indeed, in certain circumstances we think it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented. To take a simple example, where a code provides an example of an adjustment which on the face of it appears appropriate, that is something the tribunal should take into account. We think that it would be perfectly proper for a tribunal to expect an employer to show why it would not have been reasonable to make that adjustment in the particular case, although of course the employer must have a proper opportunity of dealing with the matter.”[231]An adjustment is reasonable if there is a chance that it alleviates the substantial disadvantage – South Staffordshire and Shropshire Helathcare NHS Foundation Trust v Billingsley UKEAT/0341/15. The test was considered further in Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075, London Underground v O'Sullivan UKEAT/0355/13 and more recently in Hindmarch v North- East Ambulance NHS Trust [2025] IRLR 672.[232]The Code of Practice includes the following:6.1 “The duty to make adjustments requires employers to take such steps as it is reasonable to have to take, in all the circumstances of the case, in order to make adjustments. The Act does not specify any particular factors that should be taken into account. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case.6.2 There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable.6.3 Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make.6.4 Many adjustments do not involve making physical changes to premises. However, where such changes need to be made and an employer occupies premises under a lease or other binding obligation, the employer may have to obtain consent to the making of reasonable adjustments. These provisions are explained in Appendix 3.6.5 If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise.6.6 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:• whether taking any particular steps would be effective in preventing the substantial disadvantage;• the practicability of the step;• the financial and other costs of making the adjustment and the extent of any disruption caused;• the extent of the employer’s financial or other resources;• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and• the type and size of the employer.6.7 Ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case.” (c) Harassment General[233]Guidance was given by the then Mr Justice Underhill in Richmond Pharmacology v Dhaliwal [2009] IRLR 336, in which he said that it is a 'healthy discipline' for a tribunal to go specifically through each requirement of the statutory wording, pointing out particularly that(1) the phrase 'purpose or effect' clearly enacts alternatives;(2) the proviso in sub-s (2) is there to deal with unreasonable proneness to offence (and may be affected by the respondent's purpose, even though that is not per se a requirement);(3) 'on grounds of' is a key element which may or may not necessitate consideration of the respondent's mental processes (and it may exclude a case where offence is caused but for some other reason);(4) while harassment is important and not to be underestimated, it is 'also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase'. Environment[234]The extent of the protection conferred by the section was examined by the Court of Appeal in Land Registry v Grant [2011] IRLR 748 which focused on the words “intimidating, hostile, degrading, humiliating and offensive” and said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upset being caught”.[235]There can be harassment under this provision arising from an isolated incident; for an example, see Lindsay v London School of Economics [2014] IRLR 218. It can arise from inaction, as well as a specific action – Conteh v People’s Parking [2011] ICR 341.[236]In Weeks v Newham College of Further Education UKEAT/0630/11 the EAT stated the following: “A decision of fact in a context such as this must be sensitive to all the circumstances. Context is all-important. ……..We would urge caution for a tribunal in placing too much weight upon timing. Where conduct is directed toward the sex of the victim, it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The fact of there being no immediate complaint cannot prevent a complaint being justified, but equally we cannot say that it is a factor that a tribunal is not entitled to consider as part and parcel of the overall circumstances that it has to gauge….. However, it must be remembered that the word is “environment”. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration.” Related to[237]The test for “related to” is different to that for whether conduct is “because of” a characteristic. It is a broader and more easily satisfied test – Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and another EAT 0039/19. The fact that the claimant considers the conduct related to a particular characteristic is not necessarily determinative, nor is a finding about the motivation of the alleged harasser. There must be some basis from the facts found which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in the manner alleged in the claim. In that case the Employment Appeal Tribunal held it is a matter for the Tribunal to determine making a finding of fact drawing on all the evidence before it. There must be some feature of the factual matrix identified by the Tribunal which leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal should articulate clearly what feature of the evidence leads it to that conclusion. The Tribunal should consider the matter objectively.[238]Warby v Wunda Group Plc EAT 0434/11 held that the conduct should be viewed in context in assessing whether the conduct is related to the protected characteristic. The then President of the Employment Appeal Tribunal, Mr Justice Langstaff, upheld a Tribunal’s decision that an employee accused by her superior of having lied about a miscarriage was not subjected to conduct “related to” her sex within the meaning of the sex discrimination provisions then in force. Langstaff P held that context was important and that the tribunal had been entitled to find that the accusation was made in the context of a dispute over a work matter, about which the employer believed that the employee was lying. Thus, the conduct complained of was an emphatic complaint about alleged lying; it was not made because of the employee’s sex, because she was pregnant or because she had had a miscarriage. While that case considered the predecessor legislation, the issue was whether the conduct was “related to” the protected characteristic.[239]In Kelly v Covance Laboratories Ltd [2016] IRLR 338 an instruction not to speak Russian at work, so that any conversations could be understood by English speaking managers was not related to race or national origins, even though it potentially could have been. The conduct was because the employer was suspicious about what was being said and could not understand. Viewed in the context of the company’s business and risks the employer’s explanation for the conduct was accepted and the conduct was not related to race or national origins.[240]In UNITE the Union v Nailard [2018] IRLR 730 the Tribunal had held that a failure to address a sexual harassment complaint made against elected officials of the union could amount to harassment related to sex “because of the background of harassment related to sex”. The Court of Appeal considered that went too far. There was a reminder that Tribunals should focus on the conduct of the person who carried out the act and determine whether that conduct is related to the protected characteristic (not whether the conduct of someone else or some other conduct is related to the protected characteristic).[241]Para 7.9 of the Equality and Human Rights Commission Code of Practice: Employment states that the provisions in section 26 should be given 'a broad meaning in that the conduct does not have to be because of the protected characteristic'. This was applied in Hartley v Foreign and Commonwealth Office UKEAT/0033/15 where it was held that whether there is harassment must be considered in the light of all the circumstances; in particular, where it is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[242]At paragraph 7.10 of the Code the breadth of the words “related to” is noted and some examples are provided. It gives the example of a female worker who has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex. At paragraph 7.11 the Code states that in the examples there was “a connection with the protected characteristic”.[243]The question of whether the conduct in question “relates to” the protected characteristic requires a consideration of the mental processes of the putative harasser (GMB v Henderson [2017] IRLR 340) bearing in mind that there should be an intense focus on the context in which the words or behaviour took place (Bakkali v Greater Manchester [2018] IRLR 906). In Bakkali the question was whether a comment as to whether an individual was said to be still promoting ISIS/Daesh was related to race. The Tribunal found it was not as it related to a previous conversation. The Employment Appeal Tribunal emphasised that context is important and the words used must be seen in context. In considering whether the conduct is related to the protected characteristic there should be an intense focus on the context of the offending words or behaviour. The mental processes of the perpetrator are relevant in assessing the issue.[244]In Raj v Capita 2019 UKEAT 0074/2019 the Employment Appeal Tribunal upheld a Tribunal which had found that the massage at his desk by a manager was not conduct related to sex. The conduct was misguided encouragement by a manager. It was an isolated incident and the context was key: a standing manager over a sitting team member in a gender neutral part within an open plan office. In that case the Tribunal did not expressly consider the burden of proof provisions but had found that the conduct was in no sense whatsoever related to sex.[245]Further guidance in relation to “related” to was given in Carozzi v University of Herfortshire [2024] EAT 169 in which it is stated that: “the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”.[246]In Windsor Clive v Forsbrook [2024] EAT 183 it was said that: “the concept cannot be so broad as to be meaningless. I am of the view that, as Ms Roddick argues, the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary, therefore, for an ET to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.” Reasonable[247]In Pemberton v Inwood [2018] IRLR 542 the claimant alleged direct discrimination arising from the revocation of his permission to officiate ('PTO') as a Church of England priest and refusal to grant him an Extra Parochial Ministry Licence ('EPML') because he had entered into a samesex marriage, contrary to the doctrines of the Church. The Tribunal held that the claimant’s view was not reasonable as he had entered into his marriage knowing it was considered contrary to Church doctrine and would have the consequence that his PTO would be revoked and an EPML refused. It also held that the enforcement of those decisions involved no aggravating features. The Court of Appeal (approving the decision of the EAT) upheld the tribunal's decision. It held that the claimant's understanding of the position formed part of the relevant context and the employment tribunal had been entitled to take it into account when determining whether his response was reasonable. More specifically, given that the conduct in question was covered by the defence permitted by the Equality Act 2010, Schedule 9, paragraph 2, if there were no aggravating factors, it could not be unreasonable for that conduct to have the effect proscribed in s 26(1)(b): 'to conclude otherwise would make a nonsense of providing the defence to Schedule 9 in the first place'.[248]In Driskel v Peninsula Business Services Ltd [2000] IRLR 151 the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered and that throughout the tribunal should remain conscious of the burden and standard of proof.”[249]The Tribunal is required to determine both the actual effect on the particular individual complainant and the question whether that was reasonable in the circumstances of the case - Fidessa plc v Lancaster UKEAT/0093/16 in which an appeal was allowed on the basis that the employment tribunal, whilst finding that it would have been reasonable for the particular conduct to have had the necessary effect, had failed to make a finding as to what the effect on the claimant had been.[250]In Ali v Heathrow Express Operating Co Ltd [2022] IRLR 558 as part of a security exercise at Heathrow a suspicious package was placed in a public part of the airport to see if it would be discovered by staff. It had wires sticking out of it and written on it the phrase 'Allahu Akbar' in Arabic. The claimant, a Muslim, learned about it in an email giving the results of the security exercise. The Tribunal said that in the circumstances it had not been reasonable to take the offence that he had. Those circumstances included in particular that the employer had been carrying out the security exercise in the light of recent terrorist incidents in which the phrase had been used and the claimant should have appreciated this. The EAT held that the ET had been within its discretion in reaching this decision. EHRC Code of Practice: Employment[251]The Code (at paragraph 8.20) gives the example of a club manager at a meeting making derogatory comments and jokes about women to a mixed sex audience. It is not that person’s intention to offend or humiliate anyone, however the contact may amount to harassment if the effect of it is to create a humiliating or offensive environment for a man or woman in the audience. (f) Detriment[252]The key question is - “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” derived from Shamoon. The House of Lords confirmed the position in Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841. It was stated that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances. It is to be interpreted widely in this context. It is not a wholly objective test and it is enough that a reasonable worker might take such a view, even if not all reasonable workers would have done so.– Warburton v Chief Constable of Northamptonshire Police EA-2020-000376 and EA-2020-001077 (g) Burden of proof[253]There is a normally two-stage process in applying the burden of proof provisions in discrimination cases as explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish a first base or prima facie case by reference to the facts made out. If she does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is held to be inadequate, it is necessary for the tribunal to conclude that the claimant’s allegation in this regard is to be upheld. If the explanation is adequate, that conclusion is not reached. It may not always be necessary to follow that two stage process as explained in Laing v Manchester City Council [2006] IRLR 748.[254]Discrimination may be inferred if there is no explanation for unreasonable behaviour (The Law Society v Bahl [2003] IRLR 640 (EAT), upheld by the Court of Appeal at [2004] IRLR 799.)