Ms S Mullen v The Royal London Mutual Insurance Society Ltd: 4106775/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106775/2024

Between

Ms S MullenClaimant

The Royal London Mutual Insurance Society LimitedRespondent

Before

Employment Judge M Robison

Date 5 August 2025

JUDGMENT

[1]The claims under section 47B and sections 44 and 100 of the Employment Rights Act 1996 are dismissed upon withdrawal.

[2]The claimant’s applications to amend, set out in writing in revised particular of claim, and made orally at this hearing, are otherwise granted.

[3]By 10 February 2025:(i) the respondent will lodge any response to the amendment, if so advised;

(ii) the claimant will lodge an updated schedule of loss;

(iii) the claimant will forward to the respondent copies of any additional the documents upon which she intends to rely at the final hearing.

[4]By 17 March 2025 the respondent will provide the claimant with a final joint paginated volume of all documents to be relied on at the final hearing.

[5]A notice of hearing will be issued listing this case for a final hearing in person ETZ4(WR) with a full panel on 7, 8, 9, 10, 11 and 14 April 2025. NOTE OF PRELIMINARY HEARING ON CASE MANAGEMENT ISSUES

[1]The claimant lodged a claim in the Employment Tribunal on 25 September 2024 claiming unfair dismissal, disability discrimination, whistleblowing and health and safety detriment/dismissal. The respondent resists the claims, and in their response argued that the claims were out of time and had no reasonable prospects of success. They argued that the proceedings should be dismissed, the claimant having failed to provide requisite specification.

[2]The claimant in response sought to provide further specification to address the respondent’s concerns, by lodging revised particulars of claim. As is often the case, the respondent then sought to argue that that took the form of an amendment and objected to the amendments being allowed.

[3]A case management preliminary hearing to consider the issues and prepare the case for a final hearing was listed in the usual way. Following the lodging of the amendment application, and the respondent’s intimation of their intention to object to that, they also applied for strike out and/or dismissal of the claim on the grounds of time bar and/or no reasonable prospects of success. Consequently the case management preliminary hearing was converted to an open preliminary hearing to consider the applications, as well as any relevant case management issues.

[4]At this preliminary hearing I had the benefit of agendas prepared by the parties. The claimant’s agenda included further specification of her claims.

[5]At the outset of the hearing, the claimant having raised the matter prior to the hearing, I advised that should she require at any time a break as a reasonable adjustment, then any such request would be considered sympathetically.

[6]No witnesses were called, and as might be expected these applications were dealt with on the basis of submissions alone. That meant, and Mr Gibson agreed, that the claimant’s case would be taken at its highest, that is it should be assumed that the claimant could prove what she offered to prove.

[7]Although it had been lodged late on Friday, Mr Gibson had had helpfully set out comments in response to each of the points made by the claimant in her revised particulars of claim.

[8]Following discussion, we agreed that the best course of action was to consider the amendment application first, and then for Mr Gibson to consider his position in regard to the strike out application after that.

[9]It may be helpful for the respondent’s solicitor to be aware that applications to amend, by party litigants, made in response to requests for further information by respondents, made in the very early stages of proceedings, and here even before the first case management preliminary hearing, are likely to be considered very sympathetically by the Tribunal. That is not least because it is highly likely that any prejudice to the respondent will be negligible. Time bar

[10]Prior to considering the detail of the claimant’s amendment and Mr Gibson’s comments, I raised the issue of the appropriate point at which to consider the question of time bar, not least in light of the recent decision of Lord Fairley in Douglas v North Lanarkshire Council

2024 EAT 194

. Mr Gibson had submitted, and I entirely agreed, that this is one of the types of cases where a decision relating to time bar should be held over until evidence has been heard at a final hearing. That is not least because the claimant will argue that any discrimination was a continuing act.

[11]In regard to issues then for determination at the final hearing, the question of time bar in regard to any or all claims will require to be considered, if insisted upon, after the hearing of evidence at the final hearing. Issues for determination by the Tribunal – Amendment application

[12]We then discussed the proposed amended particulars of claim lodged by the claimant, considering each point and comment made by Mr Gibson in turn. During this discussion, we identified the other issues for determination at the final hearing. Direct disability discrimination

[13]The claimant seeks to add a claim of direct disability discrimination. The claimant had added at 5(a) of the new particulars of claim a reference to an email dated 11 December 2018. Not least because of the time that has elapsed since then, the claimant confirmed that she will not insist on that claim (which is therefore deleted from the particulars).

