Ms F A Alexander v Scottish Police Authority: 4106415/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106415/2024Venue GlasgowHearing 18 – 22 August 2025 and in Chambers on 25 August 2025
Between
Ms F A AlexanderClaimantScottish Police AuthorityRespondent
Before
Employment Judge MurphyMr R Clarke (instructed by Solicitor) for claimantMr S Miller (instructed by Solicitor) for respondentDate 22 September 2025
JUDGMENT
The judgment of the Tribunal is that the claimant’s claim that the respondent failed in its duty to make reasonable adjustments is not well founded and is dismissed.
REASONS
[1]This final hearing took place as an in-person hearing at the Glasgow Tribunal. I am grateful to Mr Clarke and Mr Miller for their assistance with the case. The claimant (C) gave evidence on her own behalf. The respondent (R) led evidence from Ivan Cunningham, Lynsey McPherson and Fiona Douglas. Evidence in chief was taken from the witnesses by way of written witness statements. The witnesses were referred to a joint bundle of productions running to 749 pages to which C added a further document (of consent) on 21 August 2025. Many of the documents in the bundle were not introduced into evidence.[2]The following abbreviations are used in relation to individuals referred to in this judgment. During the hearing the terminology ‘first’, ‘second’ and ‘third’ line managers described managers progressively more senior in the chain of C’s line management (s opposed to managers who succeeded each other over time. The same terminology is adopted. AA Ashley Addison, Service Delivery Manager (SDM), SB’s manager and C’s third line manager from 25 July Dr D Dr Monika Dobrowolska of Optima Health, R’s Occupational Health Advisors DC Deborah Clarke, C’s TU representative (Unison) at material times DS Derek Scrimger, Head of Function for Scene Examination, appointed C’s first line manager from around January/ February 2022 FD Fiona Douglas, Director of Forensic Services in R (Tribunal witness) IC Ivan Cunningham, Operations Crime Manager (OCM). C’s third line manager and Grievance Officer (Tribunal witness) KM Karen Maginnis, Capability Team Manager (CTM) and Organisational Wellbeing Champion who provided welfare management support to C from around 3 February 2024 in connection with the management of C’s sickness absence from that date LB Lynn Brown, CEO of the Scottish Police Authority LM Lynsey McPherson, Strategic HR Lead (HR Support during C’s 2023 absence) (witness) SB Stuart Bailey, CTM, and C’s first line manager from around late July 2023
Issues to be determined
[3]Remedy has been hived off to be determined at a subsequent hearing in the event C succeeds in some or all of her complaints. The parties had prepared a draft List of Issues which was not agreed in its entirety. Based on the draft as well as further discussions and clarifications during the preliminaries on 15 August 2025, throughout the hearing and in submissions, the issues are identified as follows: Disability and knowledge thereof[4]R accepts that C was a disabled person at all material times in respect of her anxiety and depression for the purposes of section 6 of the Equality Act 2010 (EA) in respect of that condition. R further accepts it knew or could reasonably have been expected to know that C had the disability of anxiety and depression through the period between 22 February 2024 and the date of the complaint (30 July 2024). As a shorthand in this judgment, the concept that R could reasonably be expected to know something is often referred to as ‘constructive knowledge’. Failure to make reasonable adjustments[5]C says R had the following PCPs in the period (at least) from 22 February 2024 to 30 July 2024:a. A PCP that grievances be conducted in accordance with R’s Grievance Process. R accepts it had this PCP.b. a PCP that C work with the individuals / managers involved in the Employment Tribunal case C brought against R in 2020 (4102183/2020) alleging direct sex discrimination and harassment. R accepts it had this PCP.c. a PCP that any return to work should be managed in accordance with R’s return to work policies and procedures. R accepts it had this PCP.d. a PCP that C should attend meetings to discuss R providing managerial support and a safe working plan without anyone to accompany her (PCP4). R disputes it had this PCP. Did R have such a provision, criterion or practice at the material time?e. a PCP that C should comply with any new changes made by R to the way in which C carries out her role. R accepts it had this PCP.f. a PCP that C be paid her full pay during the first 26 weeks of absence followed by 26 weeks at 50% of full pay. R accepts it had this PCP (although it is not disputed between the parties that C received certain extensions to her periods both of full pay and half pay).[6]Did the PCPs or any of them put C at a substantial disadvantage compared to somebody without C’s disability in that C was put to an increased risk that her anxiety would be made worse by the application of the PCP, in turn increasing the risk of C being absent from work, in turn increasing the risk of C being subject to R’s absence management / capability processes, in turn increasing the risk of C being sanctioned under those processes, in turn increasing the risk of C being dismissed through those processes. R disputes this.[7]Did R know or could it reasonably have been expected to know that C was likely to be placed at the disadvantage? C says R had this knowledge or constructive knowledge from at least 22 February 2024 when Dr D produced an OH report. R disputes this.[8]In each case, what steps could R have taken to avoid the disadvantage? C suggests the adjustments set out at paragraph 146.[9]Was it reasonable for R to have to take those steps or any of them? R disputes it was reasonable for R to have to take any of the steps.[10]If so, when? R disputes that it was reasonable for R to have to take those steps in the period between 22 February and the date of the complaint. R says any duty to take these steps was not triggered because C was not on or before 22 May 2024 (or 30 July 2024) fit enough to work under reasonable[11]Did R fail to take those steps at that time? Findings in fact[12]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or were agreed by the parties. The facts found are those relevant and necessary to our determination of the issues. They are not intended to be a full chronology of events.[13]R is responsible for the statutory delivery of forensic services and to scrutinise the delivery of policing in Scotland by the Chief Constable of Police Scotland. Forensic Services sits within SPA and employs approximately 670 employees across Scotland.[14]C was employed by R from 28 August 2018 and her employment with R was continuing at the time of the hearing. She is and was at material times employed as a Senior Scene Examiner. The role purpose is to undertake examinations at incident scenes to locate, develop, preserve and record forensic evidence. She was employed on a 0.5 FTE contract, working an average of 17.5 hours per week. As narrated in more detail below, since April 2022 C has been in attendance at work for very limited periods totalling around 4 or 5 months between April 2022 and August 2025 due to a combination of sick leave and periods of maternity leave. Since April 2022, during the periods at work, C has spent little time deployed on duties attending incident scenes due to a number of factors related to the availability of suitable equipment and the requirement for training during such periods to reintegrate C fully into the operational side of the role. C enjoys the duties and responsibilities of the role which she describes as her ‘dream job’. February 2020 – April 2022[15]On 17 February 2020, C submitted an internal grievance about an allegation about her then first line manager, Gordon Young (GY). C also presented a claim to the Employment Tribunal against R alleging direct sex discrimination and harassment (4102183/2020) (the 2020 Case). The 2020 Case named GY, CTM Stirling, and other employees of R. C alleged that GY had, at a regional management meeting with a number of colleagues present, discussed C in a way which was contrary to section 26 of the EA (sexual harassment or harassment related to sex). C alleged her confidential medical information was disclosed by GY during these comments. C alleged there was no interjection from others present to halt the discussion.[16]The other individuals alleged to have been present were: Suzanne Dearden (Service Delivery Manager), Mark Heron (Projects), Iain Harkness (Operations Crime Manager), Liesel Beveridge (CTM Glenrothes) and Angela Bruce. These individuals along with GY are hereinafter referred to as ‘the 2020 Six’. Victoria Morton (Chief Operating Officer) was not named in the 2020 Case but was involved in dealing with C’s grievance of February 2020. (The job titles ascribed to these individuals may not be the titles held in 2020, but were their titles as at July 2023).[17]The 2020 Case was disputed by R.[18]A COT3 was entered by the parties on 23 December 2021 in full and final settlement of the 2020 Case without admission of liability by R. The 2020 Case was dismissed pursuant to its withdrawal under terms agreed in the COT3.[19]I do not reproduce the wording of the COT3 in its entirety, however, some pertinent terms are excerpted or summarised. Among other things, the COT3 expressly settled any personal injury or injury to feelings claims concerned with or associated with the 2020 Case and complaints made by C up to the date of the COT3 including C’s grievance dated 17 February 2020 as well as subsequent written complaints she had made dated 11 September 2020, 28 February 2021, 28 February 2021, 26 March 2021 and 29 April 2021.[20]Under the COT3 terms, C undertook that she would not communicate any disparaging or derogatory statements concerning R’s employees. Under its terms, C also agreed to withdraw and not to re-raise or to pursue future claims, grievances, concerns or complaints relating to the subject of the 2020 Case, or claims, grievances, concerns or complaints previously made by C (up to the date of the COT3).[21]The COT3 contained paragraphs numbered 11 and 13 in the following terms: 11. The Claimant’s present line management arrangements whereby she reports to Derek Reid will continue for as long as reasonably practicable, and the Respondent will seek to ensure that this line management arrangement will continue for six months from the date of this agreement. The parties acknowledge and agree that these line management arrangements are dependent on factors such as the continuing availability of Mr Reid, which cannot be guaranteed. In the event that there is a reorganisation or some other situation arises where the Claimant’s line management arrangements require to be reviewed, the Claimant will be consulted at the time of any proposed change and in accordance with the Respondent's organisational change standard operating procedure. The Respondent will seek to identify within 28 days of the date of this Agreement an alternative line manager for periods when Mr Reid is not available. The Claimant’s views on potential alternative line managers are invited to assist this process. … 13. The Claimant’s HR records will remain under the current restricted access arrangement by the Respondent for a further 12 months commencing 1 December 2021.[22]There was no agreement or undertaking in the COT3 that contact would be restricted between C and any of the 2020 Six.[23]FD, Director of Forensic Services, was made aware at the time of the existence of the COT3 because she required to provide authorisation for payment by R of a sum thereunder. However, FD was not provided with a copy of the COT3 and did not otherwise know its contents at that time. FD was likewise aware that there was a claim being settled by the COT3 but was not provided with a copy of the 2020 Case and knew little of the detail of that claim.[24]Following the settlement of the 2020 Case, C has retained a mistrust of R and many of the managers with whom she has had dealings. That mistrust remained deeply ingrained throughout the period with which this claim is concerned and indeed at the time of the hearing in August 2025.[25]A few weeks after the COT3 was signed, in or around January 2022, C’s manager, Derek Reid left, and C’s line manager was changed to Derek Scrimger (DS). C was unhappy about DS’s appointment. In January 2022, C also raised other concerns about alleged breaches of the COT3 terms including regarding access to C’s HR SCOPE record.[26]On 21 April 2022, C commenced a maternity leave period which lasted twelve months. April 2022 – October 2023[27]During her maternity leave, on 21 October 2022, C made a flexible working request. She was unhappy with the manner in which this was approached by DS, including delays in dealing with the request pending organisational changes.[28]On 30 November 2022, DS emailed C regarding a proposal to remove restrictions to management access to C’s HR SCOPE record. C protested at this. DS took advice and confirmed that he would keep the arrangements in place. (The COT3 had provided for restricted access for 12 months commencing 1 December 2021).[29]C was unhappy at what she viewed as delays in DS’s handling of revisions she needed to her flexible working request following organisational changes.[30]In December 2022, while she remained on maternity leave, C engaged with her GP in relation to what she has described as severe anxiety and PTSDlike symptoms. C was prescribed Propranolol, a beta-blocker.[31]In February 2023, C had counselling and CBT therapy.