[255]In Ayodele v Citylink Ltd [2018] ICR 748, the Court of Appeal rejected an argument that the Igen and Madarassy authorities could no longer apply as a matter of European law, and held that the onus did remain with the claimant at the first stage. That it was for the claimant to establish primary facts from which the inference of discrimination could properly be drawn, at the first stage, was then confirmed in Royal Mail Group Ltd v Efobi [2019] IRLR 352 at the Court of Appeal, and upheld at the Supreme Court, reported at [2021] IRLR 811. The Supreme Court said the following in relation to the terms of section 136(2): “s 136(2) requires the employment tribunal to consider all the evidence from all sources, not just the claimant's evidence, so as to decide whether or not 'there are facts etc'. I agree that this is what s 136(2) requires. I do not, however, accept that this has made a substantive change in the law. The reason is that this was already what the old provisions required as they had been interpreted by the courts. As discussed at paras [20]–[23] above, it had been authoritatively decided that, although the language of the old provisions referred to the complainant having to prove facts and did not mention evidence from the respondent, the tribunal was not limited at the first stage to considering evidence adduced by the claimant; nor indeed was the tribunal limited when considering the respondent's evidence to taking account of matters which assisted the claimant. The tribunal was also entitled to take into account evidence adduced by the respondent which went to rebut or undermine the claimant's case.”[256]The Court said the following in relation to the first stage, at which there is an assessment of whether there are facts established in the evidence from which a finding of discrimination might be made: “At the first stage the tribunal must consider what inferences can be drawn in the absence of any explanation for the treatment complained of. That is what the legislation requires. Whether the employer has in fact offered an explanation and, if so, what that explanation is must therefore be left out of account.”[257]In Igen Ltd v Wong [2005] ICR 931 the Court of Appeal said the following in relation to the requirement on the respondent to discharge the burden of proof if a prima facie case was established, the second stage of the process if the burden of proof passes from the claimant to the respondent: “To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.”[258]The Tribunal must also consider the possibility of unconscious bias, as addressed in Geller v Yeshurun Hebrew Congregation [2016] ICR 1028. It was an issue addressed in Nagarajan.[259]The EAT gave general guidance on the shifting of the onus of proof in Field v Steve Pye and Co Ltd [2022] EAT 68 and very recently in Clifton Diocese v Parker [2026] EAT 68. (h) Jurisdiction[260]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur [1989] IRLR 387. The Court of Appeal has cautioned tribunals against applying the concepts of 'policy, rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner, [2003] IRLR 96). Only acts of discrimination can fall within conduct extending over a period for this purpose – South West Ambulance v King [2020] IRLR 168.[261]Whilst not a conclusive factor, that there are different individuals or protected characteristics or both can be relevant – Aziz v FDA [2010] EWCA Civ 304, Greco v General Physics UK Ltd EAT 01114/16 and Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40.[262]Where a claim is submitted out of time, there is no formal burden of proof for a claimant to show that it is just and equitable to allow it to be received is on the claimant, but there is a burden on a claimant to persuade the Tribunal to exercise its discretion (Polystar Plastic Ltd v Liepa [2023] EAT 100.[263]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 the Court of Appeal held: “First, it is plain from the language used (‘such other period as the employment tribunal thinks just and equitable’) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under s 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728, paras [30]-[32], [43], [48]; and Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para [75]. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[264]That was emphasised in Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23, which discouraged use of what has become known as the Keeble factors as a form of template for the exercise of discretion. Section 33 of the Act referred to is in any event not a part of the law of Scotland.[265]Some cases at the EAT held that even if the tribunal disbelieves the reason put forward by the claimant for delay it should still go on to consider any other potentially relevant factors such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, Pathan v South London Islamic Centre UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd UKEAT/0291/14.[266]The EAT decided that issue differently in Habinteg Housing Association Ltd v Holleran UKEAT/0274/14. There it was held, in brief summary, that a failure to provide a reasonable explanation for the delay in raising the claim was fatal to the issue of what was just and equitable.[267]In Rathakrishnan there was a review of authority on the issue of the just and equitable extension, as it is often called, including the Court of Appeal case of London Borough of Southwark v Afolabi [2003] IRLR 220, in which it was held that a tribunal is not required to go through the matters listed in s.33(3) of the Limitation Act, an English statute in the context of a personal injury claim, provided that no significant factor is omitted. There was also reference to Dale v British Coal Corporation [1992] 1 WLR 964, a personal injury claim, where it was held to be to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. The EAT concluded “What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] IRLR 69) involves a multi- factoral approach. No single factor is determinative.”[268]In Edomobi v La Retraite RC Girls School UKEAT/0180/16 a different division of the EAT (presided over by a different Judge) in effect preferred that approach, with the Judge adding that she did not “understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.”[269]In Wells Cathedral School Ltd (2) Mr M Stringer v(1) Mr M Souter(2) Ms K Leishman: EA-2020-000801 the EAT did not directly address those authorities but stated that, in relation to the issue of delay, “it is not always essential that the tribunal be satisfied that there is a particular reason that it would regard as a good reason”. A more recent authority from the EAT – Concentrix CVG Intelligent Contact Ltd v Obi [2022] EAT 149, supported that same conclusion, although that authority is another at the same level as those in the Habinteg line, such that it does not resolve the matter finally.[270]In Accurist Watches Ltd v Wadher UKEAT/0102/09 the EAT stated that, whilst it is good practice, in any case where findings of fact need to be made for the purpose of a discretionary decision, for the parties to adduce evidence in the form of a witness statement, with the possibility of crossexamination where appropriate, it was not an absolute requirement of the rules that evidence should be adduced in this form. A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[271]There is a further matter to consider, which is the effect of early conciliation on assessing when a claim was commenced. Before proceedings can be issued in an Employment Tribunal, prospective claimants must first contact ACAS and provide it with certain basic information to enable ACAS to explore the possibility of resolving the dispute by conciliation (Employment Tribunals Act 1996 section 18A(1)). Provisions as to the effect Early Conciliation has on timebar are found in Schedule 2 to the Enterprise and Regulatory Reform Act 2013, which creates section 140B of the 2010 Act. The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 give further detail as to early conciliation. The statutory provision provide in basic summary that within the period of three months from the act complained of, or the end of the period referred to in section 123 if relevant, EC must start, doing so then extends the period of time bar during EC itself, and time is then extended by a further month from the date of the certificate issued at the conclusion of conciliation within which the presentation of the Claim Form to the Tribunal must take place. If EC is not timeously commenced that extension of time is inapplicable, but there remains the possibility of a just and equitable extension where it has taken place albeit late. Observations on the evidence[272]The Tribunal’s assessment of each of the witnesses who gave evidence is as follows:[273]The claimant was clearly seeking to give honest evidence. It is also clear that she genuinely believes firstly that she did not have adequate support from her supervisors, secondly that Viper operators did not give her the assistance she should have received, and thirdly that had she been male her treatment in these and other regards would have been different.[274]Some of her evidence however was not I considered to be regarded as reliable. Some of the allegations she made were without proper foundation. She made various accusations of lying by some officers, but on examination there was no lying, simply a different recollection or explanation of background circumstances. She alleged in an email that if the Federation did not support her by funding an opinion from counsel they would be supporting bullying and intimidation. Whilst that was the claimant’s genuine view it is not a reasonable one to hold. There may be many reasons why an organisation such as the Federation chooses not to fund something. Funding for any organisation is not infinite, as a matter of judicial knowledge. The application forms that the claimant completed and which were before me set out processes and procedures to follow to seek assistance, and not being given what she sought does not lead to an inference of the kind the claimant alleged.[275]Whilst the claims made included those for sex discrimination both direct and indirect, and harassment related to sex, it is relevant that when making each of two grievances in writing the question of her sex was not highlighted. At highest for the claimant it was referred to somewhat obliquely.[276]Some of the claimant’s evidence on matters of detail was I consider not correct. In cross examination she denied that she had applied for ill health retirement, but it was put to her that in one contemporaneous document that is what had been recorded. She stated that it was wrong. Yet she had signed consent forms that appeared to me to be ones for the purpose of an ill health retirement application, also consistent with the document referred to. The Federation supported her application. Whilst this further document was not specifically put to her, the documents include a letter to a Ms Helliker on 6 May 2023 stating that “I have requested ill health retirement with a full service pension.” It seems to me that that letter does support the document relied on in cross examination, together with the consent document, and that the claimant’s evidence on that point is not correct, and that she had applied for ill health retirement.[277]On the issue of timebar, some of the claimant’s answers to questions were in my opinion less than direct and candid. It appears clear to me from the written record that the claimant had discussions with at least two solicitors, one who may have been concentrating on advice as to a potential personal injury claim from Digby Brown, but the other noted in the documentation to the claimant as being an employment law specialist.[278]The claimant’s evidence to the effect that she knew nothing about claims of discrimination and what to do about them in respect of making a formal claim to this Tribunal is not I consider consistent with some of the written documentation before me, some which she had received, and some she authored for example her message to the Federation on 21 September 2021. She had advice from her Federation as well as the solicitors referred to, and it did not appear that any of them were clear as to whether the issues that the claimant wished to raise were ones of personal injury in the context of a civil claim for damages in court, or as to matters of discrimination.[279]Also to be taken into account is her disability. I have no doubt but that the claimant did suffer from depression and anxiety from and after the latter months of 2019, has received medication for that, and that her symptoms from time to time were severe. Sadly, she spoke about having suicidal ideation at times. Her distress was evident on some occasions when she gave evidence, and her evidence was supported by that of her husband. The impression I formed in this regard was supported by evidence in the ill health retiral process and the report from Dr Cumming in particular. Whilst the authors of those reports were not called there was no particular challenge to the claimant’s evidence in relation to her health in cross examination.[280]I am also in no doubt that the claimant was genuine when on many occasions in cross examination she said that she could not recall a particular detail. Given the passage of time from the matters involved, and her status as a disabled person, not recalling them is entirely understandable. But it does mean that her evidence is not as reliable as it would be had she been able to recall such details, and it is one of the factors to take into account when assessing jurisdiction.[281]As a matter of detail the claimant was permitted to be recalled to give additional evidence, of consent of the respondent in principle. One aspect of that recall was disputed, and for reasons given orally I allowed her to do so.[282]Mr Sandever was a credible and reliable witness. He gave evidence as to a deterioration in his wife’s mental health in the period 2019 – 2023. He also commented on the meeting with Sergeant McAlpine, and to a limited extent about discussions with the Federation, but his knowledge and memory of those was limited. He gave evidence of matters related to injuries he had sustained on duty.[283]Mr Card was a credible and generally reliable witness. He expressed his own views on matters related to the running of Police Scotland, which although genuinely held were based in part on his own experience of ill health retiral after suffering a head injury when effecting an arrest. He was a Police Constable then an acting Sergeant for three years, and I preferred evidence from more senior and serving officers where that conflicted with his own. His evidence did however contradict the suggestion that the reason officers did not act on requests from the claimant to act as Viper operators was that they came from a woman. That was also his own experience.[284]Mr Beeston whose evidence was interposed as noted above, was I considered a credible and (subject to what follows as to recall of some detail) a reliable witness. He gave his evidence clearly and candidly. He forcefully denied the suggestion that he had not been supportive of the claimant. He pointed to a number of steps taken by him and others to seek to improve the situation in relation to Viper work. It seemed to me that his efforts in that regard were genuine ones, and improved albeit did not wholly resolve matters. The referral to OH on 24 September 2020 noted steps being taken, and they included new proposals. Shortly before the claimant returned to work in November 2020 he emailed PC Macdonald referring to having something positive to say to the claimant. In my view these are actions of a line manager attempting to support and assist. He rejected the suggestion that sex was a factor in matters in a manner I considered convincing, although that is far from determinative of those issues. It is unusual for a person in his position to put in an OH referral not only facts as they existed but plans for the future, and it seemed to me that he was seeking to move matters towards the claimant being assessed as fit to work rather than not. But overall, I did not consider that that was evidence of an attitude against the claimant because of her sex. In relation to disability I address matters further below. He was also a witness who was not able to recall some of the details asked of him. I was satisfied that that was because of the passage of time.