[14]In regard to the reference to the sales conference in January 2023, the claimant will argue that she was segregated from guests because of her disability. The claimant also seeks to include a claim relating to a grievance interview which took place on 9 July 2024. With regard to the delay in including that in the particulars of claim, she advises that she did not become aware of these events until after she was furnished with documents following a SAR (on 4 October 2024).

[15]In these circumstances, Mr Gibson did not object to the amendment, subject to the time bar question.

[16]In regard to the points included at paragraph 5(b) of the particulars of claim, with the preamble “events forming part of this claim”, the claimant confirmed, following discussion, that such events are not events which she relies on as additional, stand alone claims of discrimination, but rather background events in relation to claims otherwise specified elsewhere. Whistleblowing

[17]With regard to the claim included at paragraph 6, headed up “whistleblowing detriment”, the claimant confirmed that she is not insisting on that claim because she had misunderstood the law as related to the facts. Accordingly, paragraph 6 is deleted and the whistleblowing claim withdrawn and dismissed. Discrimination arising from disability

[18]At paragraph 7(a) of the updated particulars of claim, the claimant sets out her claim for discrimination arising from disability.

[19]Following further explanation from the claimant, it appears that this claim relates to two incidents in particular. One claim relates to the fact that she was put on a performance improvement plan, which the claimant will argue amounts to unfavourable treatment because of something (apparently her erratic behaviour) which she will argue arose in consequence of her disability.

[20]She will also rely on facts relating to being segregated from peers and guests at a conference in early 2023 which she will argue (as an alternative to the direct discrimination claim) was unfavourable treatment which arose in consequence of her disability.

[21]Mr Gibson confirmed that in the circumstances he does not object to the claimant relying on these claims (subject to time bar).

[22]The claimant will also rely on the fact that she was disadvantaged because adjustments requested relating to management targets were not implemented formally. Following discussion, it was agreed that the most appropriate legal claim to apply to these facts is a claim relating to failure to make reasonable adjustments, discussed later.

[23]The claimant also made reference to concerns about the “resolving issues at work policy” and the failure to take her concerns seriously. Following lengthy discussion it is apparent that the claimant makes no stand alone claim in respect of this policy, but she will rely on this as the background to other claims.

[24]Finally the claimant again references incidents in 2018, which she does not rely on, and accordingly the paragraph commencing “In 2018” is deleted.

[25]The claimant then at paragraph 7(b) sets out “events forming part of this claim” which consists largely of a list of dates, which again the claimant confirms relate to background to the claims which she articulates elsewhere. Failure to make reasonable adjustments

[26]With regard to paragraph 8, headed failure to make reasonable adjustments, the claimant spent some time explaining the failures which she relies on from around the time of her second absence in October 2023, specifically(1) the failure to make adjustments to her management information targets formal and to include her in the league tables on a proportionate basis (based on the reduced targets) and

(2) the failure to make formal the working from home arrangement after the end of the pandemic which had been trialled in 2019.

[27]Again, the “events forming part of this claim” at 8(b) are included as background facts. Indirect disability discrimination

[28]Turning to paragraph 9, the claimant sets out her claim for indirect disability discrimination. Following discussion it was agreed that it was apparent that the PCP is the respondent’s absence management policy which the claimant argues results in particular disadvantage. Again, the “events forming part of this claim” are background facts for context. Health and safety claim

[29]The claimant accepted, following discussion, that the claims under section 44 and 100 of the ERA relating to health and safety set out at paragraph 10 are misconceived and so she will not insist on them. That paragraph will be deleted from the particulars of claim and that claim is withdrawn and dismissed. Harassment related to disability

[30]The claimant also makes claims for harassment related to disability, set out at paragraph 11. It was noted that the claimant set out five incidents in the ET1 and a further three allegations are included in the agenda. By reference to the claimant’s agenda at paragraph s.7, following discussion about each incident set out there, the claimant accepted that the conduct does not amount to harassment in terms of the legal definition. While she was unhappy with the outcome of the meetings referenced there, she accepted that the meetings were civil and she was by and large treated with courtesy. Accordingly, she agreed that she would not rely on the first seven bullet points set out in the agenda.