[32]On 6 April 2023, C submitted a flexible annual leave application under which she wished to carry forward a portion of accrued annual leave to the next leave year (24/25).[33]On 11 April 2023, C was unhappy about DS raising in an email correspondence the question of restrictions to C’s HR records. She considered changes had been authorised by DS which were contrary to the COT3 terms.[34]On 12 April 2023, C was unhappy that Lara Lee (Operations Crime Manager), Louise Nixon (Service Delivery Manager) and Wendy McIntyre (HR Advisor) intervened in relation to phased return arrangements for C’s return from her maternity leave which C had discussed with Derek Reid.[35]On 18 April 2023, C wrote a ‘letter of concern’ to the Deputy Director of HR, Nicky Page and Gordon Brown raising her concerns. She said she did not wish to raise a formal complaint against DS, Louise Nixon and Wendy McIntyre ‘at this point’. In that letter, C said that incidents involving DS, Louise Nixon and Wendy McIntyre had resulted in “severe relapse of workplace induced mental or physical health deterioration and the emergence of PTSD like symptoms.” Among other matters, C also requested that any contact from GY and Liesel Beveridge (both of the 2020 Six) be restricted to written correspondence. C did not make any equivalent request at that time in respect of DS, Louise Nixon or Wendy McIntyre. C also asked for a phased return and the continued restriction of her HR Scope records. This is referred to as the April 23 Grievance by way of shorthand though C did not style it as a ‘grievance’.[36]C’s maternity leave ended on 19 April 2023. C commenced a period of sick leave from 20 April 2023 which continued until 16 August 2023.[37]During C’s sick leave, On 24 April 2023, Lynsey McPherson, People Partner, replied to the correspondence containing the April 223 Grievance. She advised FD would investigate C’s concerns about conduct by DS, Louise Nixon and Wendy McIntyre. With respect to C’s three requests, she said “we will prioritise these matters for discussion but commit to the status quo for the next four weeks”. Lynsey McPherson had no previous dealings and little knowledge of C before around 20 April 2023 when she was asked to be involved with the April 23 Grievance. LM was loosely aware that C had had a previous grievance but hadn’t been involved and did not know the subject matter. She wasn’t aware of the 2020 Case. LM had no prior awareness of C’s health.[38]C was unhappy that R was treating her complaint as a grievance. She was unhappy that Nicky Page had passed her letter to LM and she was unhappy that LM had in turn passed it to and discussed it with FD. She wrote to R on 29 April 2023, expressing concerns about this.[39]On 3 May 2023, C asked for a meeting to discuss her concerns.[40]Around this time, R was working on organisational changes to the structure of Forensic Services.[41]C was referred to OH in April 2023. An OH report was prepared dated 4 May 2023. C did not consent to it being shared with LM or FD. In the report, Dr D recommended that a phased return be agreed over a period of 8 weeks, with the first four weeks being focused solely on office-based duties. She also recommended a stress risk assessment and limited contact with the managers involved in the 2020 Case (of which Dr D suggested there were four in C’s team following the restructure).[42]A meeting took place on 29 June 2023 attended by C, FD, DC and LM at the Unison Offices. The purpose was to discuss the issues raised by C in the April 23 Grievance. At C’s request, the meeting was described as an ‘initial meeting’ as opposed to a ‘grievance meeting’ as C found the word ‘grievance’ triggering. At the time of the meeting, C had not consented to share the OH report of 4 May 2023 with FD or LM so that was not available to discuss during the meeting. During the meeting C became anxious and increasingly agitated, occasionally using coarse language in exasperation. C terminated the meeting early. During the meeting, FD declined C’s proposal that her April 23 Grievance should be dealt with by an independent fact-finding investigator.[43]On 3 July 2023, pursuant to the organisational restructure, Stuart Bailey, Capability Team Manager (SB) was appointed as C’s new first line manager. C was unhappy that she considered this was not done and communicated in accordance with the terms of her COT3 (para 11). C was also unhappy when she discovered in July 2023 that Iain Harkness, Operations Crime Manager, and one of the 2020 Six, would be placed in her chain of line management as her third manager and someone to whom she could potentially have to report in her first and second line managers’ absence. C found this triggering and experienced an increase in her stress and anxiety symptoms.[44]C is one of 71 Forensic Scene Examiners, sitting in a team of 10. Forensic Services is a 24/7 operation. The structure, at least following the reorganisation in 2023, was such that Scene Examiners, as well as sitting within their own teams, were also organised into shift groups across different sites in Scotland, which shift group would work the same or similar hours at different sites. Scene Examiners report to CTMs. CTMs report to SDMs. OCMs sit above and manage the SDMs. Above OCMs, there is a Head of Function (S&R), a Director of Forensic Services, a Chief Operating Officer and the CEO of SPA.[45]CTMs work shift patterns which mean that only a proportion of them are on duty at any given time and that a Scene Examiner’s assigned manager may not always be on duty during the rota hours worked by each Scene Examiner in their team. Work is allocated to Forensic Services by a centralised Team of Tasking Officers. Because of the reactive nature of the work, there is no advanced notice of what a scene will involve, or which team will be deployed to it.[46]Allocation of a particular Scene Examiner to attend a scene may depend on their proximity, their hours left on duty, their standby status and their previous exposure to traumatic incidents. It is possible for teams from different locations to be deployed to a scene, for example if there is a major incident under the ‘national deployment model’ adopted. This carries with it the possibility of operational interaction between Scene Examiners from different teams and of operational interactions between Scene Examiners and CTMs who are not their normal first line managers. At a scene, a Scene Examiner must communicate with all stakeholders involved and must cooperate with fellow Scene Examiners and CTMs / higher managers to support the operation.[47]Operational contact between Scene Examiners and SDMs is less likely but SDMs may step in to support CTMs on operations at incident scenes from time to time. There is therefore also a (more remote) possibility of interaction between Scene Examiners and SDMs who are not their allocated second line managers during deployment to a scene. Interactions between Scene Examiners are more senior managers (i.e. OCMs and above) is much less likely to occur in an operational context and, when it occurs, is more likely to take the form of written communications.[48]On 25 July 2023, C met with LM and FD to discuss return to work arrangements. DC accompanied C to the meeting as her TU representative. At this stage, FD and LM had still not had sight of the OH report dated 4 May 2023, which C had not consented to share with them although they were aware of its existence, and it was referred to during the meeting. C was unhappy with how this meeting went and considered her concerns were repeatedly disregarded or dismissed. During the meeting, C became heightened at FD’s continued insistence that Iain Harkness should remain in her line management chain as her third manager. This caused C severe visceral distress. C felt it difficult to regulate her anxiety in response to this prospect and was agitated, panicked and felt sick to her stomach.[49]In the meeting, FD said the next step was to look at the OH report and recommendations and C replied that she was happy to do that directly with her agreed line manager. FD proposed Stuart Bailey (SB) as C’s new first line manager and Ashley Addison (AA) as her second line manager (SB’s line manager). C indicated she would require to discuss this with her TU rep. C confirmed she was happy for AA to be her second line manager.[50]During the meeting, FD advised that she anticipated that C would have minimal contact with Gordon Young (CTM), Liesl Beveridge (CTM), Iain Harkness (OCM) and Suzanne Dearden (SDM), all of whom were in the 2020 Six. FD further advised she anticipated C would have minimal contact with Victoria Morton (COO) who investigated the February 2020 grievance. FD likewise advised she anticipated C would have minimal contact with Louise Nixon (SDM) and Lara Lee (OCM) whose intervention in relation to proposed phased return arrangements from C’s maternity leave had been the subject of complaint by C. FD also advised she anticipated C would have minimal contact with Derek Scrimger (Head of Function) and C’s former first manager about whom she had complained. It was not envisaged at the time by FD that any instruction would be given to any of these individuals to restrict contact with C but rather that, in light of the team structure, the requirement for C to interact operationally with these colleagues was likely to be minimal. Because of the national deployment model, however, it was not out of the question, particularly in relation to CTMs and SDMs.[51]C complained about having IH as her ‘third line manager’, i.e. Ash Addison’s line manager. Later, FD confirmed that Ivan Cunningham, OCM, (IC) would be C’s ‘third’ line manager in place of Iain Harkness.[52]C met her new first manager, SB, prior to her return to work. C sought to explain her concerns about return to work to SB. C was unhappy at SB’s response which she felt was dismissive of the context to her absences and return.[53]C returned to work on 15 August 2023. She returned on a phased basis in accordance with Dr D’s recommendation. A stress risk assessment was carried out in accordance with DR D’s recommendation.[54]On 23 August 2023, C filed a new Flexible Annual Leave application. She had concerns about the way in which SB dealt with his and she enlisted the support of DC who corresponded with SB on her behalf about it.[55]R had at material times a nominated Wellbeing Champion called Karen Maginnis (KM) who also has a management role as a CTM. On 26 September 2023, C arranged to meet with Karen Maginnis in her capacity as an organisational Wellbeing Champion. C had not informed her second line manager, AA, about the meeting. The meeting overran and C missed two calls and voicemails from AA. C texted back and returned to her base in Gartcosh then went home. C did not listen to AA’s messages that day. The following day, C listened to the messages in which AA expressed concern that she did not know C’s whereabouts. C called AA on 27 September and explained to her that a private meeting had overrun. AA said she needed to know what type of meeting it was. C became anxious and told AA she was not comfortable with discussing it further.[56]C was on annual leave from 28 September to 16 October 2023. C scheduled a further meeting with KM. C asked KM to amend the duty rota so that C would be able to attend. KM did so. This prompted AA to contact KM to ask why she had done this. C believed that AA also asked KM about the previous wellbeing meeting. C was very unhappy about this contact from AA to KM which she considered a breach of confidentiality.[57]In terms of her mental health, C had been undertaking IESO led therapy, from which she was discharged In October 2023.[58]On 17 October SB emailed C about arranging a meeting with her in person. C had concerns about this, given her concerns about how SB had interacted with her since becoming her line manager. On 18 October 2023, C asked for an urgent meeting with AA. AA agreed to meet. C wrote down a statement to read to AA, setting out her concerns. She read the statement to AA. She had concerns about AA’s response. AA suggested she was going to deal with matters with SB (as AA’s direct report) and also that she was going to report C’s concerns to senior management. C was unhappy at this and told AA that reporting had already been done to FD and that AA did not need to take further actions.[59]AA construed C’s complaints during the meeting on 18 October 2023 as C raising a grievance on 18 October 2023 (the October 23 Grievance). AA understood C to be alleging that SB had been sexist towards her and that AA had interrogated her and interfered with her access to well-being support.[60]C went off on sick leave from 25 October 2023 until 28 November 2023. In the period between her return to work on 16 August 2023 and the commencement of her sick leave on 25 October 2024, C did not have face to face or verbal interactions with any of the 2020 Six. Nor did she have face to face or verbal interactions with Lara Lee, Louise Nixon, Victoria Morton or Derek Scrimger. 28 November 2023 to 3 February 2024[61]C returned to work on 28 November 2023.[62]On 7 December 2023, C raised a formal grievance addressed to Lynn Brown, CEO (the December 23 Grievance). The letter alleged victimisation, harassment and ‘discrimination for making protected disclosures and having a protected characteristic’. It was said to be raised against “Scottish Police Authority Forensic Services and Police Scotland People and Development Functions”. It named the FD (Director of Forensic Services) and Nicky Page (Deputy Director of People and Development). C’s evidence to the Tribunal was that this grievance ‘included the actions and behaviours of’ Lynsey Mcpherson, Ash Addison, Ivan Cunningham and Stuart Bailey. None of these individuals was identified by name in the original letter. The letter made a series of allegations of acts and omissions by Forensic Services and by People and Development.