[285]Mr Baird was I consider a credible and reliable witness. He did not agree with the suggestion that a PC under one Sergeant could not be given an instruction by another Sergeant, in at least some circumstances, and with hindsight accepted that it would have been better had formal orders been given to Viper Operators by those able to do so. He was critical of officers who gave what appeared to him in some cases insufficient reasons to the claimant for not undertaking a Viper duty, and suggested that the Service had not supported her as it should have. He did not consider that the claimant’s sex had been a factor in declinature of Viper requests. He ceased to be the Viper Lead towards the end of 2017, and retired from the Police Service in February 2026.[286]Mr Bisset was I consider a credible witness. He sent in error a message to the claimant intended for his colleague Mr Ross, in which the claimant was referred to with a suggestion that she was seeking to avoid duty at the Belladrum festival. I considered that his explanation for that, and his use of the pronoun for her, was to be accepted. The claimant argued that he had demonstrated sexist attitudes towards the claimant in an email of 27 July 2018 sent to the claimant in error. I did not consider that there was anything in that email indicative of a sexist attitude. It was suggested that his not recalling what Inspector Hill had said to him about the meeting on 13 January 2022 (the submission referred to 23 January 2023 but that is clearly an error) also demonstrated that. I consider that it did not. It was his not remembering a matter that happened a long time previously in my view. To that extent his evidence was not fully reliable, as I accepted Inspector Hill’s evidence.[287]Mr Ross was I consider a credible and reliable witness. His role as line manager was for a reasonably limited period from about April to December 2019, and two matters arose during it, on his evidence. I consider that from his evidence overall, and his obvious desire to be accurate when doing so, that he is to be preferred over the claimant over whether he discussed matters with her after her email to him in May 2019, and also later in October 2019, although some of the detail he could not recall with the passage of time. After the former he noted that the list of reasons the claimant had given came without details such as date, person or context, and it makes sense that he spoke to her and said something to the effect that in future she should raise it with him at the time it occurred where she was not satisfied that a good reason to refuse a Viper request existed. He had said that he would consider a solution, to paraphrase, and there was no suggestion of the claimant raising with him a failure to come back to her. On balance it appears to me more likely that he did. I also accepted his evidence that after being on leave in October 2019 he addressed the issues the claimant had raised by email with her directly. His explanations as to what was recorded on SCOPE, where, and what was recorded elsewhere such as on the Optima (OH) portal I accepted.[288]Mr MacAlpine I consider a credible and reliable witness. He was asked to be a wellbeing “buddy” for the claimant, had had a good relationship with her, and was a part-time Federation representative. At the time he was a Sergeant. He could not recall the detail of the conversation with the claimant, but did consider that the issue of Sergeant Fitzpatrick had been raised and discussed, and I preferred that evidence. It was clearly an informal role. He might have allowed the claimant’s husband to attend given that, but having a private conversation was understandable and there was no form of protest at the time. That nothing in particular came out of the meeting is not a surprise. His view was that the relationship between the claimant and Sergeant Fitzpatrick which came out of it appears to me something that is most likely to have arisen from the discussion with the claimant. His evidence that that is the impression she gave I consider reliable, against it being put in cross examination that that had not been discussed – an issue not directly addressed in the written witness statement. He was also not able to recall some of the detail given the passage of time.[289]Mr Tulloch was clearly an honest witness, but there were issues in relation to the reliability of some aspects of it. He was unable to recall many of the details of the appeal hearing, no notes for which were before me, or the detail of his earlier discussion with Chief Inspector Hill. He confirmed that there is a Standard Operating Procedure for grievances and appeals, but that was also not before me. His evidence confirmed that HR involvement would be normal. There was none however, and I had the impression from that and from his review of matters with Chief Inspector Hill before the meeting with the claimant that he had at least a strong provisional view that her decision on the grievance had been reasonable, and that it would help the claimant if the reasons for it were further explained, such that HR was not involved as it was to be treated informally. But that is not essentially what an appeal is normally for. The claimant had appealed the outcome of her grievance as she was entitled to do it would appear from the grievance procedure that is referenced, and although it was not as clear as it might have been why she was doing so it was apparent that she was not content with the outcome.[290]A decision was required on whether the appeal succeeded or failed. It seems to me that what happened was not that, but that Mr Tulloch had decided prior to meeting the claimant that an informal process was appropriate when it was not - he was addressing a formal appeal by a disabled person which included at least some reference to making reasonable adjustments. His inability to recall details is understandable given the passage of time, his retirement in June 2022, the lack of written records, and his impression that the claimant agreed with an informal outcome, but does mean that the evidence before me from the respondent on this aspect was limited at best. It was not clear whether he had received the message she sent in response on 19 May 2022 but it seems likely that he did. What if any action was taken thereafter was not clear.[291]Mr Fitzpatrick was I considered a credible witness. He was broadly reliable in my view, although on some matters he could not recall the detail. He said that although he had read the OH report of 30 April 2021 he had not noticed that part referring to the claimant being a disabled person, and as to reasonable adjustments. He had asked Inspector Beeston about the Disability Passport, but had not been provided with it. Mr Fitzpatrick did not then follow that issue up with HR, and given that the Disability Passport is the method by which reasonable adjustments can be requested and are then determined that is surprising. It is consistent with him not appreciating that the claimant was a disabled person. His view was that the OH report simply meant that she was fit for operational duties. But the Disability Passport had stated that she was on restricted duties as a reasonable adjustment, and that it was to be reviewed by 30 November 2021. It was not. Instead, Sergeant Fitzpatrick decided to implement the changes to the work the claimant was to do in ignorance of that detail. He did so believing that what he was doing was assisting the claimant by reducing or eliminating the sources of stress as he saw it. He had not however noted that the SRA the claimant had completed referred to stress from wearing the uniform, which the changes would require, and nor had he taken account of her comments as to remaining on Viper duties and not, to paraphrase, being taken by surprise. The basis of his decision is I consider not complete, and that is part of the background to be taken into account. His evidence about the claimant was raised in submission. He did state that the claimant always looked upset or unhappy, and that was not the most sympathetic of comments to make. It did not appear to me however that they related to her sex, although they might have related to her disability. The claimant’s submission argued that he had engaged in an outburst against the claimant. I understand that to be a reference to a comment he made when he considered that she had reacted to evidence he had given. Whilst his doing so was not the best conduct for a witness given the circumstances of the case and the context of the evidence I did not consider that that meant that his evidence was not credible or that because of it his evidence was not otherwise reliable.[292]Mr Campbell was a credible witness and, for those matters he was able to recall, reliable. He had retired in March 2022, and given the passage of time since then and that circumstance his inability to recall material parts of what was raised with him was I consider understandable. I considered that he was a conscientious police officer who did his best to support the claimant. There were a number of matters that he referred to which led me to that conclusion. One was the tone of his written correspondence with the claimant. Another was his comment of supporting those in his line management, and his view more generally of those in the police family, as he put it. Another was the level of support he gave by addressing issues when raised with him but also by doing a significant number of Vipers himself, speaking to driving from Fort Augustus where he was based to be in Wick at 6.30am, then after working there driving to Inverness to do a Viper before going home. He did such a high number of Vipers himself that his superior officers questioned whether that was affecting his role as Missing Persons’ Co-ordinator. He spoke about wanting officers at work, and happy at their workplace, and not off ill. I accepted that evidence.[293]He said that in the police everyone thinks their job is the most important, which had the ring of truth about it. It applied to the claimant, and also to those she asked to do Viper duties who had other roles which doing Viper took them away from. He spoke about his staff being taken away from their normal duties to do other work, and explained that that process was a vicious circle, but that it was, to paraphrase, part of team work. I considered that these were balanced remarks of a very experienced officer.[294]Ms Sam Morrison gave relatively brief evidence and was I considered a credible and reliable witness.[295]Ms Judy Hill I also considered to be a credible and reliable witness. I consider that she was attempting to understand the concerns that the claimant expressed to her when addressing the grievance, and seeking to resolve them satisfactorily. She largely reversed the earlier decision by Sergeant Fitzpatrick, and might be described as having pressed the re-set button. In my view the criticisms of her made by the claimant are not justified. The fundamental difficulty from the claimant’s point of view is that what she wanted was for her senior officers to instruct that her tasks took priority over all others, and for reasons given above in my opinion that was not practicable or appropriate. The claimant raised generalised complaints about what had happened to her in a manner that was not easy to respond to, in my opinion. Given all that was before her, I consider that Inspector Hill, as she then was, acted in a responsible and appropriate manner overall in how she resolved the grievance and in her other interactions with the claimant.[296]Mr Scott Macdonald gave relatively brief evidence and was I considered a credible and reliable witness.[297]Ms Lucy Mackie was I considered a credible and reliable witness. She was involved towards the end of the process when the claimant was off work, and it appeared to me that she did her best to support the claimant at that time.[298]It is also appropriate to comment on those who were not called. Mr Steve McKenzie was not called to give evidence. He had addressed the first grievance, but it was explained that he was on long-term sick, and the respondent did not call him as a result. The various individual proposed comparators did not give evidence.[299]Finally, the claimant’s submission invited me to “reflect on the fact that the respondents have not produced any records of their own of the various matters their witness[es] gave oral evidence about” which they submitted was highly relevant. It is unusual at the very least that the documents were produced by the claimant, and none I was told by the respondent. But the documents were spoken to in evidence and included ones authored on behalf of the respondent including by those who gave evidence.
Discussion
[300]The parties’ final version of the List of Issues has been amended by me in the most limited manner that I consider to be appropriate to lead to it being capable of being used within this Judgment. That is as both parties were legally represented, and having regard to authorities with regard to the List of Issues such as Yorke v GlaxoSmithKline Services Unlimited UKEAT 0235/20 where the EAT stated that where the parties are professionally represented the principal responsibility for ensuring that the list of issues is fit for purpose is on them, Scicluna v Zippy Stitch Ltd [2018] EWCA Civ 1320 in which the Court of Appeal relied on the fact that professional advocates had agreed the list of issues in the case which was in effect held determinative of what they were, as a very rough summary, and Moustache v Chelsea and Westminster NHS Trust [2025] EWCA Civ 185 in which the Court of Appeal considered the role of a list of issues further. I have therefore utilised the last version of the List of Issues as drafted by the parties making only those changes I considered necessary. Sex Discrimination: Direct Discrimination: s 13 EA 2010 Was there a continuing failure of the claimant’s supervising officers to compel colleagues to assist her by undertaking Viper duties when asked, or to provide her with sufficient numbers of trained officers able to do so?[301]In my judgment there was a failure to compel Viper Operators who had been trained in the necessary duties, in the sense that there was no evidence of any action to instruct or order a person to do so, either directly with them or by discussion with their supervising officer. There were a number of attempts to improve the position, with a series of steps taken over the period of time when this issue arose, which was from 2017. It was however a problem for the claimant that did not resolve in the manner that she wished, in that she continued to experience officers declining to undertake arrangements she had requested of them, or those who had agreed initially not then being available. It is clear that for some, indeed many, of those there were good and sufficient reasons for that. Policing is a fluid exercise, and can change very quickly. But I consider that there is also evidence that some of the officers were likely to have declined in essence because they preferred not to do so. That arises from the list of reasons given, which was not challenged in evidence, and was also supported by the evidence of Mr Card.[302]So far as the issue of sufficient numbers of trained officers is concerned, it did not appear to me that that was proved as a fact. There was limited evidence as to those numbers, but there was some. It started with DI Baird’s memorandum of 19 March 2015 which noted that there were 29 trained operators. There was then an email with a list of operators sent to the claimant which she responded to, and noted that there were at that time, 17 July 2018, 24 officers who had been trained, one of whom was the claimant, with 3 others not on the list, and 6 officers trained on viewings in Kirkwall and 2 in Lerwick. That is a total of 35 officers. There was evidence of training other officers from time to time.