[31]However, it was accepted that it may be that the claimant is able to establish that the “daily publishing of management information to distribution department” is an act of unlawful harassment. Accordingly, in respect of the claim for harassment, this is the only incident upon which she will rely.

[32]At paragraph 11(b) again the claimant sets out “events forming party of this claim” by way of background only. Remedy

[33]It would appear that the section of the updated particulars which is headed “impact” relates broadly to remedy, and the claimant confirmed that it does not include any additional stand alone claims of discrimination. Strike out Application and Amendment to include constructive unfair dismissal

[34]In regard to the respondent’s strike out application, given that the claimant has withdrawn the claims relating to whistleblowing and health and safety, the only remaining concern which Mr Gibson had was related to the claim for unfair dismissal.

[35]It was noted that the claimant had ticked the box on the claim for unfair dismissal, but of course at the time she lodged the claim she was still working for the respondent so a claim for unfair dismissal would not be competent.

[36]She explained during the hearing that she believed that she had to resign following her treatment and in particular the way that the grievance and grievance appeal had been dealt with and the outcome. The claimant advised that she was in fact now claiming unfair constructive dismissal.

[37]Clearly there is no claim currently for unfair constructive dismissal, because the claimant did not resign until after she had lodged the claim and drafted the amendment application.

[38]We accordingly discussed how to deal with that situation. Mr Gibson agreed that if the claimant were to lodge another claim of constructive unfair dismissal now that would be in time. He agreed that was not the most efficient way of dealing with the matter. I advised that I would not normally send an unrepresented claimant away to produce a further written amendment (particularly given recent directions from the EAT) when that matter could just as well be dealt with today.

[39]Following discussion, I record the claimant’s application to amend her particulars of claim to include a claim for constructive unfair dismissal, to which there was no objection, as follows: “The claimant resigned on 18 November 2024. She claims that she had to resign because of the treatment she received, relied on to support her claim of discrimination and set out above. The claimant claims that there has been a breach of the implied term of trust and confidence. The last straw was the outcome of the grievance appeal.” Respondent’s response

[40]Following this lengthy discussion, Mr Gibson agreed that the respondent now has fair notice of the claimant’s claims and any objections to may have had to the amendment have fallen away, subject always to the reservation of the issue of time bar in regard to the discrimination claims.

[41]Accordingly the claimant’s application to amend is granted, to include the claim for constructive unfair dismissal.

[42]The respondent is now granted up to four weeks to respond, if so advised, that is they will lodge any amended response by 10 February 2025.

[43]Once their response has been finalised, it would be helpful if the respondent would draft a list of issues to reflect the discussion at this hearing and their defence. This can be considered by the Tribunal listed for the final hearing at the outset of that hearing.

[44]It will also assist if the respondent could produce a version of the claimant’s particulars of claim based on the above conclusions to include in the final volume of productions. Claimant’s application for strike out

[45]The claimant had made an application for strike out, apparently relating to the respondent’s defence as set out in their agenda. This was overlooked during the hearing. However, the claimant should appreciate, as indicated by the respondent’s solicitor, that such an application is misconceived and could not be considered in any event. Witnesses for final hearing

[46]The claimant confirms that she will give evidence at the final hearing, but will not call any additional witnesses.

[47]Mr Gibson confirmed that the respondent intends to call the four witnesses listed in the agenda. With the addition of the constructive unfair dismissal claim, he advised that it is likely that he will also call Mr Wyatt.

[48]The claimant thought that it would be helpful if the respondent were to call Mr Tim Hazell. She had asked him to give evidence at the hearing but he had declined.

[49]Mr Gibson will give consideration whether the respondent considers it appropriate to call him. In the event that they do not, the claimant should advise if she wishes to call him, and if the respondent objects to releasing him for the hearing, or he is not prepared to give evidence on a voluntary basis, then she will require to make an application to the Tribunal for a witness order. She should explain why she considers that he is necessary to assist her to prove her claim. Thereafter the matter will be considered by a judge if necessary.

[50]With up to six witnesses, and potentially complex background facts, it was agreed that the final hearing should be listed for six days.

[51]The first six mutually suitable dates proposed are 7 to 11 and 14 April 2025.

[52]The final hearing will therefore be listed for those dates, subject to the caveat that should any of the respondent’s witnesses be unavailable for all of the dates listed, then the respondent will revert within seven days to ask for alternative dates to be identified. Procedure at final hearing and panel composition

[53]The final hearing will be in person and take place at the Edinburgh Employment Tribunal. It will include liability and remedy. The claimant will give evidence first.