[63]There were 26 paragraphs of allegations expressed in high level terms which lacked specification of the incidents, the individuals involved or the dates of the incidents. The final page included the following text: Given the serious nature and extent of the grievance, complexity of circumstances within which the Grievance arises and to protect myself from further victimisation and harassment, I will not, at this time, provide full content and context nor significant supporting evidentially information. I will await initial acknowledgement from yourself, along with early engagement on next steps and finally the appointment of a fully independent investigation manager. … I trust that on receipt, this Formal Grievance and Public Interest Disclosure declaration will remain confidential. No further dissemination should be actioned until such times as explicit and prior consent is gained from myself to mitigate against additional harm or reprisal. All related correspondence, unless otherwise stated, should be directed / copied to my Trade Union Representative...[64]LB abided by C’s preference for confidentiality and did not disseminate the grievance to the two individuals named within it (FD and Nicky Page) or otherwise.[65]At the material times, R published a grievance procedure. It included a formal and an informal procedure for dealing with grievances. It included, in relation to formal grievances, the following text (at the material time i.e. from 7 December 2023 to 30 July 2024): 2.4 Executive/Senior Management team2.4.1 If a grievance involves a member of the Executive/Senior Management team, the issue will be dealt with by a more senior officer or manager. The officer or manager will be chosen by the Chief Executive (SPA) or Chief Constable. If this is not possible, due to the seniority of those involved, the grievance will be dealt with by either the Chief Executive (SPA) or Chief Constable.2.4.2 If a grievance concerns the Chief Executive (SPA) or Chief Constable, the issue should be referred to the SP Board. Any appeal would be heard by the chairperson of the SPA Board.2.4.3 Sometimes we might have to involve an independent partner organisation.[66]R’s practice was that it would usually deal with grievances internally and would only rarely appoint an external investigator in exceptional circumstances.[67]IC, C’s third manager, was asked to investigate the complaints which C had made to AA during the meeting on 18 October 2023 (the October 23 Grievance).[68]In late 2023, C agreed to IC obtaining an up to date OH report as part of the process of investigating the Grievance. On 20 December 2023, C withdrew this consent.[69]The December 2023 Grievance was not progressed or elaborated upon by C prior to C’s next spell of sick leave which began on 3 February 2024. LB did not in this period disseminate its contents to FD or N Page, as C had requested. In this period of attendance at work between 28 November 2023 and 3 February 2024, C did not have face to face or verbal interactions with any of the 2020 Six. Nor did she have face to face or verbal interactions with Lara Lee, Louise Nixon, Victoria Morton or Derek Scrimger. 3 February 2024 – 30 July 2024[70]C went off sick from 3 February 2024 and remained off sick until 3 January 2025 (when she commenced a period of maternity leave). At some stage in or around February 2024, C asked AA if K Maginnis could oversee the management of C’s absence. AA agreed.[71]In February 2024, C sought further GP and Community Health Nurse engagement and was prescribed the anti-depressant Trazadone. C was referred to Mindspace for counselling therapy.[72]On or about 8 February 2024, DC passed to LB a file of evidence in connection with the December 23 Grievance. On doing so, concern had been expressed by DC on C’s behalf about the confidentiality of the contents of the file. Evidence was not led about the contents of this file or any individuals named within it. LB did not pass a copy of this file to FD.[73]On 16 February 2024, FD issued a Report and Outcome letter in relation to C’s April 23 Grievance. FD declined to uphold this grievance about DS, Louise Nixon and Wendy McIntyre.[74]On 16 February 2024, C lodged an appeal against FD’s outcome in relation to the April 23 grievance. She sent this to LB, CEO, and asked that it should be read in conjunction with her December 2023 Grievance.[75]At some stage in February 2024, LB proposed mediation through ACAS to which C agreed.[76]During her period of sickness absence which commenced 3 February 2024, , C attended an OH consultation with Dr Dobrowolska on 22 February 2024. On the same date, Dr D prepared a report to R following a consultation with C (the Dr D Report). This was shared initially with KM. KM, as a CTM, was not sufficiently senior to authorise or agree a number of the adjustments identified in Dr D’s report. C did not give KM authority to share the report with more senior management at the time when it was shared with KM.[77]The report included the following text: Current Situation She returned to work in August 2023, but has felt abused and unsupported, believing her managers breached policies and failed to provide support. Meetings have been conducted in what she perceives as a highly unfriendly and unsupportive manner, leading to a panic attack and miscarriage she attributes to severe work-related stress. She sought support from the Wellbeing Champion, trade union representatives, and HR. Her anxiety escalated to the point where she required her GP to sign her off work. She is currently on anti-anxiety and antidepressant medication, with dosage adjustments ongoing. She receives support from a CPN and has been referred for therapy and possibly psychiatry. Ongoing symptoms include anxiety, nightmares, flashbacks, and a possible diagnosis of PTSD. Given her current condition, she is unfit for any work. Her return will depend on resolving the workplace situation. … 3. Is this individual fit to carry out their normal duties at present? No, she is not. 4. When is a return to work likely? Please outline anticipated timescales. I would expect this to be at least weeks, perhaps even a couple of months, depending on the resolution of the situation in the workplace and her response to treatment / therapy. … 6 Could the individual undertake light / alternative duties? Yes - as advised above, … 8. Is the medical condition likely to be classified as a disability under the Equality Act 2010? In my opinion, from the information available to me, it would seem likely that the disability provisions contained within the Equality Act 2010 would be applicable in this case, although as you are aware, the definitive decision in relation to matters pertaining to the Equality Act is a legal, rather than a medical one. … 11. Are there any adjustments that the employer could make to support the individual at work or help facilitate return to work? We have discussed the recommended workplace adjustments, and as her condition is likely to be classified as a disability under the Equality Act, I would strongly advise taking them into consideration. The aim of these adjustments is to acknowledge the cause and effect of working circumstances on health and to mitigate the risk of future harm. It is also to establish a mutually respectful, supportive, and dignified approach to interactions, procedures policies, and operational roles by fully considering the needs, requirements, and health of the employee. Firstly, ongoing managerial support is crucial for establishing a safe management plan. Additionally, she requires someone to accompany her during meetings, including those hailed via phone or video calls. It is important to document what has been discussed and agreed upon for clarity and reference. Establishing points of contact with HR and assigning a single person within the trade union as a point of contact can ensure confidentiality and effective communication. Any new implementations should be discussed with her to keep her informed. For the grievance process, she requests an independent person, preferably external to the employer or at least to the Forensic Department to ensure an unbiased opinion. A stress risk assessment should be conducted, as advised before. Her return to work should be gradual, over approximately 8 weeks, with details discussed with her manager to balance her well-being and operational requirements. She also expressed a need to be updated on work actions during the formal procedure, so we agreed on updates every four weeks to benefit her. I also want to emphasise, as before the importance of safeguarding and ensuring that she has minimal contact with the managers involved in her initial case in 2020, as continued interaction is likely to worsen her mental health. I recommend limiting contact with these individuals to only what is strictly necessary, with all communication preferably in written form unless phone contact is operationally necessary. She requests an extension to full pay status for all her absences until a satisfactory resolution of her situation has been achieved; This should be reviewed at the time of any future work related absences. The implementation of an agreed upon and supported plan for reintegrating her into her operational role, which includes immediate training, any necessary refresher courses, supported deployment, and consideration of her needs is likely to be a benefit. I would suggest scheduling a meeting with the employee to discuss further actions. I would like to emphasise that the work related issues are not solely medical matters; they are significant barriers to her mental health improvement and eventual return to work.[78]On 3 March 2024, under R’s usual policy, C’s pay was due to be reduced to half pay. However, C applied for an extension which was granted by FD initially for the period to 31 March 2024. On 11 March, FD extended C’s full pay to the end of March 2024. FD later authorised a full pay extension to 30 June 2024. Around 3 March, FD was provided with a heavily redacted copy of Dr D’s report of 22 February 2024 in connection with C’s sick pay appeal. All substantive content was redacted, including Dr D’s recommended[79]On 11 March 2024, while she remained on sick leave, C became aware that GY (one of the 2020 Six) had been appointed as an ‘alternate’ line manager to act as a management contact for C at times when C was on duty but SB was not. On her return to work, in SB’s absence, C could, therefore, be expected to engage with GY on certain matters where immediate management input was needed. C raised this in writing with James Hawkins, SDM, who had implemented the change. This was part of a wider measure which was taken and which did not only affect C. JH explained that it had been decided that, should an individual’s line manager not be in the business on a day when one of their reports reported absence or returned to work after absence, two alternative line managers would receive notification so that a manager could conduct the necessary welfare checks. JH explained that he was unaware this could impact on a member of staff’s health or have a legal implication. He explained the change had been made in good faith. C asked JH for more information about whether the there was senior management oversight of this and whether the CTMs were made aware which members of staff they would oversee. JH did not respond to these enquiries.[80]C felt ambushed by the notification of GY’s appointment to this role. She felt significant distress and humiliation at this news and at the need to raise it and complain about it to have the proposal changed.[81]On 13 March 2024, IC issued a grievance outcome in respect of the October 23 Grievance about AA and SB. He declined to uphold the October 23 Grievance. IC had spoken to SB, AA, Gemma McCusker and Connor Richardson as part of his investigation. C was invited to participate in the investigation but declined.[82]On 15 March 2024, FD proposed a meeting with C through C’s TU rep, DC, to discuss C’s sickness absence. On 16 March 2024, DC responded to say she and C were working through Dr D’s report and would make contact in due course.[83]During the material period from 22 February to end July 2024 it is not established that R operated a practice whereby C was required to attend any meetings for the purposes of discussing R providing managerial support and a safe working plan without anyone to accompany her. No such meetings took place during the material period though one was proposed by FD on 15 March 24. In the previous year, when such a meeting had taken place in July 2023, C was permitted to be and was accompanied by her TU rep, DC. It is not established that during the period from 22 February to end July 2024 R had a practice of declining to document meetings for the purposes of discussing R providing managerial support and a safe working plan. No such meetings took place in the relevant timeframe. In the previous July, when such a meeting had taken place regarding a previous return to work from sick leave, R documented the meeting in a lengthy typewritten note.