[303]There was a proposal to seek volunteers and train 18 more officers which was explained to the claimant by Inspector Beeston on 23 September 2020. To what extent that took place in practice was not made clear from the evidence, and the claimant was absent from January 2022 onwards.[304]In my judgment there was not sufficient evidence to establish that there was a failure to provide a sufficient number of trained officers. It seems to me that there was a basic sufficiency of numbers who were trained, although as a matter of logic if there had been more officers trained there would be a bigger pool to draw from. But it appears to me that that is not the practical problem. The problem was where those who had been trained declined requests, and it is that issue that there was sufficient evidence about. Do those acts amount to less favourable treatment?[305]I consider that it in principle not compelling officers to act on the claimant’s requests can be, but it is not a matter in isolation as “less” requires comparison with someone else. At the least the declining of duty that the claimant had arranged, as a form of request as she was not able to give an order or an instruction given her rank, was obviously going to cause her frustration and annoyance. It would require her to make other arrangements, and that may in turn cause inconvenience for others, such as the witnesses, accused, solicitors and others. There was some evidence of enquiries from the Crown Office and Procurator Fiscal Service (COPFS) as to what was happening in individual cases, and although there was no evidence that any trial did not take place as planned or that a prosecution did not proceed, there was evidence of delays and difficulties of that nature. I consider that that does amount to less favourable treatment in principle, if the reason for it in comparison with another who does not share the protected characteristic is established. Was the less favourable treatment because of the claimant’s sex?[306]In my judgment the answer is no. That is partly as there was clear evidence from Mr Card, who is obviously a male person, that he received the same form of declining of the arrangements for Viper duties as had the claimant. That is in my view very strong evidence, but not determinative, that is against the argument that the treatment was because of the claimant’s sex. There was also evidence that some of those who declined requests were female, such that it was not always a male who was doing so. That came both in the written evidence including by emails from a female officer and her superior who was also female, but also the list of operators that the claimant commented on included a number of female officers. The claimant’s list of reasons for not accepting Viper work did not name or identify who had said what, but the inference I draw from the evidence is that it came from both male and female officers, each of whom may or may not have had a good reason for declining.[307]Whilst the claimant asserted that the reason for declining requests was her sex, in my view there was an absence of sufficient evidence that linked the treatment that the claimant received in this regard with her being a female. Whilst she genuinely believed that it was that is not a sufficient fact from which the inference could legitimately be drawn.[308]I did not consider it clear which facts were relied on as evidence from which the burden of proof might shift on this ground. For example, there is a list of matters at paragraph 41 of the submission, with a list of events, but on what basis each was said to be a fact from which direct discrimination on the ground of sex could be inferred was not given. The same list was given for direct discrimination on the ground of disability. They are however separate protected characteristics, and whilst there can be some cross over between them there must also be primary facts from which the inference that the reason for the act was sex can be drawn. Some were simply not acts of the respondent, such as those of the Federation. Others were messages sent by the claimant herself. It was accepted that the evidence was “circumstantial”, but that is not in my view the most apt term for a direct discrimination claim, or any claim before the Tribunal. The issue is one of what the primary facts are, and what inferences may properly be drawn from them, in the context of the claims being made. But I have proceeded on that basis and assumed that when the word circumstantial was used it was in that sense. So far as there are details in paragraph 43 some of the matters are not in my view proved, others are not I consider a fair description of the evidence, and the treatment of Mr Card is not taken into account.[309]It is argued that “sexism can also be inferred from the deficient way in which the claimant’s grievances were dealt with, and the similarly careless way in which the OH and absence management process were operated including the “Buddy” approach.” I do not agree. What is required in my view is some form of adequate causal link between the treatment and the protected characteristic that the former was because of the latter can be inferred.[310]I consider that the claimant had not established a prima facie case of direct discrimination on the ground of sex, from which the onus would fall to the respondent under section 136 of the Act. It is not sufficient that the claimant is a female, and that she experienced the treatment she did. The Independent Review Group report issued after the claimant left service makes some comments in general terms, but not in my view for the purposes of this case in a way which sufficiently leads to the onus shifting.[311]My conclusion that a prima facie case was not established is at least partly because the claim that the claimant made of there being no support from her line managers, one of the issues the report referred to, was not correct. There was evidence of support from them, including for example DI Baird issuing bulletin messages, Sergeant Campbell doing a substantial amount to assist himself and Inspector Beeston proposing new arrangements with Sergeant to Sergeant discussions where there was a declining to act. What happened thereafter was that Sergeant Fitzpatrick became the line manager, and he proposed a new set of arrangements whereby three officers would undertake the co-ordinating duties. That would have taken part of the burden from the claimant, but she did not consider that it addressed her concerns and she was also not happy about the return to deployment that was also involved. That however was part of a more national strategy to use officers for deployment where that was possible, and at that time the claimant was declared fit for such duties. These were steps taken that would, if the claimant had continued in her role, have reduced the stresses on her. It was evidence of at least some support from her line managers, not the no support that she has argued for. It was also support within the context of there being limited resources available to a publicly funded body.[312]That the respondent did not do what the claimant sought, being to compel officers to accept her requests at all times, is not I consider evidence of direct sex discrimination. I accepted the respondent’s evidence on this aspect, which was to the effect that that would not be an efficient use of resources, and not how a chain of command properly works, an issue addressed below in relation to the s. 19 claims. But in any event there was nothing I found in the evidence to connect that to the claimant’s sex.[313]The claimant did complain that the problem she was experiencing of officers not agreeing to Viper duties when she requested them continued, such that although there was support and attempts to improve matters which may have alleviated the problem it did not solve it, and it continued. But I found no evidence that the reason for that was the claimant’s sex. There were some events that were not best practice, or where other actions may have been better (such as Sergeant MacAlpine allowing Mr Sandever to be present at the meeting) and others where words used were less than well chosen. These however are not in my view, in the context of the events and against the evidence as a whole, primary facts from which direct discrimination can properly be inferred.[314]I also consider it relevant that although the claimant made two formal grievances in neither of them did she articulate a claim that she was the victim of sex discrimination in any way, whether direct or otherwise.[315]I consider in summary that primary facts sufficient to establish a prima facie case, as explained in authority, had not been established, and section 136 to shift it to the respondent was therefore not engaged. I deal with the issue of comparators, which is material to the consideration of this matter, in the following paragraph. Are the comparators that the claimant relies upon being PC Calum Macaulay, PC Daniel Sutherland, PC Brad O’Neil, PS Stuart Fitzpatrick, PC Roy Reid, and the Viper team based in Aberdeen actual comparators?[316]I have concluded that the proposed comparators are not such as to fall within the terms of section 23 of the Act. There were material differences in relation to each of them as against those of the claimant. PC Macaulay worked in a different context, using facilities not provided to him personally but to the Area (Shetland) within which he worked. PC Sutherland was not fit for operational duties because of a head injury, and was assigned to other duties because of that. PC O’Neill undertook a community relations role which involved building links with the local community. The decision by Sergeant Fitzpatrick to move where the claimant was located was because of his desire to locate the claimant, PC Macdonald and PC Jones in the same office so that they could learn from each other and function as a single team. It was the only office available for that purpose, and the office the claimant had used, with PC Macdonald, was not large enough to accommodate a third person. The decision of acting Sergeant Reid to change an area that the claimant had used was not fully explained in the evidence, and he was not a witness, but having regard to all of the evidence and the nature of police work with limited facilities I infer that it was an operational decision. The Aberdeen Viper Co-ordinators were within a different division, being A Division, such that the context for what they did was different to that of the claimant. There was also three of them in an area with a much larger population, and with decision-making under a different management structure because of that. In each case the circumstances are materially different to those for the claimant. If not are they evidential comparators and would the respondent have treated a hypothetical comparator differently to the claimant?[317]This is not a part of the List of Issues, nor was it addressed in submission, but it appears to me that it is a necessary step in the consideration of the evidence. The evidence in relation to the proposed comparators can be regarded as relevant as evidential comparators in the more general sense, but I did not consider that that evidence was that a hypothetical comparator would have been treated differently. That is largely but not solely because of the evidence of Mr Card. In my view he is an actual comparator – meeting the terms of section 23 or so closely doing so that he is strong as an evidential comparator. He was not formally a Viper Coordinator but was a Police Constable undertaking essentially the same role of organising Vipers. He received, in essentials, the same responses as did the claimant, at least from time to time, and I did not decern any material difference in the frequency that that happened against that experienced by the claimant (and none was in fact suggested).[318]Taking all of the evidence I heard it did not appear to me that this body of evidence was sufficient for the claimant to lead to a prima facie case that a hypothetical comparator would have been treated differently. I considered that a hypothetical comparator would have been treated as the claimant was. I conclude that sex was in not in any way whatsoever part of the decisions as to not compelling officers to act, not doing more than was done to support her, or as to the allocation of resources relating to the claimant.[319]As a result, the claim of direct discrimination under section 13 on the protected characteristic of sex must fail, and be dismissed. Disability Discrimination: Direct Discrimination s 13 EA 2010 Was there a continuing failure of the claimant’s supervising officers to compel colleagues to assist her, or to provide her with the sufficient Viper Operators to run parades effectively?[320]For the reasons given above, there was in relation to not compelling colleagues to assist her, but not as to the sufficiency of operators. Do those acts amount to less favourable treatment?[321]It does in relation to the issue of not compelling colleagues, for the reasons given above and subject to the same qualification in relation to “less”. I should also note that the claimant’s submission referred to “unfavourable treatment” rather than the correct term. I have assumed that that was an error and that less favourable treatment was what was intended. Was the less favourable treatment because of the claimant’s disability?[322]In my judgment the answer is no. The claimant has not established primary facts amounting to a prima facie case in my opinion. That is firstly as the issue arose well before the respondent knew that the claimant was a disabled person, which was on 30 April 2021. It had been an issue from 2016. At that stage the claimant did not appear to be disabled, as issues as to her mental health did not start to arise until the latter half of 2019. It appears to me from the evidence I heard that it was not until the lengthy absence in 2020 that the claimant was a disabled person under the Act.[323]Secondly, the context of policing work being fluid is set out above. Thirdly, I did not find other facts proved from which the reason why officers were not compelled to act was because of the claimant’s disability could be inferred. It is not sufficient that the claimant is a disabled person, and received less favourable treatment. Mr Campbell’s evidence of speaking to officers or their line managers I accepted, and he did so to the extent reasonably possible for someone based in Fort Augustus for much of the relevant period. There was nothing in his evidence that indicated that disability factored into his decisions in any way whatsoever. By the time that Sergeant Fitzpatrick became the line manager the organisation of Vipers had changed, with the creation of a three person unit which was intended to deal with matters more generally within that unit, rather than involving other operators. I deal with the issue of the comparator below. I consider that sufficient primary facts to establish a prima facie case, as explained in authority, was not established, and section 136 to shift it to the respondent was therefore not engaged. Is the comparator that the claimant relies on being her husband an actual comparator, on the basis of his treatment when returning to work from physical injury, which failing a hypothetical comparator being any officer returning to work after a physical injury who was not impaired.[324]In my view the claimant’s husband is not a comparator for the purposes of section 23. There is a material difference between their circumstances. Because of his injury PC Sandever was not fit for his operational duties, which were entirely different to those of the claimant, for a period. He undertook light duties because of that, and was not deployable during that period. At the time of the 30 April 2021 OH report however the claimant was passed as fit for deployment. On a return to work in November 2020 she had been given a phased return, which is in a sense a form of light duties for that period, although was in a somewhat different circumstance, as a way of, in colloquial language, easing her back to work. She was placed on modified duties for a period by the Disability Passport, in circumstances materially different to those of her husband. Is the claimant’s husband an evidential comparator, and how would a hypothetical comparator have been treated.