[54]Following discussion, the respondent expressed a preference for a panel of three, because it is believe that their industrial experience will add significant value to the decision-making process. The claimant was neutral on the point, but happy to accept that the hearing would be before a full panel.

[55]Following consideration, given the subject matter of this claim, I accept that members will add significant value to the hearing. Accordingly, this hearing will be fixed to be heard by a full panel. Documents

[56]The respondent will take responsibility for providing sufficient copies of the files of productions for the final hearing (in accordance with the usual practice).

[57]The claimant has already sent the bulk of the documents which she intends to rely on at the final hearing to the respondent. She will forward any additional documents which she wants included to the respondent within four weeks, that is by 10 February 2025.

[58]A final joint paginated volume of productions will be provided to the claimant within three weeks of the first day of the final hearing, that is by 17 March 2025.

[59]As a decision has been made for this case to be heard by a full panel, four additional copies of the productions will require to be available for the Tribunal and the witness table for the first day of the hearing. Schedule of loss

[60]The claimant has prepared a schedule of loss. Although the claimant has done some research before preparing that schedule, it is evident that she should conduct further research because the sum currently claimed appears entirely unrealistic. The claimant may wish to consult the Citizens Advice Bureau who may be able to assist.

[61]Once she has done further research, the claimant will lodged an updated schedule of loss within four weeks, that is by 10 February 2025. Judicial Mediation

[62]The respondent is not currently interested in judicial mediation. This is understandable because the sums sought in the schedule of loss do not appear to reflect the losses that the claimant claims she has suffered, even in the event she is fully successful. The respondent is however asked to reconsider their position on receipt of the updated schedule of loss, and to liaise with the claimant regarding agreement to make a request for this case to be put forward to be considered suitable for judicial meditation. The claimant should be aware that this is an entirely voluntary process but that both parties must agree. Accuracy of this note

[63]Should either party consider that I have misrepresented what was discussed and agreed at this hearing, they should contact the Tribunal to advise of any corrections or omissions which I will consider.

REASONS

[1]The claimant presented a claim to the Employment Tribunal on 25 September 2024, in which she complained that she had been unfairly dismissed, discriminated against on the grounds of disability, and ETZ4(WR) subjected to detriments on the grounds of having made protected disclosures.

[2]The respondent submitted an ET3 response in which they resisted all claims made by the claimant.

[3]A Hearing was listed to take place on 19 to 23 and 27 May 2025, in the Employment Tribunal, Edinburgh. Owing to the unavailability of the Employment Judge for 19 May due to another commitment, the Hearing commenced on 20 May, and concluded on 27 May 2025.

[4]A Joint Bundle of Documents, comprising 2 volumes, was presented to the Tribunal and was relied upon by the parties and Tribunal throughout the Hearing.

[5]The claimant appeared on her own behalf at the Hearing, accompanied and supported by her husband.

[6]The respondent called the following witnesses:  Tim Hazell, Senior Training and Development Manager;  Claire Fraser, Customer Services Manager for Pensions New Business;  Jason Wyatt, Group Money Laundering Reporting Officer and Data Protection Officer;  Gary Nisbet, Head of Distribution;  Gavin Stark, Regional Distribution Manager; and  Graeme Smith, Sales Manager. List of Issues

[7]Parties provided a List of Issues for determination in this Hearing, as follows: 1. CONSTRUCTIVE UNFAIR DISMISSALa. Was the claimant dismissed? i. Did the respondent breach the claimant’s contract of employment? The claimant asserts that the respondent breached the implied term of mutual trust and confidence. ii. If so, was that breach serious enough to be a repudiatory breach? iii. Did the claimant waive the breach? iv. Did the claimant resign in response to the breach?

b. Was the dismissal fair? i. Was there a potentially fair reason for the respondent’s conduct? ii. If there was, was the dismissal reasonable? 2. REMEDY a. If the claimant’s claim of constructive dismissal is upheld: i. What remedy does the claimant seek? ii. If the claimant seeks reinstatement or reengagement, is it practicable for the respondent to comply with such an Order? iii. What financial compensation is appropriate in all of the circumstances? iv. Should any compensation awarded be reduced in terms of Polkey v AE Dayton Services Ltd