[84]At the material times, R published a policy called Disability in Employment. Nothing in it precluded R from implementing phased returns to work from long term sick leave. R had implemented a phased return for C when she returned to work in August 2023. Its usual practice was to do so when an employee was returning from long term sick leave and where the OH advice supported this. Nothing in the policy precluded the conducting of a stress risk assessment for an employee returning to work after a long absence or otherwise where the circumstances warranted this. Nothing in the policy precluded an employee from being accompanied at any meetings during absence to discuss R providing managerial support and a safe working plan on the employee’s return to work. Nothing in the policy precluded the documenting of meetings to confirm discussions. Nothing in the policy precluded the provision of 4 weekly updates on work matters to an employee.[85]It is not established that anything in any other policy published by R which bore upon returns to work from sickness absence precluded any of the measures mentioned in paragraph 84 above.[86]At some stage between 17 March 2024 and 16 April 2024, a full unredacted version of Dr D’s 22 February report was shared with FD.[87]On 19 March 2024, C sent Lynn Brown a letter of appeal against IC’s grievance outcome in relation to the October 2023 Grievance.[88]In April 2024, C discussed with KM her health and the question of her fitness for duty. During that conversation, C discussed with KM how she felt she could return to duty once reasonable adjustments were in place. C gave KM a proposed return date of 8 May 2024, when her fit note was due to expire. KM marked this conversation in C’s HR absence records. C’s HR records were restricted at C’s request and were not visible to IC or FD.C did not authorise KM to share the discussion with more senior management including FD. KM did not do so. FD was not aware of a suggested return date of 8 May 2024. C was aware that KM, given her level of seniority within the organisation, was not empowered to authorise some of the adjustments which had been recommended in Dr D’s report. She knew KM could not without senior management authorisation implement the restrictions on contact with the 2020 Six or authorise the instruction of an external grievance investigator or select the individuals to be allocated to C’s management chain.[89]On 7 April 2024, while still off sick, C presented a further claim to the Employment Tribunal on 7 April 2024 alleging victimisation and unfair treatment because of pregnancy / maternity (4104553/2024) the (2024 Victimisation Case).[90]On 16 April 2024, DC sent to LB a document in anticipation of an ACAS mediation session to take place the following day. In it, C proposed that direct line management responsibilities for her would be shared between SB and KM. She proposed her ‘alternative’ first line manager would be Kirsty Denholm (to fulfil the role James Hawkins had inadvertently proposed to assign to G Young for C in March 2024). She proposed her second line manager be Martin Fairley and her third line manager be Adrien Service.[91]With respect to Dr D’s recommendation about accompaniment at meetings, C’s document said “The “need” for such accompaniment and who will provide this will remain at my discretion at any material time and should not be denied or restricted.”[92]With regard to Dr D’s recommendation about establishing points of contact with HR, etc, C’s document said: “Due to the complexities of circumstances and involvement of senior persons an ongoing process is coupled with difficulties in the current P&D systems of working. A named point of contact must be agreed so that all P&D required actions, requests and amendments are executed directly by said named person. All communications / decisions must be taken in consultation with me and my agreed line managers / trade union only. No other persons should give instructions / direction or authority to P&D”.[93]With respect to Dr D’s recommendation about the grievance investigator, C’s 16 April document said: “Only an externally resourced independent investigator is acceptable.”[94]With respect to Dr D’s recommendation about the need to be updated on work actions, C’s 16 April document said, “Regular updates regarding all processes / investigation progression or lack thereof must be communicated no more than every four weeks.”[95]With regard to Dr D’s recommendation about a stress risk assessment and the recommendation about a supported plan for reintegration into her operational role, C’s 16th April document said: “The measures required in manner of returning to work / duty will be solely discussed with and implemented by agreed line management. Dynamic assessment of progression and / or difficulties will be maintained by agreed line management and requirements of further amendments / adjustments to ease transition and reintegration will be managed within agreed line management structure only.”[96]With regard to Dr D’s recommendation about limiting contact with the managers involved in the 2020 case, C’s 16 April document said, “In addition to the requirements … as stated by Occupational Health, this remit should also be extending to all currently named persons within pending grievance / Employment Tribunal proceedings. Simple notifications to these persons (a full list can be provided on asking) with simple instructions; to limit / avoid in person interactions within the business; to utilise written correspondence or communication via agreed line management and in the likely event of “on duty / on-call” requirement to engage directly this should be directed through agreed available line management or utilising C3 for call out or operational required communications / instruction similar to that of the contingency plans previously implemented in the absence of a Senior Examination Supervisor during the West Region night shift duty.... SDM Ashley Addison must not base herself within the separated SCC [Scottish Crime Campus] Gartcosh, Scene Examination offices / spaces on Tuesdays / Wednesdays (my contracted duty days). SDM Addison should attempt to utilise other available Forensic Service space within SCC Gartcosh on these days so that full access without undue intimidation / interaction can be gained to all Scene Examination spaces while on duty. Professional pleasantries should be prioritised to maintain safe working environment.”[97]At the material time, AA (SDM) was based for the majority of her working time in the Scottish Crime Campus in Gartcosh.[98]The ACAS mediation proceeded on 17 April 2024. No resolution was reached on that date. There was correspondence in the period after the mediation to seek to continue to progress matters between DC and FD but this was ultimately unsuccessful. Agreement was not reached on the adjustments for C’s return. In the absence of a global agreement on all matters, nothing discussed was treated as agreed or implemented.[99]On 23 April 2024, C’s TU rep, DC, emailed FD. She asked that C be moved from ‘sick leave’ to ‘Disability Leave’. She said, ‘Fiona is only prevented from returning to work because the required reasonable adjustments are not yet agreed and in place. There are two OH reports that state clearly what the reasonable adjustments need to be to facilitate a return to work. Disability leave will ensure Fiona is paid full wages …’[100]On 29 April, FD responded that R did not have an option for Disability Leave. She noted the two OH reports had ‘until recently’ been significantly redacted. She noted she had not seen the referral and observed it would be helpful to do so.[101]On 1 May 2024, C learned that KM would be leaving the function that included Crime Scene Examination on 18 May 2024. C discussed with KM the matter of who might take over C’s line management and they identified that Grant Mather, a CTM based in Govan would be well placed to do so as he and his senior management chain were not implicated in or aware of prior grievances. Though this was discussed, both were aware that KM did not have the seniority or authority to decide the matter.[102]On 9 May 2024, C submitted a further fit note to cover the period from 9 May 2024 for two months because of ‘work related stress’. In the fit note, Dr Jones ticked the box to say, “you are not fit for work”. In the comments section, he said: “Occupational Health reports and advice for return to work’.[103]There was ongoing discussion in email correspondence between DC and FD about C’s line management arrangements and the capacity in which KM was involved. C regarded her as a line manager along with SB whereas FD characterised her as a welfare support contact.[104]On 9 May 2024, FD had still not seen the referral which had resulted in Dr D’s report of 22 February 2024. On that date, she told DC she wished to re-refer C to OH under a new referral with specific questions around C’s communications with colleagues and whether these were impacted by C’s condition and possible PTSD symptoms. DC replied the same day to say her position was that R had two OH reports ‘that provide sufficient details to move forward’. Correspondence between FD and DC was becoming increasingly contentious around this and other matters over this period.[105]On 12 June 2024, DC emailed FD. Among other matters, she said: ‘… I wanted to remind you that the only reason FA remains off work as per the medical certificate dated May 9th is because the reasonable adjustments recommended by OH are not in place.’ DC asked FD to clarify which of the reasonable adjustments were deemed unreasonable and why and asked her to propose alternatives.[106]On 12 June, C initiated Early Conciliation with ACAS. As at that time, the December 23 Grievance remained outstanding and unactioned, attempts to resolve this at mediation having been unsuccessful. There was also an outstanding appeal against the October 23 Grievance.[107]On 12 June 2024, C also submitted a formal grievance to LB alleging FD had failed to implement reasonable adjustments, that she had failed to maintain C’s full pay, and that she had failed to remain engaged in conciliation to find resolutions (the June 24 Grievance).[108]On 27 June, L Brown wrote to DC about the matter of C’s June 24 Grievance and the December 23 Grievance. She said in relation to the June 24 Grievance about reasonable adjustments that she proposed putting the grievance on hold until the conclusion of the Tribunal claim. She also said the following: I do not consider it appropriate at this stage to appoint an independent grievance investigator. However, the way you have worded your e-mail would suggest it is his mandatory that I do so.... I would welcome your explanation of what makes you think this is the case? I also do not understand your statement that I must “remain independent of the investigation at this stage”. Indeed, the Grievance procedure provides that in the circumstances here the grievances to be dealt with by me or someone appointed by me (2.4.1).[109]DC responded on 28 June 2024 and suggested there was another case where due to complexities an independent firm were appointed to investigate. She said “this case is a direct comparator” and “we seek no less than parity with the existing case…”[110]C went on to half pay from 1 July 2024 and remained on half pay until the date of the claim on 30 July 2024. FD declined to authorise any further extension of full pay on 6 June 2024.[111]On 2 July 2025, DC emailed FD and said, among other matters, ‘Fiona remains, and has been for many months now, ready and able to return to a safe workplace, subject to the OH reasonable adjustments being in place. To be clear, the only issue preventing her return is the failure to agree your OH providers reasonable adjustments…We have still not received, despite repeated requests, details of which OH reasonable adjustments you cannot support and why…’[112]On 25 July DC confirmed the OH referral FD wished had been made by KM. There had been dispute in the correspondence between DC and R about who should make the referral in circumstances where R disputed that KM was C’s line manager. There had also been dispute over the wording of the referral. The referral was ultimately made by KM with R’s agreement and included the wording FD wished to be included.[113]Throughout the period from 22 February to 30 July 2024, no meeting took place to discuss C’s return to work aside from the failed mediation meeting (which may not have been exclusively for the purposes of discussing the issue of adjustments for a return to work in circumstances where there were other outstanding grievances in play at the time). Other than the matter of sick pay, where FD had decided on 6 June not to extend full pay beyond 30 June 24 and matter of the independent grievance investigator, where FD had indicated on 27 June 24 that she didn’t propose to appoint an external, no decision was communicated about the adjustments C sought. R did not take active steps to implement any of these, for example, by sending C a stress risk assessment to complete or preparing a draft schedule of dates for a phased return. However, with the exception of the sick pay point and the grievance investigator point, R did not between 22 February and 30 July 2024 do anything incompatible with a decision to implement the adjustments. C remained on sick leave throughout the period mentioned and when C presented the claim on 30 July 2024, R’s position was that it was awaiting further OH advice and that it had sisted C’s internal grievance about reasonable adjustments pending an anticipated Tribunal claim. Period after the claim was presented on 30 July 2024[114]The next OH assessment took place on 12 August 2024 further to the referral which had been made on 25 July 2024. There was little new information in the resulting report. Dr D recorded that that there was no change in her advice and that “[C’s] current work absence appears related to a significant deterioration in her psychological wellbeing which has been triggered by workrelated stress”. The report also stated: “She reports no problems with communication with others, including her colleagues at work or managers, and has never been diagnosed with any behavioural issues... I would like to advise again that she cannot have communication with the … individuals involved in the original case from 2020, as this causes significant anxiety, depression and deterioration in her mental health.”