[325]I did not consider that as an evidential comparator, and from the evidence otherwise, there was sufficient to form a view that a hypothetical comparator being someone in materially the same position as the claimant without the protected characteristic of disability would have been treated any differently. I therefore do not find that the claim under section 13 on the ground of disability succeeds and it is dismissed. Sex Discrimination: Indirect Discrimination s19 EA 2010 Do the facts and circumstances the claimant relies upon as amounting to a PCP, being that it became a practice of the respondents that officers were not compelled to attend identification parades that she organised, amount to a PCP?[326]I consider that the claimant has established that there was a PCP to that effect. There was no evidence of officers being compelled to undertake Viper duties, either by instruction or formal order from a senior officer, although the claimant had in effect argued for that. The practice was not to compel, but to let officers exercise their own discretion on the point, and there was no evidence of any follow-up in a disciplinary or similar sense, nor of there being a formal instruction, or order, of any of the operators trained in Viper to act on her request where they had declined. Did the respondent apply that PCP to the claimant?[327]I consider that the respondent did not. The PCP had effect on the claimant as she made requests which could be in effect declined, with no form of compulsitor thereafter. But that is not the same as applying the PCP as it has been framed to the claimant. Her role was as Co-ordinator, and was different to the Operators accordingly. She conducted Vipers herself, in all its stages. The claimant was conscientious and wanted the Vipers to be done as a form of priority. I did not consider from the evidence before me that the claimant had established that the PCP in the terms framed had been applied to her in the sense required by the section. The PCP put forward refers to parades that she had organised, and focusses on those Viper Operators she organised to undertake a Viper duty. That is not something that naturally includes her doing that Viper duty herself. Putting it another way it makes no sense to suggest that the claimant might have compelled herself to undertake any parade. If the parade was being conducted by the claimant the PCP was inapplicable. In my view the PCP as framed was only applied in relation to officers other than the claimant, and so was not applied to the claimant herself. Did the respondent apply that PCP to persons of the male sex?[328]They did. There was evidence before me of responses from male officers such as PC Weatherall, and Sergeant Hanson. Would the respondent have applied that PCP to persons of the male sex?[329]Yes. Did the PCP put persons of the female sex at a particular disadvantage when compared with persons of the male sex?[330]I consider that the claimant has not provided evidence that there was any such group disadvantage. It was not a matter within her written witness statement, and it did not emerge otherwise from the evidence. It is not something within judicial knowledge, and requires to be proved. In my opinion it was not. Would the PCP have put persons of the female sex at a particular disadvantage when compared with persons of the male sex?[331]This was also not addressed in the written witness statement. I did not consider that it could be inferred from other evidence, or was a matter for example of judicial knowledge, that there would be such a disadvantage. In my opinion it must be answered in the negative. What is the relevant pool for comparison?[332]Male officers who were involved in co-ordinating Viper duties. What was the particular disadvantage?[333]None has been proved. It was not addressed in the written witness statement. Did the PCP put the claimant at that particular advantage?[334]On the hypothesis that the PCP was applied to the claimant, contrary to the finding above, the claimant did suffer a disadvantage from increased stress of having to re-arrange Vipers, liaising with third parties who were disappointed by that, and dealing with responses from officers to her about what had happened or how she had dealt with matters. In applying the PCP did the respondent have a legitimate aim?[335]In very broad summary the aim contended for by the respondent is efficiency of the police service. In my view that is a legitimate aim. It is addressed more fully below in relation to indirect discrimination on the basis of disability, and the comments there apply equally in this context. Was the PCP a proportionate means of achieving that legitimate aim?[336]This is again a matter addressed more fully below in relation to indirect discrimination on the basis of disability, and the comments there apply equally in this context.[337]I have concluded that it was. A number of factors required to be weighed in the balance, including what the claimant wished, but also the nature of policing work which is fluid and requires allocation of resources on a form of priority basis which changes from time to time, the resources available, the restrictions on them, and the nature of the command structure within the Police Service itself. It did not appear to me that there was in practical terms other ways of managing the issues confronting the respondent, which had been raised by the claimant, which would have alleviated matters for her. It would have meant elevating Viper duties above all others. That is not practical given the nature of police work. To give one example, there was evidence of officers being required to deal with a serious incident, in a form of all hands on deck instruction. Where issues of public safety in general terms are engaged, or individual matters such as the safety of one person and a criminal investigation into serious crime, as a non-exhaustive list, other matters may require to be delayed. Clearly Viper is very important and yet there was no evidence of the difficulties and delays leading to serous issues for the COPFS. In all the circumstances if this stage had been reached I would have held that the respondent had discharged the onus on it in proving its defence. Disability Discrimination: Indirect Discrimination: s 19 EA 2010.[338]Do the facts and circumstances the claimant relies upon being that it became a practice of the respondents that officers were not compelled to attend identification parades that she organised amount to a PCP?[339]For the reasons given above, yes. Did the respondent apply that PCP to the claimant?[340]For the reasons given above, no. Did the respondent apply that PCP to persons with whom the claimant does not share the protected characteristic of disability?[341]There was no evidence as to this either within the written witness statement or otherwise. Would the respondent have applied that PCP to persons with whom the claimant does not share the protected characteristic of disability?[342]In my view the answer is yes, in that had a male officer worked in the coordinating role (for example after the change to having another officer involved in co-ordinating duties indicated by Sergeant Fitzpatrick) the PCP would have been applied. Did the PCP put persons with whom the claimant shared the protected characteristic of disability at a particular disadvantage when compared with persons with whom the claimant does not share the protected characteristic of disability?[343]I do not consider that there was evidence of this. It was not addressed in her written witness statement or in other evidence. Would the PCP have put persons with whom the claimant shared the protected characteristic of disability at a particular disadvantage when compared with persons with whom the claimant does not share the protected characteristic of disability?[344]On the hypothesis that the PCP was applied, I consider that it can be inferred from the circumstances that where declining of requests led to a need to re-arrange matters, that that would be expected to lead to a degree of frustration and difficulty for others, and that – particularly for someone who suffered from anxiety and depression as a disability – a particular disadvantage can be experienced by the stresses involved in that. What was the particular disadvantage?[345]An increased level of anxiety and stress. What is the relevant pool for comparison?[346]Officers undertaking co-ordinating duties for Viper who are not disabled under the Act. Did the PCP put the claimant at that particular advantage?[347]On the hypothesis that the PCP was applied to the claimant contrary to the finding above, yes. In applying the PCP did the respondent have a legitimate aim? The legitimate aim contended for by the respondent was the efficient delivery of policing in the Northern Division.[348]I consider that the respondent has proved that the efficient delivery of policing was the aim they pursued, and that it is a legitimate aim. Was the PCP a proportionate means of achieving that legitimate aim? (The respondent contends that it was because compelling an officer to undertake Viper duties would unreasonably favour Viper over other duties. That would impair flexibility and the efficient delivery of policing. That is a matter of public interest. Flexibility is important. Police Scotland has a limited budget and limited resources. Units within a Division compete for those resources. There is a finite number of police officers at any given point. The availability of officers to undertake tasks outside of their ordinary duties within their own command is affected by the demands placed on those officers from time to time. Demands may be occasioned by local events such as the need to investigate a particular crime or from major incidents such as accidents. Holidays and sickness absences also have an impact. The command structure means that an officer under one command cannot issue orders to an officer under a different command to undertake).[349]I have concluded that the respondent has established that the PCP was a proportionate means of achieving a legitimate aim. There is an obvious, and proven, need for flexibility in policing matters. Resources were proved to be limited. For example, DI Baird preferred a solution involving two persons undertaking the co-ordinating role, being dedicated to doing so, and sought that from his superiors, but resources meant that the decision made by those superiors was not to grant him all that he sought. Mr Campell also spoke to staffing levels being tight across the Division. Chief Inspector Hill referred to limitation of resources as did others of the respondent’s witnesses. The efficient use of resources was similarly spoken to in evidence. It underlies the decision to move the claimant into operational duties in January 2022 at the same time as splitting the coordinating role into one to be undertaken by three people. It was a general decision taken at a high level and affecting many other officers, seeking to have those who were in back office functions also deployable when required. There was also evidence in relation to the command structure which may allow occasional orders given by a Sergeant or someone of a higher rank to an officer under other management, but in general that is not how the evidence was that the rank and management of ranks operated.[350]What the claimant wanted was in effect to be able to have those she asked to do Viper duties doing so as and when she asked, so that her request was akin in effect to a formal order given by a superior officer. That is in my view not a reasonable position to take. She may believe that there was no good reason to refuse to do it, but Mr Card’s evidence for example was that he declined one allocated to him and had a good reason for that. The claimant also accepted in cross examination that officers could have good reasons for doing so. Another response the claimant received was that the person she asked was on an extradition case in Glasgow. That seems to me obviously a good reason to decline. Mr Campbell’s evidence that all officers thought that their role was the most important was I considered borne out of his long experience, and had the ring of truth. The claimant was looking at matters from her own perspective, not more widely as her line managers and those above them had to.[351]Some of the reasons given for declining that the claimant listed in an email were not on the face of it good ones. But there was no specific evidence of who had said what, and in what circumstances. There were very few emails about this issue that had been produced, but those that there were did suggest that there could be a good reason not to attend. Mr Card gave evidence of his doing so for what he thought was a good reason. I consider that Sergeant Ross, as he was then, now a Chief Inspector, was to be accepted when he gave evidence both that he spoke to the claimant to say that she should raise any issue with him when it arose, but that she did not then do so. His evidence was that without knowing the context and detail a judgment could not be made about whether declining was or was not appropriate, and I consider that that must be right.[352]On balance however, it seems to me likely that on some of the occasions officers who declined a request were not doing what their professional responsibilities required of them. It was because for whatever reason they preferred not to. That may be, as Mr Ross stated, that that was because it involved time out from their own core duties, which led to them falling behind with them.[353]That preference to do one’s own job is nevertheless part of human nature. The respondent, as with the head of any organisation, requires to work within the constraints of those working within the organisation. Viper was one aspect of policing, and an important one. But it was not the only one, nor was it one that required always to have a higher priority over any other. Not every issue is appropriate to solve by a formal order, or by disciplinary action against someone not obeying it without good reason. Giving an order in such circumstances can be expected to be followed, but has consequences. The evidence was that the respondent seeks to work by co-operation and consent.[354]I consider that the evidence given on behalf of the respondent from a number of its witnesses as to what was done to try and make the system work, with the various steps taken at different times and in different circumstances, were proportionate as that is explained in authority. I considered that Mr Campbell’s evidence was of particular assistance in this regard, and I accepted it as credible and reliable.[355]I did not regard it as proportionate either for the respondent to have issued a form of general instruction from one of the more senior managers to the effect that all Viper requests must be actioned come what may – which in essentials is what the claimant contended for - or that if there was a declining it was a requirement for the Sergeant or higher manager of the person doing so to investigate why that was and either order the person to attend or to find him or herself an alternative, or secure that outcome from intervention by the supervising officer. Doing so required time to be spent on that, with the likelihood of a reaction from those involved that itself would not have been likely to have assisted effective policing. It was not practicable as a solution.