[1987] ICR 142

and, if so, what reduction is appropriate? v. Should any compensation be reduced on the grounds that the claimant’s actions caused or contributed to their dismissal and, if so , what reduction is appropriate? vi. Has the claimant taken reasonable steps to mitigate her loss? 3. DISCRIMINATION – DISABILITY a. Jurisdiction i. Was the claim form submitted more than 3 months (plus the period for Early Conciliation) after some of the conduct complained of? ii. If so, did that conduct form part of a chain of continuous conduct which ended within 3 months of the claim form being submitted? iii. If not, would it be just and equitable for the Tribunal to hear that part of the claim which relates to the conduct which occurred more than 3 months before the claim was submitted? iv. The respondent accepts that the claimant was disabled at all material times by virtue of the following impairments: 1. Borderline personality disorder; 2. Complex Post-Traumatic Stress Disorder (CPTSD); and 3. Anxiety and depression. v. The respondent does not admit that it knew or should reasonably have known that the claimant had a b. Direct Discrimination i. Who is the claimant’s comparator (actual or hypothetical) whose circumstances must be materially the same as the claimant’s? ii. Was the claimant treated less favourably than the comparator was or would have been? The claimant alleges that: 1. In advance of a Sales Conference in January 2023, Gary Nisbet emailed Graeme Smtih asking claimant’s mental health; and 2. Graeme Smith on 9 July 2024 told Claire Fraser that other managers were aware of the claimant’s health conditions so redeployment would be an issue. iii. If so, was the reason for the treatment the claimant’s disability?

c. Discrimination Arising from Disability i. Was the claimant treated unfavourably because of something arising as a consequence of their disability? The claimant alleges that the ‘something arising’ was the claimant’s erratic behaviour. ii. The alleged unfavourable treatment is as follows: 1. Being placed on a Performance Improvement Plan by Graeme Smith; and 2. In advance of a Sales Conference in January 2023, Gary Nisbet emailed Graeme Smith asking claimant’s mental health. iii. If so, what was the reason for the treatment? iv. In treating the claimant in that way, what aim was the respondent seeking to achieve? v. Was that aim legitimate? vi. Was the treatment a proportionate means of achieving that aim or was there a less discriminatory way of

d. Reasonable Adjustments i. Did the respondent apply a provision, criterion or practice (PCP)? The PCPs are: 1. The publishing of management information to the team; and 2. Requiring employees to work from the office. ii. If so, did each PCP place the claimant at a substantial disadvantage in comparison with employees who were not disabled? iii. Did the respondent make reasonable adjustments? The claimant alleges that the respondent failed to make the following reasonable adjustments: 1. To formalise changes to targets in the MI reporting, meaning the claimant always appeared at the bottom of the league tables despite achieving her targets; or 2. Alternatively being removed from the MI reporting; and 3. To formalise the claimant’s working from home arrangement such that she received regular contact from her line manager asking when she was attending the office. iv. The respondent contends that the following adjustments were made to support the claimant:

[1]Not taking any formal action in respect of the claimant’s absence for approximately three years; Regular referrals to Occupational Health;

[3]Access to Employee Assistance Programme and other Mental Health support; Reduced performance targets; Flexibility in working hours;

[6]Flexibility in terms of working from home from July 2019, then during and post-Covid lockdown a regular home working arrangement;

[7]Frequent breaks from work including flexibility to attend medical appointments and to exercise; and

[8]Significantly extended absence trigger points. e. Indirect Discrimination i. Did the respondent impose a PCP? The claimant relies on the application of the respondent’s absence management policy to the claimant. ii. Did the PCP put the claimant at a particular disadvantage in comparison to others? The claimant alleges that the application of the policy resulted in formal absence warnings despite the claimant being more prone to disability-related absences. iii. What was the reason for imposing the PCP? iv. Was the aim of the PCP legitimate? v. Was the PCP a proportionate means of achieving that aim or was there a less discriminatory way of f. Harassment i. Has there been unwanted conduct relating to disability? The claimant alleges that this is the daily publishing of the Management Information to the Distribution Department. ii. Did that conduct have the purpose or effect of: 1. Violating the claimant’s dignity; or 2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 4. REMEDYa. What award should be made to the claimant for injury to feelings?

b. What award should be made to the claimant in compensation for losses? Findings in Fact 8. Based on the evidence led and information provided, the Tribunal was able to make the following findings in fact. It should be noted that the Tribunal has not recorded exhaustively every adminicle of evidence presented by the parties, but has made findings which it considered to be relevant to the issues before it.