[115]On or about 21 August 2024, pursuant to an Order made by EJ Walker in the course of the present proceedings, C provided a ‘disability impact statement’ in which she described her health circumstances against the limbs of the test for disability. In particular, she described how her mental impairment of anxiety and depression had affected her day-to-day activities in the period from 22 February 2024 to 22 May 2024. She described among other matters, sleep disturbance, tiredness affecting concentration for long distance driving, avoiding socialising, avoiding leaving the house, struggling with a previous hobby of reading, a lack of motivation, erratic eating habits. A copy of the Disability Impact Statement was provided to FD soon after 21 August 2024.[116]On 7 October 2024, FD wrote to C about the adjustments she was seeking, and confirmed as follows:a. SB would line manage C on her return but that, for an initial threemonth period on her return, KM would continue to work with SB to support C’s reintegration.b. FD did not agree to C being accompanied at ‘all meetings’. (At that time the adjustment contended for had not been narrowed as it now has in C’s FBPs to limit it to the category of meetings set out at paragraph 146(a)(iii) below).c. Notes of meetings could be provided.d. FD declined to identify a dedicated point of contact in HR.e. Changes would be communicated to C by her line manager. (At the time, Dr D’s recommended adjustment regarding new ‘implementations’ had not been narrowed as it now has in C’s FBPs as set out in paragraph 146(a)(v) below).f. FD did not commit to appoint an independent external grievance investigator.g. A stress risk assessment would be undertaken.h. Routine updates on work could be provided in monthly one to ones with C’s manager.i. FD declined to restrict contact between C and other work colleagues. She set out a list of 18 individuals who she understood to be covered by C’s request and invited C to provide comment if the list was not accurate. (C did not respond to this and did not provide the more restricted list which was set out in her FBPs dated July 2025 and which is reproduced below at paragraph 171.)j. FD declined to maintain C on full sick pay but extended C’s period of half sick pay by almost three months (to end November 2024).k. FD confirmed that refresher training would be provided during C’s phased return to work.[117]C did not return to work but remained signed off sick until 4 January 2025 when she commenced a period of maternity leave. Observations on the evidence[118]I have not made findings on the merits or otherwise of C’s complaints and grievances against R which I understand to be contentious matters. It is unnecessary to do so to decide the issues before me. With respect to the chronology set out in my findings in fact, I understand there to be relatively little in dispute between the parties. As one might expect, conflicting views were expressed in the evidence of C and that of R’s witnesses about the reasonableness of the adjustments contended for and of R’s approach.
Relevant Law
[119]There is a duty in certain circumstances on an employer to make reasonable adjustments in relation to a disabled employee. Relevant provisions are contained in section 20 of the EA as follows:(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 reasonably practicable to have to take to avoid the disadvantage. …. 21 Failure to comply with duty (1) A failure to comply with the first … 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[120]Section 212(1) of EA states that ‘substantial’ means ‘more than minor or trivial’.[121]Schedule 8 of the EA provides at para 20: 20(1) A is not subject to a duty to make reasonable adjustments if A does not know and could not reasonably be expected to know -(a) In the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;(b) In any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[122]Where A is the employer, Part 2 of Schedule 8 provides that ‘an interested disabled person’ is an applicant for employment by A or an employee of A.[123]Section 136 of EA deals with the burden of proof. It provides, so far as material, as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) … (6) A reference to the court includes a reference to— (a) an employment tribunal; …”[124]The effect of section 136 is that, if the claimant makes out a prima facie case, it will be for R to show an explanation which is not prohibited conduct. In the context of reasonable adjustment claims, the initial burden of proof lies with the claimant to identify the relevant PCP relied upon and show that it placed them at a substantial disadvantage in comparison with non-disabled persons and to suggest what steps it would have been reasonable for the employer to take to avoid that disadvantage (Project Management Institute v Latif [2007] IRLR 579 EAT). Once a claimant has established these matters, the burden of proof shifts to the respondent to show that the duty to make adjustments did not arise (for example, because there was no substantial disadvantage or the employer did not know and could not reasonably have been expected to know of the disability and disadvantage) or that the steps contended for were not reasonable in all the circumstances.[125]The term “PCP” is not given statutory definition within the EA, nor was it defined in the predecessor Disability Discrimination Act 1995 (DDA). The EHRC code states at paragraph 6.10 that a PCP “is not defined by [the EA] but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”[126]The PCP is a concept which is not to be approached in too restrictive a manner; as HHJ Eady QC stated in Carrera v United First Partners Research UKEAT/0266/15 (7 April 2016, unreported), 'the protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted'.[127]In Roberts v North West Ambulance Service UKEAT/0085/11, the EAT confirmed that a claimant might be put at a substantial disadvantage by a PCP even where they are not themselves required to comply with it. Mr Roberts, who suffered from a social anxiety disorder, was exempted from hot-desking and given his own reserved desk. Nonetheless, he could claim to be put at a substantial disadvantage since when he sometimes found someone sitting at his desk on arrival, which caused him stress.[128]While a liberal and generous approach is to be applied to the interpretation of the PCP, it is nevertheless important that the identification of the 'provision, criterion or practice' is approached with care, particularly where parties are legally represented throughout. An employment tribunal cannot properly be criticised for determining the claim on the basis it was put to them and on the basis of the way PCPs have been framed in an agreed list of issues at a hearing at which both parties were represented (Yorke v Glaxosmithkline Services Unlimited [2021] WL 04104443, EAT).[129]In Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216, CA, the Court of Appeal ruled the nature of the comparison exercise under s.20 is clear: one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able-bodied.[130]The EHRC Code of Practice on Employment lists factors which might be taken into account when deciding if a step is a reasonable one 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.[131]The financial cost of making an adjustment and the impact on the employer's particular financial situation can go to the reasonableness of an adjustment (e.g. Aleem v E-Act Academy Trust Ltd UKEAT/0099/20).[132]The ‘reasonableness’ of an adjustment is to be assessed by a Tribunal objectively (Smith v Churchills Stairlifts plc [2006] IRLR 41). It is not necessarily met by an employer showing that they believed that the making of the adjustment would be too disruptive or costly (paragraph 45). The adjustment contended for need not remove entirely the disadvantage (Noor v Foreign and Commonwealth Office UKEAT/0470/10). In Royal Bank of Scotland v Ashton 2011 ICR 632, EAT, the EAT stressed that in addressing the issue of reasonableness of any adjustment the focus has to be on the practical result of the measures that can be taken.[133]An employee need not show that the reasonable adjustment would be effective to avoid the disadvantage. However, for an adjustments claim to succeed it must be shown that there was a real prospect that the adjustment would make a difference – Hindmarch v North East Ambulance NHS Foundation Trust [2025] IRLR 672. Any proposed adjustment must be one which has a real prospect of preventing the disadvantage in order to be an adjustment that the employer is placed under a duty to make (Romec v Rudham UKEAT/0069/07/DA).[134]In G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15 the EAT held that the fact that a particular adjustment may be unpopular with other employees is an unattractive reason for failing to implement it. The claimant in the case suffered from back problems and was given a role as a ‘key runner’ while retaining his original salary as an SLM engineer. The employer later proposed a reduction in salary for the role in recognition of the fact it did not require engineering skills of the kind a SLM Engineer had. The Tribunal found there had been a failure to make a reasonable adjustment in not maintaining the preferential rate of pay. It rejected the employer’s argument that paying Mr Powell at the higher rate would cause discontent amongst other employees if they came to know that there had been given this special treatment. There was no evidence before the Tribunal of any complaints nor of anyone being employed in the same position as key runner. The EAT found the tribunal had not erred in law. It observed that the objection of the likelihood of discontent from other employees was an unattractive reason, and the Employment Tribunal was entitled to reject it for the reasons it had given.[135]In Hill v Lloyds Bank Plc UKEAT/0173/19, the EAT upheld a finding that it was a reasonable adjustment for the employer to give an undertaking that a disabled employee suffering from reactive depression would not have to work with two individuals who she had alleged had bullied and harassed her. The claimant was employed by the bank for over thirty years. She had a period of sick leave of over a year for stress which she said was caused by bullying and harassment perpetrated by her line manager and second line manager. She brought a grievance against them which was not upheld. She did not want to work for these two managers, and they also did not want to work with her.[136]When she returned to work, she returned to the Bank’s Bristol office while her former line manager worked in Glasgow and her former second line manager worked in London. The claimant was happy working in Bristol and had no problems with her work, line management or anything else connected to her role there. She was, however, anxious that in the future she may have to work with either of the two managers. One of them was soon after selected for redundancy and had left the organization by the time of the Tribunal hearing.[137]The PCP was styled as a practice which included not offering members of staff any undertaking or comfort that it will ensure employees are not placed to work with people who have been alleged to have bullied them. The substantial disadvantage asserted was Ms Hill’s constant state of fear that she may be required to work with the two individuals. The EAT upheld the Tribunal’s finding that there had been a failure to make a reasonable adjustment and also held that there was no reason in principle preventing the tribunal from making a recommendation requiring Lloyds to give a written undertaking along the same lines.[138]The EAT has commented that the reasonable adjustments duty is "primarily concerned with enabling the disabled person to remain in or return to work with the employer", or "to enable disabled people to play a full part in the world of work" (e.g, Salford NHS Primary Care Trust v Smith UKEAT/0507/10); Hindmarch. It does not extend to matters which would not assist in preserving the employment relationship. In Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0352/09 (11 March 2011, unreported), the claimant claimed among other things that by failing to look into ill health early retirement, the respondent had failed to make a reasonable adjustment. The EAT overturned the Tribunal’s finding that this omission breached the duty to make reasonable[139]In Nottinghamshire County Council v Meikle [2004] IRLR 703, the employee was a teacher who remained on sick leave for an extended period. The Council had failed to put in place reasonable adjustments and had failed to show that, even if it had made the adjustments, the employee would still have been absent for as long as she was. The Court of Appeal upheld the EAT’s ruling in overturning the Tribunal of first instance; the Council’s decision to put the employee on half pay was an unlawful failure to make a reasonable adjustment. In O’Hanlon v HMRC [2007] IRLR 404, the disabled employee had long periods of absence from her work, mostly related to her disability. The employer had a policy of paying 6 months’ full sick pay then reducing pay to half pay, which the employee argued was discriminatory. She said HMRC failed to make a reasonable adjustment by failing to continue her full pay after six months’ sick leave where the absence was disability related. The Tribunal rejected the claim and the employee’s appeal was ultimately dismissed by the Court of Appeal. The Court of Appeal agreed with the EAT's statement that it would only rarely be a reasonable adjustment to give higher sick pay to a disabled employee than a non-disabled employee. The duty to is designed to enable disabled people to play a full part in the world of work.