[356]I fully accept that the claimant’s role was a difficult one, and that she performed it as well as she could do. That was not disputed by the respondent. Mr Campbell said in terms how well she had performed her role, and that she was the Viper “guru”. I also accept that she was a disabled person at least from 30 April 2021, and potentially earlier than that. She was conscientious, and tried to ensure that Viper parades were conducted efficiently and timeously. It is to her credit that she did so, and that she raised when she did the various problems that she encountered. She was right to do so.[357]Her perspective, naturally, was on her own position and work. That of those deciding matters required to be wider, taking account of the resources available, the circumstances, and how best to manage the competing demands on the organisation. That is not an easy task, and the claimant’s belief is that it was not done properly, or lawfully. But her view is from her own perspective of a Police Constable (at the material time), and against that is the evidence of those at higher ranks who have the authority and experience of managing such problems. I have accepted their evidence, which was to summarise it that police officers have to work within the resources made available to them. They are working under pressure. They wish to have more resource, but it is financed from the public purse and that financing, and the resources that can be made available from it, is finite. Compromises must be made such that solutions found to resolve issues mean that a less than optimal way of working may require to take place.[358]On the question of proportionality I also consider it relevant that there was no evidence of a trial of an accused person requiring to be postponed because of a Viper delay, or a suspect not being prosecuted, of formal complaints by COPFS or something of that nature. The difficulties were ones of inconvenience to those involved in the process if a corroborating officer could not be found, and the frustration and stress experienced by the claimant in having to re-do the planning. Frustration and stress is hard to avoid in a co-ordinating role such as that undertaken by the claimant, and in such circumstances as apply to the Police Service. Whilst I have sympathy for the claimant’s position, against the background of her mental health difficulties which are genuine and not minor, it appears to me that that must be balanced against the circumstances the respondent works within.[359]I have come to the conclusion that the respondent has discharged the onus on it in this regard, and has proved the objective justification defence as it is often called. This claim is accordingly dismissed. Disability Discrimination: Failure to Make Reasonable Adjustments: ss 20/21 EA 2010. Do the facts and circumstances the claimant relies upon, being that the claimant repeatedly asked for support from her supervising officer so that her Viper duties could be discharged by compelling Viper Operators to undertake duties or providing additional officers able to do so, amount to a PCP?[360]It appears to me that the PCP as framed is not one that meets the statutory definition. The claimant did repeatedly ask for support, but that is not a PCP as it is an act of the claimant, not of the respondent. It must be something that the respondent does that forms the PCP, in my view. For the claim to be a competent one the PCP would require to be re-framed, and no attempt to do so was made. Did the respondent apply that PCP to the claimant.[361]Not now applicable. Did that PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with a person who was not disabled?[362]If the PCP had been applied to the claimant it would have increased her levels of stress for the reasons set out above. What steps should the respondent have taken to avoid the disadvantage? The claimant contends that an insistence that officers attend Viper parades or additional officers being allocated to assist the claimant in carrying out her role would have been a reasonable adjustment. Other suggestions were made by the claimant at absence management meetings throughout 2022 until 2 June 2024.[363]In my opinion, if there was a PCP applied to the effect of the respondent not compelling Viper operators to act on the claimant’s requests, contrary to the finding above, it was not a reasonable adjustment to do what the claimant argued for. That is essentially for the same reasons as set out in relation to the defence of objective justification.[364]On the suggestions at attendance support meetings these are not clearly specified in this List of Issues. It is not clear to me what exactly the claimant argues in this respect. I have however, taken it on the basis that it is intended to focus on the issue of being deployed to uniform duties, which the claimant wished not to do. I consider that given the information available to the respondent at the time, and that a decision had been taken nationally, it was reasonable to raise that as a matter but how it was done was not a reasonable step. For the claimant it was a significant change. She was being taken from a position where she solely did Viper Coordination to one where she both did that, assisted by a colleague, and was able to be deployed on operational duties. The claimant was known to be a disabled person. The instructions given to her should be seen against the background of the 30 April 2021 OH report. It did not simply clear her for duty, but referred to adjustments being in summary by regular discussions with her. What took place on 13 January 2022 was not so much a discussion with her as an intimation of a change. No updated OH advice had been taken at that point on the change.[365]I have taken into account the guidance in the EHRC Code of Practice.[366]In summary, had the PCP been applied to the claimant contrary to the finding above, it would have been a reasonable adjustment not to have intimated to the claimant on 13 January 2022 that she was to return to uniform duties, but otherwise that the adjustments contended for were not ones reasonably required of the respondent. Would taking those steps have avoided the disadvantage?[367]There was little evidence of this, but for the purposes of the Judgment I consider that on the balance of probabilities, if it had been a reasonable step not to intimate that the claimant was returning to uniform duties, it would. It would have eased the claimant’s performance of duties and materially reduced the levels of stress. When did the duty to take those steps arise? It is agreed that any duty arose after 30 April 2021. The respondent also argues that there was no duty to make reasonable adjustments from 14 January 2022 when the claimant commenced a second period of sickness absence. From that point, no date when the claimant would be fit enough to return to work could be identified. The claimant never returned to work.[368]On the hypothesis above, it would have arisen on 13 January 2022. Would it have been reasonable for the respondent to have taken those steps? The respondent argues that it would not have been reasonable to have taken those steps due to resources being finite, the competing and unpredictable demands on resources (including police officers), the requirement for flexibility, the command structure and the public interest referenced above.[369]On the same hypothesis in relation to that 13 January 2022 meeting yes, for the reasons given above, and otherwise no. Harassment related to sex: s 26 EA 2010 Did the conduct upon which the claimant relies being:(a) Comments and conduct by Sergeant Campbell and Inspector Beeston in January 2021 in relation to her health, and their refusal to allow her to be given a referral to OH(b) Delay in making an OH referral between Jan 21 and Apr 21 without any reason by them(c) Failure to investigate her grievance to a basic standard between July 2021 and August 2021 by Inspector Mackenzie(d) Comments and conduct of meeting by Sergeant Fitzpatrick and Inspector Bisset in January 2022 discussing making changes to the claimant’s duties(e) Failure to investigate her second grievance to a basic standard between January 2022 and April 2022 by Inspector Hill and an appeal by Chief Superintendent Tulloch(f) Conduct of a ‘buddy’ meeting by Sergeant McAlpine in March 2022(g) Failure by the respondent to record or pass on information about causes of her absence and recommendations about adjustments to assist her in returning to work, to September 2022, occur?[370]I have concluded that:(a) Inspector Beeston did refer to the mental health of others when meeting the claimant, but I did not consider that there had been specific reference to the claimant’s mental health. He did not refuse to allow her to be given a referral to OH. He, wrongly, thought that she could do so herself. That is not I consider a refusal as that word is properly understood.(b) It is far from clear that a failure to act can be conduct under section 26. The reason for the passage of time between January and April 2021 was that Inspector Beeston was wrong about self referral for OH, and when it became apparent that that was the case the referral was made. It was not at least a deliberate delay, although from the claimant’s perspective it may have seemed to be so. On that basis, I accept that as a matter of fact the claimant sought an OH referral in January 2021 and it was not made until April 2021.(c) From the terms of the documentation before me I do not consider it established that Inspector McKenzie failed to investigate the grievance to a basic standard. It is a matter referred to above.(d) I find that Sergeant Fitzpatrick (using the correct name) and Inspector Bisset did tell the claimant that she was to be sharing Viper duties and that she would require to perform roles as a deployable police officer in uniform. I also accept that Sergeant Fitzpatrick said that he had noted that she was assessed by OH as being fit for deployment, or words to that effect. That is what the OH report had stated. It was not however the complete picture as the claimant was on modified duties under the Disability Passport procedure.(e) I do not consider it established that Chief Inspector Hill failed to investigate the second grievance to a basic standard. She did, and she largely upheld the grievance, recalling much of what had been done at the 13 January 2022 meeting. In effect she re-set matters, and was proposing to start that process again. I accepted her evidence in this regard and did not accept the claimant’s arguments put to her in cross examination. The consideration of the grievance in my view requires to be assessed in the context in which it was framed, which did not make it clear what the claimant sought. I consider that it was at the least adequately investigated. Whilst the appeal was handled in a very informal manner, how it was handled requires to be seen in context. The appeal was against the decision which was very largely to allow the grievance. The appeal did not clearly articulate what the claimant sought to achieve by it in my opinion. The appeal was discussed with the claimant at a hearing, and there was afterwards a message sent to her with comments about how it had been handled. which she responded to not by a wholescale challenge to it but with a form of limited qualification to what had been said. How the appeal was handled was not best practice and was not on the face of it in accordance with procedure. That appears to have been the basis of the response sent about it much later on behalf of the respondent. But best practice is not the test. Matters require to be considered in the round, and doing so I did not consider that the appeal had not been investigated to a basic standard as the claimant alleged. Putting it another way I considered that in all the circumstances it had been investigated to a basic standard.(f) Sergeant McAlpine asked PC Sandever to leave so that he could have a private meeting with the claimant. That was not an obviously sensible thing to do, given that the claimant was off sick and a disabled person, and he was there to support her. That he made that request is however accepted. On this aspect I therefore find for the claimant.(g) I was not clear about what was meant by “failing to pass such information on.” There was a recommendation in the OH report of 30 April 2021. It was given to Inspector Beeston. He was aware of it. The recommendation was for discussion. That took place, and efforts were made to improve matters in various respects. Sergeant Fitzpatrick was not aware of its full terms, from the evidence he gave, but he did have it available to him and he did also conduct discussions. Chief Inspector Hill was in effect making arrangements in the grievance outcome to start the process of considering what duties the claimant should perform from scratch, and she had a discussion on matters with the claimant at the grievance hearing. So did Chief Superintendent Tulloch at the appeal hearing. These allegations by the claimant I did not find established. The one aspect that I do find was that the OH report itself was not, from the evidence, added to the claimant’s SCOPE record and to that extent I find in the claimant’s favour. Was the conduct unwanted by the claimant?[371]Yes Was the conduct related to the claimant’s sex?[372]I have concluded that it was not. I did not find sufficient evidence from which an inference that the conduct was related to sex could be made. The fact that the claimant is female is not sufficient. The “related to” must mean that there is something to link conduct to sex. What that was said to be was not clear for each individual matter.[373]To take one example, the claimant alleges that the meeting at which she was told that she would be undertaking uniform duties on 13 January 2022 was an attempt to intimidate her. The evidence was clear that at a national level there was a decision to move officers who were capable of being deployed from back office functions onto frontline policing, in other words to be deployed on operational duties. That required wearing a uniform. It was not a decision taken in relation to the claimant specifically, but across the board of policing, and then applied to her and others. It was a decision taken much higher up the management chain than Sergeant Fitzpatrick or Inspector Bisset. There was some lack of clarity as to what Sergeant Fitzpatrick had said about stress, but it was something to the effect of “not all stress is bad”. That was a clumsy expression, not least to someone who was a disabled person on account of anxiety and depression, who had been off work for over 7 months in 2020. He also said something to the effect of “forget the past”. That again was clumsy, but both of those comments were it appears to me clearly an attempt to alleviate the claimant’s concerns, and to move forward. Nothing within them suggested that they were related to the claimant’s sex. They did not directly or indirectly reference her sex. The claimant challenges the conduct of her grievance by Chief Inspector Hill at (e) but it appeared to me that there was anything in the evidence beyond generic issues such as the statement of the respondent referred to above, or the Report also referred to above, that indicated that it was related to the claimant’s sex. Those generic issues are not I consider sufficient in this regard. I accepted the evidence of Chief Inspector Hill in this regard, and find that her decision on the grievance was in no way whatsoever related to the claimant’s sex. Another aspect is the appeal before Mr Tulloch also at (e). It can be criticised in a number of respects, including as against best practice and the apparent terms of policy. But similarly I did not consider that there was anything in the evidence beyond generic issues such as the statement of the respondent referred to above, or the Report also referred to above, that indicated that it was related to the claimant’s sex. I accepted Mr Tulloch’s evidence and did not consider that the conduct of the appeal or the outcome were in any way whatsoever related to the claimant’s sex. Another example is the meeting with Sergeant MacAlpine, item (f). That was not a formal one nor was it part of a required process but an informal meeting to try and help the claimant. The claimant’s submission was that the way it was conducted was a demonstration of the respondent’s lack of care or interest. But the suggestion was to try and help, and that does show care. It does not appear to me that what Sergeant MacAlpine did was affected by or related to the claimant’s sex in any way at all. Item (g) was in respect of records and how matters were passed on. That is not a natural issue of harassment, although there is no impediment to it being so if the evidence suffices. I did not find evidence to support the claimant’s belief that it was motivated in part by her sex, as the submission argued. None of the matters where I have found for the claimant within (a) to (g) above are matters which in my opinion are related to her sex, from the evidence before me. Did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[374]It did not have that purpose. So far as effect is concerned I did not consider that the statutory test had been met. As is made clear in authority there is a form of minimum level that must be reached in order to do so. Precisely where that is may not be simple to define, but it is to be applied as a matter of judgment. In my view, in the context of what was happening, none of these matters met such a test. I address the reasons for that below. Did the claimant perceive the conduct to have that purpose or effect?