[9]The claimant commenced employment with the respondent as an Account Manager with SLP Sales on 14 November 2011, and was offered the post by letter dated 31 October 2011 (202ff). She was required to work in the respondent’s Edinburgh offices, and had no set hours of work, being expected to work such reasonable hours as were necessary to perform her duties subject to the provisions of the Working Time Regulations 1998.

[10]The respondent is a mutual insurance company, operating in the financial sector. The claimant’s duties required her to generate sales for the pensions side of the business, operating under sales targets set by the respondent.

[11]The claimant worked Monday to Friday, 9am to 5pm, and was usually based at the St Andrew Square office of the respondent, until recently when she was moved to the Haymarket Yards office.

[12]The claimant’s starting salary was £24,000 per annum, and was entitled to additional payments made up of uncapped bonuses based on the value of business brought in. She would work with independent financial advisers to provide them with policies and pensions to clients.

[13]At all material times, the claimant suffered from Complex PTSD, Borderline Personality Disorder and Anxiety and Depression.

[14]The claimant’s line manager from approximately 2016 was Gavin Stark. On 8 June 2018, the claimant emailed Mr Stark (211): “Hi Gav. Apologies in advance about this email. I got this confirmation yesterday for a Doctor’s appointment next week. I just wanted to give you the heads up as it will make it easier for me to have a conversation about it on Monday (hopefully). I’ve had PTDS, depression and anxiety issues for about 20 years and over the last couple of years there have been a few triggers that I haven’t dealt with particularly well with which have set me back again. I know that probably doesn’t make much sense but I’ll explain next week once I’ve psyched myself up enough to have the conversation. Have a good weekend x Sharon Mullen Dip PFS”

[15]Mr Stark’s reaction was, she said, “brilliant”, and initially very supportive. He was keen to understand what should be put in place in order to provide the claimant with the right support.

[16]The claimant required to be admitted to hospital as an in-patient for a period of some 6 weeks in July 2018, and was absent until December 2018, when she commenced a period of phased return to work.

[17]With the claimant’s consent, Mr Stark referred her to the respondent’s Occupational Health department (OH) operated by BUPA. OH produced a report to Mr Stark dated 21 December 2018 (218ff), carried out by Mike Cockram, OH Adviser. OH advised that the claimant was fit for her substantive role without any restrictions.

[18]Under “Recommendations on adjustments and support”, OH stated: “At present, Ms Mullen should be offered general help and support at work. The timescale for improvement can often be slow, as the medication has to be altered slowly, and then assessed for effectiveness before further changes are made. Some patient ill be required by the employer whilst this takes place. However, according to Ms Mullen, the psychiatrist has stated that he fully expects the situation to improve when the correct balance has been reached.”

[19]A follow-up appointment was arranged for 22 January 2019. That further appointment took place and generated a report dated the same date. Again, OH advised that the claimant was fit for her substantive role without restrictions. It was reiterated that the claimant should receive general help and support at work, and that the respondent should be aware that while the situation may take time to settle, the medical team was confident that it would do so with a combination of therapy, self-help and medication.

[20]The claimant worked in what she described as a very competitive sales environment, in which each sales manager had particular targets against which they were managed through MI (Management Information, that is, the collection of data relating to the performance against targets)

[21]Her medication caused her to suffer a number of side-effects, and accordingly over time she was taken off Metrazipine, and instead prescribed Sertraline, another anti-depressant.

[22]She also had to deal with the challenge of a 3 hour round commute to the office. She agreed with Mr Stark an arrangement for the first 3 months of 2019 whereby she would work longer hours one day and shorter then next, in order to put in place a situation which would be suitable for the respondent as well as the claimant.

[23]The claimant was referred again to OH by Mr Stark, and was seen on 9 May 2019. OH provided a report dated 10 May 2019 (230ff). The report confirmed that the claimant was fit for work with recommended adjustments or restrictions.