[140]It has been found that, where there is nothing the employer can do which will have the effect of getting the disabled person back to work, the employer does not have to do anything. In HM Prison Service v Johnson [2007] IRLR 951, EAT, the claimant had a depressive illness. As regards the later period of her employment, it was clear that her condition had deteriorated to a point at which it was not reasonable to expect the employer to make the proposed adjustments (a transfer to other duties). This was so notwithstanding that her health deterioration may have been caused or contributed to by earlier breaches. The claim in respect of that period fell to be dismissed as the duty to make adjustments was said to have fallen away.[141]If an employer does not know and could not reasonably be expected to know that the person has a disability and is likely to be at the substantial disadvantage referred to in the first, second or third requirement, the duty to may reasonable adjustments does not arise (EA, Schedule 8, Part 3, Para 20). However, nothing in the EA provides that the duty to make RAs only arises if an employer knows or ought to know that certain steps are available (Camden London Borough v Price-Job UKEAT0507/06).[142]The question of when a duty to make adjustments is triggered (i.e. from when it becomes reasonable for the employer to have to take the steps to avoid the disadvantage) has been considered in a number of cases where the employee was off on long term sick leave (The Home Office v Collins [2005] EWCA 598, CA, NCH Scotland v McHugh [2006] UKEATS/0010/06/MT, EAT, London Underground Ltd v Vuoto [2010] UKEAT/0123/09/DA, EAT, Doran v DWP [2014] UKEATS/0017/14, EAT). There is no general proposition of law that an employer’s duty to make reasonable adjustments does not arise until an employee indicates that they will be able to return to work (Vuoto, para 125).[143]In Collins, McHugh and Doran, no indication of a return to work date had been identified and it was held the duty to make the adjustments contended for had not been triggered (in Collins, a phased return to work on a part time basis, in McHugh, a reduction in working hours and on call duties, and in Doran, redeployment, a reduction in working days and hours, flexible working and light duties). In each of those cases, the claimant was unwilling or unable to indicate a return to work date and the duty was found not to have been triggered. As HHJ McMullen said of the employee in McHugh, “while she is incapable of all work, it does seem pointless to impose a duty on an employer to make adjustments in case she can return, unless there is some reasonable prospect of that occurring.” It was also a feature of Doran and Collins that the claimants had not indicated a start date or given any other sign they would be returning to work at a particular time.[144]These cases don’t lay down a binding legal principle (see Doran para 43 where Lady Stacey accepts the ET was not bound to follow McHugh and Vuoto, para 125). Whether and when it becomes reasonable to take certain steps is a fact sensitive question. In Vuoto, the claimant was disabled by virtue of Multiple Sclerosis and was ultimately dismissed for what the employer described as medical grounds. A number of PCPs had been identified including the requirement to work shifts in a roster system and to have a certain level of attendance. There was no dispute these placed the employee at a disadvantage and a duty to make reasonable adjustments was held by the Tribunal to be engaged. The EAT upheld the finding that there had been a failure to make reasonable adjustments notwithstanding the absence of a clear return date. Submissions[145]Both Mr Clarke and Mr Miller handed up written submissions which they supplemented with oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decisions in this judgment. Failure to mention any part of these submissions in this judgment does not reflect their lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, which sets out where the submissions were accepted and where they were not with the reasons for this. Discussion and Decision[146]There are 6 PCPs and 12 adjustments. The adjustments contended for can be grouped into 4 broad categories, while acknowledging certain adjustments may straddle the categories. This is my categorisation, adopted for convenience, not one proposed by either party. The articulation of the adjustments is based not only on the Grounds of Claim (GOC) terms, but also on the refinements in the FBPs and further clarifications provided at the hearing.a. ‘Personal Contact Restrictions’ i. R should ensure C should have minimal contact with the managers involved in the 2020 Case and with the others listed at para 29 of the FBPs by instructing those individuals in the terms necessary to achieve this. R should have taken steps (i.e. given the individuals instructions) to limit their contact with C to only what was necessary, with all communications preferably in writing unless phone contact was operationally necessary (the Contact Restriction Adjustment). ii. Ongoing managerial support for a ‘safe management plan’. This refers specifically to steps to ensure C had minimum interaction with the individuals C named at para 29 of her FBPs (see para 14 and 15 of the FBPs). iii. R should allow someone to accompany C during meetings to discuss R providing the support for a safe management plan in reference to steps to ensure minimum interaction with the individuals (para 21, FBPs). iv. R should document what has been discussed and agreed at meetings to discuss the safe management plan which in turn refers to steps to ensure C had minimum interaction with the individuals named at para 29 of the FBPs (see para 22 FBPs). v. R should discuss any new implementations with C and should keep C informed. ‘Implementations’ here refers to reorganisations or other situations where C’s line management arrangements require to be reviewed (para 25 of FBPs, referring in turn to clause 11 of COT3).b. ‘Grievance Management’ i. An independent person should be appointed to investigate the December 2023 Grievance. ii. R should establish points of contact with HR and assign a single person within Unison to ensure confidentiality and effective communication. (C says this adjustment is also relevant to communication and contacts in relation to the other adjustment categories).c. ‘RTW Practicalities’ i. R should conduct a stress risk assessment ii. R should ensure C’s return to work is gradual, over approximately 8 weeks with details discussed with C’s manager to balance C’s wellbeing and operational requirements; iii. R should implement an agreed upon and supported plan for reintegrating C into her operational role, including immediate training, necessary refresher courses, supported deployment and consideration of C’s needs.d. ‘Sick Pay’ i. To pay C full pay while absent from work[147]In her evidence, C has linked certain adjustments to certain underlying PCPs. The PCP about being paid full pay during 26 weeks of absence is linked to only one adjustment (the payment of full pay throughout sick leave). However, other PCPs are said to be linked to multiple adjustments and many of the adjustments are said to be aimed at alleviating disadvantage caused by more than one PCP. Adjustment about restricting contact with individuals[148]I begin by considering the adjustment about restricted contact because, as discussed in more detail below, it is the most critical of all the adjustments sought and the underlying PCP that C work with the individuals involved in the 2020 Case and named in the December 23 Grievance is the most critical of all the PCPs.[149]R does not argue a time bar point in relation to this adjustment, though both parties acknowledge that, in the event a failure is established, it would be necessary for the Tribunal to analyse and identify the date from which time began to run based on section 123 of the EA.[150]However, Mr Miller made a submission that this and all complaints of asserted failures to make adjustments were premature. He said that the duty to make adjustments was not triggered because C was not, on or before 22 May 2024, fit enough to work under reasonable adjustments. He cited Doran and other authorities in support of his position. Mr Clarke disputes that C was unfit to work at the material times. He says that at least from 22 May 2024, if not before, C was fit to and would have returned to work with the adjustments in place. In Mr Clarke’s submission, it is, therefore, unnecessary to get into the authorities dealing with situations where an employee is on long term sick leave (McHugh, Vuoto, Griffiths, Doran). He said that if the obligation to make adjustments did not arise in this type of case, it would make it very difficult for a claimant to return to work and would defeat the purpose of the legislation. Citing Vuoto, Mr Clarke suggested the duty was engaged even in the absence of a clear return to work date and that it may be engaged where there was merely ‘some sign on the horizon’ that the employee would be returning.[151]This is a fact sensitive question. It can depend, I conclude, not only upon the state of health of the employee (though in some cases where there is permanent incapacity for work, that may be decisive) but also on the nature of the adjustment contended for. Sometimes, unless the adjustment is in place the employee will always be unfit to return to work because of the nature of the work (e.g. Archibald) or the workplace. It can be a ‘chicken and egg’ situation. With the adjustment, the employee may be fit and able to work and without it they remain incapable of returning to the work or the workplace. I agree with Mr Clarke that where such adjustments are in contention, the policy of the legislation could be undermined if an employer could claim that the duty was not triggered because the employee remained signed off on a long-term basis.[152]I am not persuaded that C’s complaint about the adjustment of restricting contact with twelve named individuals fails on Mr Miller’s prematurity point. This seems to me to be precisely the kind of adjustment which could fall into the ‘chicken and egg category’. I accept that without this adjustment in place, on balance C would not have been fit to return to work in the period with which this claim is concerned (i.e. to 30 July 2024). This finding and the reasons for it are discussed further at paragraph 178-181. With the adjustment in place, and, most likely, subject to a number of other adjustments also being made, I accept there is some prospect she would have been so. I accept this based on C’s evidence and the implication of Dr D’s comments in her report of 22 February 2024.[153]The failure of the ‘prematurity’ argument in respect of Contact Restriction Adjustment does not necessarily mean it fails in respect of all adjustments for which C contends in this claim. The nature and importance of the adjustments vary substantially. Those grouped under the heading ‘RTW Practicalities’ are, at first blush, those which may most obviously be vulnerable to challenge on the basis of prematurity. However, for reasons explained below, it is not in the event necessary to explore the argument further in the context of those or any other adjustments.[154]I now turn to the limbs of the test. It is undisputed that C was a disabled person at the material times and that R had knowledge or constructive of C’s disability.[155]The principal PCP on which C relies for the Contact Restriction Adjustment is “a PCP that the claimant work with the individuals / managers involved in the 2020 Case and named in the Grievance”. Mr Clarke subsequently clarified at the hearing that the Grievance in the GOC is the December 23 Grievance. The PCP has not been the subject of any amendment or further particulars, though the claimed disadvantage and the parameters of the adjustment contended for have been.[156]In its Grounds of Resistance (GOR), R says “It is most certainly a PCP that that the claimant should work with her colleagues…the respondent calls upon the claimant to specify by name the people covered by her description of “individuals/managers involved in the 2020 Case.” It is nonetheless understood that the claimant would on her return to work be expected to work with some if not all of the names on that list..”[157]A later Order issued on 26 June 2025 required C to provide the following information. (9) …specify by name the people covered by her description of the individual/managers “involved in the 2020 Case”. (10) If it is alleged that there had been at the date of raising the claim a failure to make this adjustment, provide particulars of the occasion/s when there was such a failure …[158]C responded on 3 July 2025 and advised she was referring to a list of 12 people who she named at para 29 of the FBPs (these are set out at para 171 of this judgment, below). In response to para (10) of the Order, C said “The Claimant’s position is that the Respondent did not take steps in the period from 22 February 2024 to 22 May 2024 which would have enabled the Claimant to be reintegrated into her operational role.” She did not provide particulars of any specific occasion when it was said there was a failure. It was also Mr Clarke’s position in submissions that, for the purposes of assessing time bar and the date from which time ran for the purposes of section 123 of EA, that R had done no inconsistent act with a decision to make this adjustment in the period between 22 February and 22 May 2024 (at which stage he said R might reasonably have been expected to do it).