[375]I accept that she did. Was it reasonable for the conduct to have that effect having regard to the claimant’s perception and the other circumstances of the case?[376]I consider that it was not, save in relation to the 13 January 2022 meeting. As authorities have made clear, not every unfortunate phrase or turn of events meets the statutory provision. The words of the statute must be read in context, and together. All of the individual matters where I have found for the claimant as referred to above do not I consider meet the threshold of what may reasonably be regarded as harassment, save the conduct of the 13 January 2022 meeting. In that regard it is I consider material that the claimant was told that she was fit to return to operational duties in uniform when the documentation in relation to that had not been fully considered, and the management of her modified duties had not properly been completed. The manner in which the decision was intimated to her was not that of a discussion with her, which is referenced in the last OH report, but of intimation of the decision, and in a way that indicated that it would apply come what may. Given the nature of the evidence of what was said, how it was said, and what effect it had on the claimant, I consider from the evidence before me that it was reasonable for the claimant to perceive it as harassment, albeit that I do not consider that it was related to her sex in any way. For the other matters, including the grievance hearing and appeal, I did not consider that the circumstances were such that they fell within the statutory definition. Harassment related to disability: s 26 EA 2010 Did the conduct upon which the claimant relies, being (a) Failure to investigate her grievance to basic standard between July 2021 and August 21 by Inspector Mackenzie (d) Comments and conduct of a meeting by Sergeant Ferguson and Inspector Bisset in January 2022 discussing making changes to the claimant’s duties (e) Failure to investigate the second grievance to a basic standard between January 2022 and April 2022 by Inspector Hill and the appeal by Chief Superintendent Tulloch (f) Conduct of a ‘buddy’ meeting by Sergeant McAlpine in March 2022 (g) Failure by the respondent to record or pass on information about causes of her absence and recommendations about adjustments to assist her in returning to work, to September 2022, occur?[377]This is addressed above, and the same comments apply. Was the conduct unwanted by the claimant?[378]This is addressed above and the same comments apply. Was the conduct related to the claimant’s disability?[379](a) The grievance referenced the claimant’s mental health on a number of occasions and is related to her disability in the event that it is considered that the grievance was not investigated to a basic standard, I did not have evidence from Inspector Mackenzie and infer from the evidence I did hear that any failure of investigation was so related. (d) The decision to change the claimant’s duties was not related to her disability as it was one that was taken for officers more generally, but the comments about stress not being all bad and to forget the past were made in relation to the claimant’s disability. The manner in which the meeting was conducted, which was an intimation of decisions rather than a discussion with the claimant as the OH report had referred to, was one that was related to her disability, as was the fact that it did not address her being on modified duties in relation to the Disability Passport. (e) The second grievance was related to the meeting of 13 January 2022, when issues related to disability arose and to that extent the context of the grievance was related to disability. It follows that the appeal against that decision was so also. But the conduct alleged of not investigating the grievance or appeal was not established and even if it had been I consider that the evidence was that in both respects neither the conduct of the hearing nor the outcome of it were related to the claimant’s disability. (f) The buddy meeting was arranged to assist the claimant in light of her disability and its conduct was related to it. (g) There was a failure to record on SCOPE her OH reports, SRAs, and Disability Passport. These were matters related to her disability. Did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[380]It did not have that purpose, but in so far as there are findings for the claimant in this regard it did have that effect. Did the claimant perceive the conduct to have that purpose or effect?[381]She did. Was it reasonable for the conduct to have that effect having regard to the claimant’s perception and the other circumstances of the case?[382](a) In my judgment the answer for the first grievance is no. The claimant did not appeal it. That is not determinative but supports the view that it was not reasonable to regard the matter as harassment within the statutory definition, even if contrary to the finding made it is considered that the investigation was not adequate. (d) Taking account of all of the evidence, it appears to me that the manner of conduct of the 13 January 2022 meeting would reasonably be regarded as harassment given all the circumstances. It failed adequately to engage with the fact that the claimant was a disabled person, known to the respondent. She had been on modified duties, which had not been adequately managed as the review meeting on or before 30 November 2021 had not taken place. The meeting was a discussion with her, but it included an intimation of what was to happen in the face of that issue over modified duties. Sergeant Fitzpatrick said in evidence that he had not read all of the OH report dated 30 April 2021. He required her in that meeting to undertake a new set of uniform duties which in effect overrode her being on modified duties, and he then removed the flag on the claimant’s SCOPE record about that without having full appreciation of all of the material facts. I consider that it was reasonable for the claimant to have regarded that meeting as harassment within the statutory definition from the evidence I heard. (e) I did not consider that the grievance hearing, either as to how it had been conducted or the outcome of it, was reasonably regarded as harassment. The way it was conducted appeared to me to have been sympathetic and understanding of the issues the claimant raised. As already noted, the outcome was to start the process of assessing whether the claimant was fit for operational duties from scratch. Whilst the context of that was the claimant’s disability and how the meeting on 13 January 2022 had been handled in relation to matters identified above it is I consider of significance that the outcome was to start the consideration of deploying the claimant, or not doing so, again. It appears to me that in essentials the grievance was upheld. In so far as it was not, that is because what the claimant sought was not I consider clear from her grievance. The appeal was not handled as one might have expected, but that is I consider to be distinguished from an act of harassment within the statutory definition. Given the comments about the outcome the claimant sent, which I consider are not consistent with someone feeling harassed, and the context of the grievance itself as above, I did not consider that this fell within the statutory definition. I consider in summary that it was not reasonable to regard either the grievance or appeal as acts of harassment. (f) I consider that it may well have been better had the claimant’s husband not been asked to leave, but he did, and there was no protest by him or the claimant at the time. I consider that what happened would not reasonably be regarded as harassment given all the circumstances. (g) It appears from the evidence that the claimant was not aware of the matters she now relies on until these proceedings. It is not clear to me that in such a situation there could be harassment, but if contrary to that view there can be, I consider that what was done does not meet the statutory test. How matters were managed was not what may be described as optimal. Finding out about it may well have caused a sense of disquiet and frustration, but I consider is not reasonably regarded as harassment in the statutory sense.[383]In summary I find from the evidence before me that the conduct of the meeting on 13 January 2022 did amount to harassment related to disability under section 26 of the Act but that the other matters alleged by the claimant did not. Jurisdiction: Time Limits: s. 123 EA 2010 What is the last act of discrimination for each of the claims made?[384](a) For direct discrimination on grounds of sex there was none.[385](b) For direct discrimination on grounds of disability there was none[386](c) For indirect discrimination where the PCP is in relation to sex there was none.[387](d) For indirect discrimination where the PCP is in relation to disability there was none.[388](e) For harassment related to sex there was none[389](f) For harassment related to disability it is 13 January 2022. When did the last act take place for each of the claims made?[390]The conduct of the meeting on 13 January 2022 amounted to an act of harassment, for the reasons given above. I do not consider that after that any of the other alleged acts of discrimination took place. For clarity having regard to the term used in the last two issues in the List of Issues prepared by the parties, I add that in light of the terms of section 25 of the Act harassment is not discrimination but a separate claim, as a matter of terminology, but that is a matter of labelling which I consider of no particular significance in this context. The same comment applies for issues below where the word “discrimination” is used, and should be taken as if including harassment although under section 25 it does not. Are there acts of discrimination, whether or not including the last act, that amount to conduct extending over a period for each claim made?[391]No. I consider that there has not been proved to be conduct extending over a period that is relevant to issues of jurisdiction under the section, noting that the act that I have found is one of harassment not discrimination. From the evidence I heard there were a number of officers involved in matters at different stages and in different circumstances. I do not consider that the very general comments by the Chief Constable, or the terms of the Report referred to, are such as to be sufficient to establish such conduct extending over a period which included the act of harassment found. These aspects of the evidence are not irrelevant, but it seems to me from the evidence I heard that those concerned took their own decision within the context of the circumstances before them, which varied very markedly, and the test as explained in authority has not been met. The decision made by Sergeant Fitzpatrick intimated on 13 January 2022 was in the context of his understanding of decisions made by senior officers as a policy applying to officers generally which had nothing to do with their sex or disability status. Whilst the manner in which the meeting was conducted, and its circumstances, were as set out above that I consider was not driven by a more general policy or set of circumstances amounting to conduct extending over a period. The decision by Chief Inspector Hill on the grievance that followed that meeting largely reversed the outcome of it, and is not the same form of conduct extending over a period, but a very different decision made by someone else in different circumstances. The appeal by Mr Tulloch, which I have found was not an act of discrimination or of harassment, again was a very different decision in different circumstances. It does not appear to me that the claimant has established that there was the kind of conduct required in terms of the section. What is that period for each claim?[392]This does not now arise. Is the end of the period over which the conduct extended after 10 May 2023?[393]This does not now arise. If not is it just and equitable to accept jurisdiction?[394]I have considerable sympathy for the claimant, who was clearly a conscientious officer. She sought to carry out the Viper work as effectively and efficiently as possible, and found the difficulties she encountered in doing so an increasing source of stress for her. In a perfect world matters could have been managed differently, but the respondent operates in circumstances where resources are finite and require to be prioritised. I must assess matters in light of the evidence I heard.[395]I require to decide as a matter of discretion and on the basis of all of the evidence whether it is just and equitable to accept jurisdiction. There are a number of factors to balance, and I require to do so where they do not all point in one direction. The claimant in her submission argues that the claim has been presented in time. She also argues in the alternative that it is just and equitable to allow the claim to be heard late, and sets out eight matters in support. It is notable that in the written witness statement, by which the claimant’s evidence in chief was given, there is no specific reference to why her claim was pursued when it was, and there is an argument that the delay was very short as I shall come to. The evidence base for considering the exercise of discretion particularly but not only when assessing the reason for delay is limited because of that, in my view.[396]The first is what she describes as her efforts to bring matters to the attention of the respondents internally, to summarise. The claimant made two grievances and was in effect continuing to argue that the solution to matters was to compel officers to accept her requests for Viper work. She argued her case articulately when corresponding with the respondent and others. There was an appeal of the second grievance outcome, as well as a later message addressed to the respondent herself. These are matters to take into account, but in my opinion such internal correspondence is not to be equated with the step of commencing Early Conciliation and then presenting a Claim Form. In this context it appears to me that starting Early Conciliation and then presenting a Claim Form are the material steps (being the ones referred to in the statute) and are to be distinguished from internal correspondence (which is not). It is the making of a formal Claim, after Early Conciliation, that puts a party on notice of that, not the internal correspondence. It seems to me that the internal correspondence is not a strong factor in favour of the argument for the claimant, but the fact of internal issues being raised is a matter to take into account.