[24]The report went on to set out answers to questions which had been posed by Mr Stark (231): “Is the current sick absence work-related? No – Sharon believes that there are at times situations that may occur at work that increase her symptoms, but that the root cause is not work. Are there any underlying reasons for numerous sickness absences (as detailed) following a weekend and/or period of annual leave? I would suggest that this is discussed with Sharon. She has informed me that there have been occasions when she has requested emergency leave instead of taking sick time and then been unfit to return and this has then continued as sick time. In addition to the above, is there any underlying reason why the absence level has increased over the last 12 months, and is it likely that this will improve in the future? As stated above, it has been the past year that Sharon has sort (sic) professional help and treatment for her symptoms. During this process it can often exacerbate symptoms prior to an improvement. Alongside this she has also as stated had some physical illness. Are there any underlying reasons for the individual’s performance, including appearing lethargic, regularly and particularly at the beginning of the week? I would suggest that this is determined at the level of her symptoms… Is there any recommendations or adjustments to encourage and facilitate a successful and sustainable return to work at this time? Sharon is now back at work. Is there any further temporary or permanent adjustments that could be considered and/or implemented at this time (and – would there be any benefit in obtaining a GP report to assist with this consideration?)? I have had a long discussion with Sharon. She has good insight into her condition and is aware her treatment will continue in order to assist her to manage her symptoms in the long term. The provision of homeworking may assist her in both reducing her commuting time but also on the days when her symptoms increase, she could work effectively at home and not be absent from work…”

[25]The claimant perceived that the respondent “put up barriers” to prevent her working from home, which she described as being an “absolute nono”.

[26]On 10 June 2019, the claimant submitted a Flexible Working Application (FWA)(239). She identified her current working pattern as Monday to Friday 9am to 5pm. She said that she would like her new working pattern to be: “3 days working from home. 8am until 6pm. 2 days in office 10am until 4pm. Option to work from home if symptoms become unmanageable.”

[27]She explained that her application was being made as part of a request for a reasonable adjustment due to disability, on the advice of her doctor. She said that it would have no effect on her colleagues as she would be available by phone or email, and would still attend meetings and training. She would be able to work effectively at home as she had the necessary equipment to do so.

[28]She submitted that such a change would have a positive impact on her working performance as she could concentrate without distraction and be able to factor in time for her CBT exercises, exercise etc.

[29]Following receipt of the application, Heather Broughton, People Services Adviser, emailed Mr Stark on 12 June 2019 (242): “Hi Gavin, As discussed, the potentially fair reasons for declining a flexible working request are listed below. If we had reservations about accommodating a request we would invite the employee to a hearing with 5 days’ notice and the right to be accompanied, discuss the concerns and give the employee an opportunity to provide solutions/responses to these then we would adjourn the meeting and reconvene once a decision was made. As this request has come about from absence due to anxiety and is suggested as an amendment within the occupational health report there may be risks of disability discrimination if we are unable to accommodate it. Being able to evidence that we have explored ways to accommodate the request would also help us if we needed to decline it. Please can you give detail if the employee working from home would cause one of the following and what could possibly be done to overcome this?  the burden of additional costs  detrimental effect on ability to meet customer demand  inability to reorganise work amongst existing colleagues  inability to recruit additional colleagues to cover the hours not worked  detrimental impact on quality  detrimental impact on performance  insufficient work during the periods you propose to work  any planned structural changes RE the confidentiality/conflict of interest issue, has already been picked up on the usual conflict of interest form? If so, what was our response when we were initially informed? Were any restrictions/measures put in place? Regarding timescales, see the Flexible Working Policy but we should invite the individual to a formal hearing within 5 days of receipt of the request.”

[30]She also provided a link to further guidance available on the respondent’s hub (or intranet).

[31]Mr Stark had spoken to Ms Broughton prior to this email. He said in evidence that his intention was to ensure that when dealing with the application he could anticipate potential objections or reasons why the application may be declined, in order to work through them with the claimant before proceeding to a trial.

[32]He responded to Ms Broughton on the following day, adding his comments to the points raised, in red (244). He confirmed that the claimant had had to go home due to an anxiety attack, which she had said was triggered by a change in her medication.

[33]With regard to the potential additional costs, Mr Stark said that “The only costs envisaged are that of an appropriate DSE assessment so no significant impact and likely easily arranged. SM may have to purchase suitable office equipment as she intimated she only has an apple laptop as her husband uses the home office as he is based from home. This in turn may have implications for the conflicts of interest requirements as SM will need to take steps to protect commercially sensitive information and ensure that her conversations are conducted in private.”

[34]With regard to the impact on the ability to meet customer demand, Mr Stark said that: “No test of broadband capability to establish if quality can be maintained using softphone/connections to our systems. Would require a trial period to determined sustained reliability of softphone connection and any impact to the quality experience from our customers.”