[159]R accepts it had an expectation that C “would on her return to work be expected to work with some …of the names…”[160]As she was off sick throughout the relevant period, C was not strictly required to comply with the PCP of working with individuals / managers involved in the 2020 Case and named in the grievance dated 7 December 2023 during that timeframe. However, the fact that C did not have to comply with the PCP during the particular period does not preclude it being a valid PCP. The wording of section 20 does not require that the claimant herself be required to comply with the PCP (Roberts). The critical question is whether it put C at a substantial disadvantage in relation to a relevant matter compared with persons who are not disabled.[161]The disadvantage asserted is the increased risk that C’s anxiety would be made worse which in turn increased the risk of C being absent which increased the risk of sanction or dismissal under R’s absence management processes. R denies that C was put at a substantial disadvantage by the PCP. It is a question of fact. I remind myself that a PCP should be construed widely according to the EHRC Code and a liberal, rather than an overly technical approach should be adopted (Carrera). I further note that PCPs relating to arrangements at work have been held to put employees at a disadvantage including where the claim has been brought during a lengthy period of sick leave when the employee has not been required to comply with the PCP identified during the absence (e.g. Archibald v Fife Council [2004] SLT 942, HL, Vuoto).[162]During her absence, C’s evidence was that she felt ambushed, distressed and humiliated by the news in March 2024 that G Young was to be appointed as an ‘alternate’ line manager to carry out certain management duties for her when her line manager was not available due to shift patterns. Likewise, though it occurred before the material period, it is relevant to recall that in 2023, when as a result of a restructuring, it was proposed that Iain Harkness would be her second line manager, C’s evidence, which I accept, is that she experienced a response involving deterioration in her mental health. She felt it difficult to regulate her anxiety, which left her feeling agitated, panicked and sick to her stomach. Taking into account C’s evidence of her reactions to these developments, I accept that, in general and during the material period (between 22 February and 30 July 2024), C’s symptoms of anxiety were worsened by the prospect of having to comply with the PCP - by the very existence of the PCP. She was at risk of such worsened symptoms regardless of whether, at the specific times, she was actually physically required to work with the individuals[163]In coming to this conclusion, I also have had regard to Dr D’s comment in her report of 22 February 24 that “I also want to emphasise the importance … of ensuring that she has minimal contact with the managers involved in her initial case in 2020, as continued interaction is likely to worsen her mental health”. I make no finding about whether C’s response to the prospect of interaction with these colleagues was rational or justified or whether her complaints about the individuals was founded. It is unnecessary to do so to decide the issues before me.[164]There is a comparative dimension to the question of whether C was put to a substantial disadvantage. I remind myself that substantial here merely means ‘not trivial’. I acknowledge that a person not disabled by virtue of depression and anxiety would likely also experience a measure of anxiety and apprehension at the prospect of interacting with individuals in the workplace about whom they had made complaints. However, having regard to C’s description of her symptoms in response to the prospect, I accept, on balance, that the disadvantage she experienced was appreciably more significant than that which would be experienced by an individual without C’s disability. I, therefore, conclude that R’s PCP put C at a substantial disadvantage compared with persons who are not disabled by virtue of having anxiety / depression.[165]The next question is whether R knew or could reasonably have been expected to have known that C was placed at the disadvantage. With respect to the 2020 Six, I find that R knew or could reasonably have been expected to have known this. It was set out by Dr D in her February 2024 report that continued interaction with the managers involved in the 2020 Case was likely to worsen C’s mental health. Additionally, FD was aware of C’s response and state of agitation in July 2023 when she met with C during a previous period of absence for work related stress when the prospect of I Harkness (one of the 2020 Six) being in C’s management chain was discussed.[166]Less clear, however, is that R knew or could reasonably have been expected to have known that working with the individuals named or implicated in the December 23 Grievance also put C at a substantial disadvantage compared with persons who were not disabled by virtue of depression / anxiety. Dr D did not refer to other individuals in her report or opine that continued interaction with them was likely to worsen C’s mental health. The evidence of R’s knowledge or constructive about this was limited. At C’s insistence, the December 23 Grievance was not passed by LB to FD (known by C to be the decision-maker on adjustments).[167]The December 23 Grievance itself named only FD herself and Nicky Page and not others whose names appear in the list of individuals from whom C seeks contact restrictions. There was evidence about a further file being supplied to L Brown in confidence on or about 8 February 2024 with information in support of the December 23 Grievance but there was no evidence about the contents. It was not passed to FD (known by C to be the decision maker on reasonable adjustments), following DC having expressed concerns to LB about its confidentiality.[168]There was evidence that FD had seen on 16 April 2024, a document C prepared for a mediation process in which C said Dr D’s recommendation about the 2020 managers should be extended to ‘all currently named persons within the Grievance / Employment Tribunal proceedings’. That document did not, however, contain any information about the impact upon C’s mental health associated with the expectation that she work from time to time with the other individuals beyond the 2020 Six.[169]It is one thing to know that C wished an adjustment put in place whereby there would be restrictions on contact with a wider group of people. It is another to know that C was placed at a risk of worsened anxiety symptoms from a requirement to interact with those extra people. I am not persuaded that from the mere fact of C’s request for this extended restriction or from any other evidence about the information R had before it at the material times, R had knowledge or constructive knowledge that C was likely to be placed at risk of worsened anxiety symptoms as a result of a requirement to work with the individuals named in the December 2023 Grievance.[170]C has identified the PCP and established the necessary ‘substantial disadvantage’. She has also established knowledge or constructive knowledge of that disadvantage with respect to the PCP, however, only insofar as it relates to the 2020 Six. In light of those findings, I turn to the question of what steps it was reasonable for R to take and from when.[171]The adjustment for which C contends is as follows (FBPs, para 15, p.71). At the hearing it was clarified that the adjustment sought was an instruction to the individuals to effect the restrictions. ‘15… R should have taken steps to ensure that C had minimum interaction (so far as reasonable) with those persons referred to at paragraph 29 herein (so far as operations would allow)…R should have taken steps to limit C’s contact with these individuals to only what was necessary, with all communication preferably in writing unless phone contact was operationally necessary, … 29. C is referring to … namely(1) Gordon Young – Capability Team Manager [one of the 2020 Six](2) Iain Harkness – Operations Crime Manager [one of the 2020 Six](3) Lara Lee – Operations Crime Manager(4) Liesl Beveridge – Capability Team Manager [one of the 2020 Six](5) Suzanne Dearden – Service Delivery Manager [one of the 2020 Six](6) Mark Heron – Projects [One of the 2020 Six](7) Angela Bruce – Senior Forensic Scene Examiner [one of the 2020 Six](8) Fiona Douglas – Director of Forensic Services [named in Dec 23 Grievance](9) Lynsey McPherson – P&D People Partner(10) Gordon Brown – P&D People Partner(11) Ashley Addison – Service Delivery Manager(12) Ivan Cunningham – Operations Crime Manager[172]I refer to this list as ‘the List’ and the individuals thereon as ‘the Listed Individuals’.[173]By section 20(1)(b) of Schedule 8, the duty is not triggered were the employer could not reasonably be expected to know that C was likely to be placed at the substantial disadvantage. R was not subject to any duty in relation to those six Listed Individuals who were not the 2020 Six. It is not for the Tribunal to seek to reframe the adjustment contended for or cherry pick the names on the List to a smaller number in respect of whom the adjustment might stand more prospect of being found to be objectively reasonable. The adjustment contended for is not objectively reasonable because the List extends well beyond the 2020 Six and indeed beyond those named in the December 23 Grievance with which the PCP is concerned. It extends substantially beyond what could be necessary to alleviate the substantial disadvantage “of which R had knowledge / constructive knowledge.” It is excessive and not objectively reasonable in light of the conclusion that R lacked knowledge / constructive that the PCP was likely to place C at a substantial disadvantage insofar as it related to individuals who were not in the 2020 Six. The complaint that R breached section 20 by failing to make the adjustment contended for as reproduced at para 171 above, is therefore not well founded and is dismissed.[174]However, even if R had the requisite knowledge / constructive knowledge of C being likely to be placed at the substantial disadvantage with respect to all Listed Individuals, I would in any event have found that the Contact Restriction Adjustment was not objectively reasonable. Alternatively, if the adjustment had been reframed and restricted to refer only to the 2020 Six or to the 2020 Six, I would also still have found that it was not a reasonable step for R to have to take.[175]The reasons I would have reached these conclusions are as follows:a. The adjustment contended for by C was not merely that R should organise its teams and C’s management structure so as to reduce the likelihood of contact between C and the individuals on the list. Measures had already been taken in that regard by the time this claim was brought. Indeed, there was no evidence that C had actually had to work face-to-face or by phone with any of the 2020 Six. This was not entirely by chance but, to a fair degree, by design. G Young had ceased to be C’s first manager after her 2020 complaint. R had later responded to C’s complaint about a proposal to appoint Iain Harkness as her third manager and substituted someone else. Likewise, when C protested in March 2024 that G Young may be reintroduced to have a limited involvement in her management, R had not insisted on that structure. The failure C complains about in these proceedings goes beyond an asserted duty to contrive its structures to reduce the likelihood of contact through team design etc. It is that restrictions be implemented by the issue of a specific instruction to each of the individuals to limit their contact with C. It is a more onerous step.b. In deciding whether the adjustment is objectively reasonable, it is appropriate to balance C’s interests with R’s interests as well as the interests of other employees of R affected by the adjustment while acknowledging, of course, that the duty to make adjustments can uniquely and quite properly entail more favourable treatment of a disabled person.c. C had shown a strict approach to maintaining her confidentiality including restrictions on which managers were permitted to view her HR records and who was entitled to know about her grievances. She had complained in different contexts about breaches of confidentiality and expressed concerns about dissemination of her information when raising complaints. There was no evidence before me or before R, at the material times, that C was or would have been willing to permit R to share sensitive medical information or information about her grievances with the Listed Individuals in order to provide them with context to the instructions she says R ought to have given to the Listed Individuals. A number of the Listed Individuals were not aware at the material time of the existence of a grievance or complaint about them because of C’s insistence that such complaint be kept confidential. IC, for instance, was unaware that he was subject of any complaint, or that he was on the List until he was cross-examined during the hearing. To implement the adjustment, R would have required to give the Listed Individuals a bald instruction and would have been unable to