[397]The second is that she sought assistance from the Federation, who latterly were reluctant to support her. That is true to an extent, but there were discussions with two sets of solicitors, and some email correspondence, as I shall come to. It does not seem to me that the position of the Federation is a strong factor in favour of the argument for the claimant.[398]The third is that the Federation did not advise about bringing a Tribunal Claim herself. But I do not see such a point being made in her written witness statement. In any event it is a minor point in her favour at best, given all the other evidence as I shall come to.[399]The fourth is the serious health issues the claimant had. Reference is made to medical evidence. I address that further below. It is a factor that is one of significance, but requires to be assessed in the round with all the other evidence as I do below.[400]The fifth is an argument that the period of delay was extremely short. I do not accept that argument. The delay requires to be assessed against the statutory time limit which is of three months. It was I consider a long delay given that, and it is also to be assessed in relation to forensic prejudice as I shall come to.[401]The sixth is that although unable to work the claimant remained an employee. That is not correct. She was not an employee, but a Police Constable. She remained in that role however, until ill health retiral, and she did not return to her role from and after 14 January 2022. It does not appear to me that this is a strong factor in her favour, but it is a part of the background to take into account.[402]The seventh is an argument of the lack of any real prejudice to the respondent in presenting their evidence which any delay can be shown to have caused. I do not accept that argument, for reasons I address more fully below.[403]The eighth is the importance of the matters which the claimant complains of in public policy terms. Matters of discrimination are always of public importance, as has been addressed in a number of authorities. But I am not aware of an authority that when exercising discretion in this context under section 123 the nature of the claims being made or their factual context is of particular relevance. No authority is cited by the claimant in this regard. It appears to me that this matter is part of the background, but at best of limited significance when assessing the exercise of discretion.[404]Before I address some of these matters further, it seems to me that there are some matters that the claimant has not addressed to any great extent. Of particular significance is that the claimant had legal and other advice and assistance. Initially that assistance was from the Federation, and that was from a fairly early stage. She was later, however, referred by the Federation to solicitors on a number of occasions and the claimant spoke with two separate firms of solicitors. She exchanged emails with them. She separately exchanged emails with Citizens Advice.[405]It appears to me that this case is one where identifying the remedy for the claimant in law is not a simple matter. On one view, and this appears to have been the view of the Federation initially, it was to be characterised as a claim of personal injury for breach of a duty of care. That requires a civil court action, and the solicitor she discussed matters with first appears to have been someone experienced in that area of the law, although the identity of that person was not disclosed in evidence. That person appears to have suggested that it was more of an employment law issue. But in an email of 5 May 2021 there was reference to a “grievance under the Equality Act. That’s what the solicitor did say.” It seems to me that as there was both reference to the Equality Act 2010, and a discussion with a solicitor, that the possibility of a claim being made under that Act to the Employment Tribunal if the grievance was not successfully resolved was, or ought reasonably to have been, known to the claimant even if that came from a personal injury solicitor.[406]The position is then made more clear as the claimant spoke with Ms Salmond, who is an accredited employment law specialist, in and around February 2022. Emails were exchanged in March 2022. By that stage, which was after the meeting on 13 January 2022 it was, or ought reasonably have been, apparent to any solicitor of ordinary competence that there was a potential issue as to timebar that was liable to arise in reasonably short order, and that Early Conciliation should be commenced without delay to preserve the position even if there were internal procedures ongoing and even if there may be an argument about conduct extending over a period. What steps to take at that point are I consider likely to have been the subject of discussion, or ought reasonably to have been so. Legal advice is however confidential, and the evidence as to this aspect from the claimant herself was very limited in the written witness statement. It may be of course that the claimant does not recall what was discussed, given the passage of time, or that she has chosen to retain the advice she received as a matter of confidence, but there were emails produced by her and there was no specific reference to the aspect of confidence in the statement or submission. Her evidence was that there was a recommendation for an opinion from counsel, but that the request for the Federation to pay for this was refused. There is some lack of clarity over her evidence on this and her written witness statement does not refer to all of the emails in the Bundle, which were raised in cross examination. But when support for counsel was not approved by the Federation she was in a position to take action herself in my opinion, essentially doing timeously what she later did out of time.[407]The claimant was aware of the fact of there being disability provisions, as she referred to them herself both by reference to the 2010 Act and by a reference to discrimination in correspondence. The OH report of 30 April 2021 made clear the opinion that she was considered to be a disabled person under the Act. It appears to me relevant that from November 2020 the claimant was at work, undertaking her duties and apparently doing so effectively, as that was never disputed by the respondent nor was it a matter raised by the claimant. In that OH report she was assessed as being fit for duty. There is nothing before me to suggest that she was other than fit to be a police officer at that time being 30 April 2021, and although she had been on a phased return to work for 12 weeks from 15 November 2020 she had been at work operating at least to an extent as the Viper Co-ordinator from then. That role requires following provisions relevant to Viper, completing documentation and the like. There was no suggestion that she had not been able to do so. Modified duties were then provided for her by way of a Disability Passport.[408]Matters changed further and materially with effect from 13 January 2022 and the following day when she started a period of absence from work from which she did not return. But I did not consider from the evidence I heard that she was not able to undertake researches of her own from that date, or undertake discussions with those advising her, or who had earlier done so. She did have discussions with Ms Salmond after that meeting. I have taken into account both her evidence and that from various medical reports before me including those for the ill health retiral process.[409]In light of all of the evidence I have concluded that the claimant was in a position either to undertake her own enquiries either online or otherwise about what to do if a discrimination claim of some sort was to be made, or to ask one of those she spoke to assist her to do so, including from around May 2022. At that point she was aware that she was a disabled person under the Act, was therefore aware of the Act in general terms at the least, and was in a position to undertake her own enquiries about seeking a remedy if she was not being assisted by the Federation or otherwise. She was absent in January 2022 onwards, but she was able to communicate with others, including the Federation, in detailed terms. She was able to meet Mr Tulloch for the grievance appeal, and she corresponded with him thereafter. The outcome of the appeal was the end of that internal process. It was, or ought reasonably to have been, clear to the claimant that the latest date of an act of discrimination was 22 April 2022 if that appeal was an act of discrimination, and that required Early Conciliation at the very latest by 21 July 2022. I have held that it was not, and that the 13 January 2022 meeting was the last act of that nature. In fact, the claimant commenced Early Conciliation. I appreciate that she had presented a grievance and appeal, and had raised matters in correspondence, such as when she wrote to the respondent by message with substantial details of complaints in February 2023. But being able to do these acts is I consider evidence of a person who is able to start Early Conciliation and present the Claim she later did. As the Early Conciliation steps she did take, starting on 9 August 2023, were not timeous that did not extend the period for presentation of a Claim. The Claim itself was presented on 18 September 2023. Early Conciliation ought to have commenced on or before 12 April 2022, with the Claim Form presented timeously after a Certificate was issued which would normally, subject to the length of that early conciliation, been in or around mid June 2022. The delay is therefore of the order of 15 months. Against the statutory time limit of 3 months that delay is a lengthy and significant one in my opinion.[410]I consider that the evidence is that she was in a position to pursue a Claim throughout that period notwithstanding the fact that she was absent from work and suffering from a material level of mental ill health. I note that the claimant prepared the Claim Form herself. It was prepared at a time when the OH report and later reports from the FMA and CMP indicated that the claimant was not able to work as a police officer nor in other employment, and after her ill health retiral. As she was able to do so at that stage in light of her medical condition at that time, it appears to me that it follows that she was able to have done so at the earlier stages when her medical and work positions were materially better.[411]I consider in light of that analysis that the reason for the delay in commencing the claim has not been shown to be a good one. Whilst this as a general matter is important, in my opinion it is not determinative, as addressed in the authorities above. It is one of several factors to take into account.[412]Her basic case, simplifying it substantially, is that had what she sought been done her stress levels would have reduced, there would not have been the same difficulty with other officers, and she would have been able to continue working. There are other matters as well, including the prospective return to operational duties in uniform which she wished to argue against, but that was the heart of her case.[413]For reasons I have addressed above I did not consider that compelling officers to follow Viper instructions as a standing instruction to be a reasonable adjustment. It was placing her own views and role above all other factors in policing. I consider it likely that some of the declinatures of her request were ones borne out of personal preference rather than a higher police demand for other duties to be performed. That is human nature. Factors such as not knowing how long it may take when the end of a shift was approaching also were an influence. But these kinds of issues are essentially ones for line managers to manage. More could have been done, and matters could have been managed better than they were. I have much sympathy for how the claimant perceived matters, and the difficulties she faced. It must have been frustrating when Vipers did not take place, and she was the one who had to liaise with COPFS and others about it. This is not however what might be described as a constructive dismissal claim. It is one for disability discrimination. For the reasons given it is not one on the evidence before me that I consider succeeds.[414]To the extent that I did make findings in fact in favour of the claimant in particular in relation to the 13 January 2022 meeting but to an extent otherwise that has in my opinion at least in part been affected by the passage of time and its impact on the quality of the evidence led before me. Both the claimant herself and most of the respondent’s witnesses said that they could not recall some details when asked in examination in chief or in cross examination (or both). That is understandable, as noted above. But it meant that detail that might have been relevant was not before me, and I consider that that has prejudiced the respondent to a considerably greater extent than the claimant. The level of prejudice is essentially a matter of speculation as I do not know what the evidence might have been had it been given in a case commenced timeously. I have also taken into account that there were a number of Preliminary Hearings and one set of dates for the Final Hearing were postponed, all of which contributed to the delay between events occurring and evidence being given about them. But there is I consider a material level of prejudice that is likely to have occurred from the delay in the claimant commencing this Claim initially by Early Conciliation and then presenting the Claim Form timeously and that the length and impact of that delay is significant. This in my view is a strong factor to weigh in the balance.[415]I have taken into account the finding that the 13 January 2022 meeting was one that, on the evidence before me, was an act of harassment related to disability. That the claimant succeeded with the merits of that claim is a material factor in her favour. It seems to me however that the findings in fact in relation to that meeting were impacted to a material extent by the delay in commencing the claim and that the quality of the evidence in relation to it has been reduced in light of that. The degree of forensic prejudice in light of the delay I have concluded is significant. It is relevant that Sergeant Fitzpatrick whose evidence is naturally material in this regard has, in the intervening period, left the Police Force. A number of matters were not recalled by him, and his evidence in a number of respects was I consider obviously impacted by the passage of time.[416]Given all of the matters addressed above, and looking at it in the round in light of all the evidence, but particularly the combination of forensic prejudice and that there is not a good reason for the delay, I have concluded that it is not just and equitable to allow the claim to be received under section 123 of the Act.
Conclusion
[417]The Tribunal does not have jurisdiction and I must therefore dismiss the Claim.[418]In the summary of the law above I have referred to some authorities not founded on by the parties. I considered that doing so was appropriate under the overriding objective to avoid further delay in making the decision. If either party considers that it has suffered an injustice from that it can seek reconsideration of the Judgment setting out which authorities it wishes to comment on and its submission in relation thereto.