provide meaningful answers in the likely event that they questioned the reasons for the restriction.d. It is likely, that on receiving an instruction of this unusual nature, at least some of the individuals would have taken exception to the instruction and would have felt, with some justification, that it carried an implication they had done something culpable to warrant such a heavy-handed command. It is likely that some of the individuals would have complained about the instruction and the implication of their wrongdoing, particularly in circumstances where they would not have information about C’s health circumstances and may not have been informed of a complaint against them. If they were aware that C had made complaints about them, they may complain that they had not had the opportunity of defending themselves against such allegations in the normal way. It is likely they would have perceived that R had reached conclusions about their culpability. In those circumstances, it is likely that some or all of the individuals may have raised complaints / grievances / subject access requests in response to the matter. R would have encountered difficulties in managing such complaints and balancing these protests against C’s medical confidentiality.e. Even if nobody complained and the Listed Individuals were willing to comply with such a management instruction, it would not be objectively fair to them. Such an opaque instruction would have had the capacity to stoke resentment and undermine morale for the Listed Individuals affected (and possibly beyond). In some cases, C’s complaint about a Listed Individual related to the manner in which that individual had carried out their managerial duties or their HR remit, whether that be dealing with a grievance or an application under one of R’s policies. It is reasonable to suppose that they would perceive that they were being sanctioned for the way in which they had carried out these duties and may feel reticent in the future about performing such duties.f. It should not be inferred from the foregoing that conclusions have been drawn about the merits of C’s complaints about the Listed Individuals or otherwise. If individuals are suspected to be guilty of culpable conduct at work, an employer such as R has procedures including established grievance and disciplinary procedures for dealing with these, designed to safeguard the rights of the employee and ensure principles of natural justice are observed. In the circumstances of the present case, I conclude that the proposed imposition of unusual restrictions on individuals outside of those processes is problematic.g. The parameters of the instruction that contact should be restricted to that which was ‘operationally necessary’’ would have been open differing interpretations by C and by the various putative recipients. The instruction would have brought scope for disputes about whether particular circumstances did nor did not warrant contact. The instruction would run the risk that a Listed Individual may shy away from contact with C even where it may be viewed by senior management as ‘operationally necessary’.h. With respect to the 2020 Six, C had entered a COT3 in which she had committed not to re-raise or pursue future concerns or complaints relating to any matters which were the subject of the claims or grievances up to 23 December 2021. She had received a sum of money in exchange, among other things for that undertaking. By asking R to tell the 2020 Six to restrict contact with her because of their alleged conduct in 2020, it is highly arguable that C was re-raising or pursuing concerns about that prohibited subject matter. The adjustment sits uneasily certainly with the spirit and potentially also with the letter of the COT3. I do not find that this in and of itself renders the adjustment objectively unreasonable. It is, nevertheless, a factor among others which weighs in assessing the reasonableness of the adjustment.i. I have carefully considered C’s rights and interests in the matter as a disabled person keen to be able to return to her workplace and what she has described at times as her ‘dream job’. It is acknowledged that for C, the absence of the Contact Restriction Adjustment would run a real risk that her anxiety symptoms would have worsened. I find that, in the absence of the adjustment, she would not have been fit to return to her workplace, at least in the period with which this claim is concerned and perhaps not at all on any sustained basis. I do not diminish that reality for C in coming to this assessment. I do not reach this conclusion readily or with enthusiasm.j. In weighing the factors to decide whether the adjustment is objectively reasonable, I further acknowledge that the instruction proposed would be operationally ‘doable’ in the sense that Forensic Services would not be prevented from delivering its service in the event of the Contact Restriction Adjustment between implemented between C and the Listed Individuals. It would not be without difficulties, particularly in relation to the CTMs and SDMs on the List because of the national deployment model, but it would be ‘doable’. I also accept that there would not be any immediate financial cost to R in giving the instruction (though for the reasons outlined above, there may well be longer term ‘soft costs’). Notwithstanding these points and the effect on C’s symptoms, I conclude for the reasons above that, in all the circumstances, the adjustment contended for is not reasonable, applying an objective standard.k. I have considered the caselaw set out in the Relevant Law section, and in particular, the cases examining the assessment of the reasonableness of adjustments. I conclude that the consideration of other employees’ interests in this case is distinguishable from the facts and circumstances of G4S Securitas v Powell (see para 134). The observation of the EAT about disgruntlement of other employees being an unattractive reason for not implementing an adjustment was made in circumstances where the source of potential disgruntlement was the application of pay protection to a disabled employee doing a lower skilled role than that usually commensurate with the salary being paid. There was no evidence of any employees being directly affected by the adjustment -i.e. doing the same role for less money - or (at the time) even having awareness of the claimant’s pay protection. That is quite different from the present situation where 12 employees would be directly affected by the adjustment contended for. Unlike in G4S, they would be expected to be mindful of and, as necessary, to modify their communications and interactions at work on the basis of it. A further distinction in that there was no scope for the other employees in G4S to infer a conclusion that their employer has found criticism or culpability in relation to their actions by introducing the adjustment.l. I am satisfied that this case is distinguishable from Hill v Lloyds Bank Plc (see paras 135-137). This case was not cited by the parties, but given its arguable parallels, I comment briefly on it. Hill did not set down any principle of law of general application. Again, it is distinguishable on the facts from the present case. In Hill, there were only two employees involved who worked at different offices to the claimant, and ultimately only one individual for whom contract restrictions would be required on any long-term basis. The adjustment sought was much less far reaching in terms of the numbers affected. In Hill, there was also a mutual preference from all three concerned that they did not wish to work together again. The work with which they were concerned was not reactive as it is for R’s operational work, but was project based. At the time of the asserted failure, Ms Hill was successfully working in a different office from the two managers complained about with no problems with her new line management or with her role. It is fair to observe that the circumstances of C’s case give weaker grounds for optimism about the long-term efficacy of the adjustment contended for. The implications of the finding regarding the Contact Restriction Adjustment for the remainder of C’s claim[176]Mr Miller made the assertion that, in this case, all adjustments had to be in place for a return to work. It is, he says, “literally an all or nothing case”. I don’t accept the proposition in quite this unqualified form. Though Dr D did not identify any hierarchy in her report, it is clear from the evidence before me that some of the adjustments were more fundamental than others. The Contact Restriction Adjustment of instructing limited interaction by the Listed Individuals with C was the most fundamental of the adjustments sought in this case. Mr Clarke indeed referred to this as the ‘main adjustment’ on a couple of occasions.[177]I part ways with Mr Miller on his all or nothing point to the extent that complaints about some of the lesser adjustments may not determine failure of complaints about the more substantive adjustments. One could envisage a scenario, for example, in which C’s health might have improved sufficiently to return to work if R had implemented the Contact Restriction Adjustment but had not yet sent out a stress risk assessment document or had not provided C with four weekly updates on work actions. However, the converse is not true.[178]I have found that R did not breach section 20 by declining to instruct the Listed Individuals to minimize contact with C in the way proposed. I also find on the balance of probabilities that, in the absence of this Contact Restriction Adjustment being made, C would not have returned to work.[179]On balance, I conclude that the risk of worsened anxiety symptoms would not have been alleviated sufficiently for her to do so, even if R had made all of the eleven remaining adjustments for which C contends. Some of those are plainly of a relatively peripheral nature. I am concerned about what would have happened, on the balance of probabilities, in the period to 30 July 2024 if such adjustments had been in place. Of some assistance is the knowledge of what actually happened with respect to C’s health in the later period. It is known that, on 7 October 2024, R did commit to certain adjustments, namely the stress risk assessment, the documentation of meetings, the phased return, the provision of refresher training and monthly work updates. Following receipt of R’s confirmed commitment to these adjustments, it is known that C’s anxiety was not sufficiently alleviated for her to return to work and that she remained off sick for almost three months thereafter before commencing a period of maternity leave.[180]I gave careful consideration to whether the making of the more substantive adjustments such as the appointment of an external grievance investigator and the agreement of the ‘safe management plan’ might have alleviated C’s disadvantage sufficiently for a return to work to be viable in the absence of the Contact Restrictions Adjustment being made. I concluded, however, that they would not.[181]Threaded through C’s statement of over 100 pages is extensive and repeated reference to what she perceives as R’s failure to safeguard her from the 2020 Six (who she repeatedly refers to as her Sexual Harassers). The theme is pervasive. Nowhere in her statement is there any evidence to support an inference that, in the absence of the Contact Restriction Adjustment, she may have been fit to return with other accommodations. The thrust is very much to the contrary. Historical measures falling short of an instruction, relating to team and management chain design, had not proved sufficient in the past to alleviate the disadvantage. This was so even in the absence of evidence of actual face to face contact with any of the 2020 Six. Neither Dr D’s report, nor the extensive correspondence of C’s TU rep, DC, give support to a view that, during the material period, a return would have been tenable without contact restrictions on the Listed Individuals but with the other adjustments. Both implied the opposite.[182]I acknowledge, in principle, that if it is established that the PCP put C to a substantial disadvantage of which R had actual or constructive knowledge, R had an obligation to take such steps as were reasonable to avoid the disadvantage. I further acknowledge that, to be reasonable, an adjustment need not eliminate the disadvantage; it may be sufficient that it has a real prospect of reducing the disadvantage. It is well established, though, that the policy of the legislation is broadly to enable the disabled person to remain in / return to work with the employer (Smith) and in cases where there is nothing the employer can do which will have the effect of getting the disabled person back to work, the employer does not have to do anything (Johnson).[183]Since R acted lawfully in declining to make the Contact Restriction Adjustment, I conclude that the section 20 duty was not contravened by a failure to make any of the other eleven adjustments. On an objective assessment, it was not reasonable to have to take those other steps in circumstances where taking them would not have alleviated C’s disadvantage, or at least not to an extent of creating a real prospect that C would have returned to work. On this basis, I conclude that C’s complaints about all other asserted failures to make the other adjustments contended for are not well founded and are dismissed.[184]For the avoidance of doubt, the adjustment concerning full sick pay also fails. In Meikle, the absence and loss of full pay had been caused by the employer’s earlier failure to make reasonable adjustments. That is not the scenario in this case.