[35]With regard to reorganising work among existing colleagues, Mr Stark said that no issues were envisaged, and that normal cover protocols could be used in the event that the claimant were unwell. He observed that the claimant would require to remain flexible to attend team meetings and training as these would be conducted in the office.

[36]Mr Stark confirmed that there was no need to consider recruiting additional colleagues to cover hours not worked, as the claimant intended to work full time hours, albeit to a moderated pattern.

[37]With regard to the potential impact on quality, Mr Stark reiterated that internet connection reliability was paramount to maintain call quality.

[38]So far as the potential impact on performance was concerned, Mr Stark addressed this as follows: “SM is currently significantly behind from a sales figures perspective. A core benefit of working in the AMU is our collaboration on and after sales calls to discuss situations in real time, gather opinion, check understanding and generally share what is working and what isn’t to help shape our next call. In general, SM will miss the team synergy that she does regularly rely upon and may not be readily available to discuss press articles that we may huddle over at short notice. RL will still require SM to adhere to all sales and non-sales volume performance KPIs and based upon the current panel position, a supportive performance improvement plan could be initiated. This PIP operated remotely will introduce some challenges.”

[39]Mr Stark identified that the potential impact to customers being unable to contact the claimant during core hours on her shorter working days may arise in relation to the claimant.

[40]He confirmed, finally, that there were no planned structural changes.

[41]Mr Stark then conducted a Flexible Working Meeting on 18 July 2019. The claimant attended the meeting, and Gary Nisbet took notes (246ff). The notes are a reasonably accurate record of what was said at the meeting.

[42]The claimant explained that she wanted to work from home 5 days per week, but that she felt it necessary to ask for 3 days from home and 2 in the office each week as a compromise. They discussed the benefits to the claimant of working from home, and being able to structure her time herself, and also the impact of her working at home while her husband did the same.

[43]Mr Stark went on to ask about the circumstances in which the claimant would be working at home, and the following exchange was noted: “GS: Can you describe your office? SM: It is a single bedroom. It has a window, a desk, filing cabinet and a unit with books in it. GS: Does it have a chair? SM: It has a swivel chair like the ones in the office. GS: Are there any other combinations of flexible working that would help manage your condition? SM: I don’t know. I know it needs to happen for me to get better but maybe there are other things that we have not thought about…”

[44]Mr Stark considered that this meeting was a constructive meeting conducted in a cordial atmosphere. He did not believe that the claimant reacted negatively to being asked if her home office had a chair in it. He believed that this was a straightforward question to complete his understanding of what the office had in place.

[45]On 9 August 2019, Mr Stark wrote to the claimant (258) confirming the outcome of the claimant’s FWA. In his letter, Mr Stark set out a number of points.

[46]Under “Reasonable Adjustments”, Mr Stark stated: “You have requested reasonable adjustments to assist you with managing your contractual responsibility with your symptoms of anxiety. You are currently receiving treatment in the form of ongoing counselling, cognitive behavioural therapy and new medication to stabilise your symptoms. Considering this, reasonable adjustments may be temporary and are likely to change as your needs change. The company will work with you to accommodate adjustments to the role that are considered reasonable. This is separate to a flexible working request.”

[47]He went on to discuss the different aspects of the application, before setting out the outcome: “I have considered both your flexible working request and the need for reasonable adjustments. A change to your working pattern can be accommodated on a trial basis, specifically:  facilitating working from home up to 3 days per week  reducing your hours within the office to typically 5.0 hours per day, 10:00 to 16:00  offsetting this reduction to working longer hours from home up to 10 hours per day from 08:00 to 18:00 whilst allowing for regular breaks in line with your requirements  your working hours will remain as 35 hours per week. This will be for a period of 3 months to be reviewed on or before 5th November 2019. During the trial period I will consider the following: Reasonable Adjustments  Your needs regarding reasonable adjustments as since the request has been submitted your needs have changed for example, you worked from 09:00 to 15:00 on 2 occasions..  Whether working from home exasperates (sic) your concerns over isolation from the team.  How well we are communicating so that I know how you are feeling and that you are giving me regular updates on your working day. Flexible Working Request  The impact on personal and team performance ie the impact of the change of communication from informal and instant to email updates from colleagues  The quality of service to internal customers  Whether any of your workload needs to be picked up by the other members of the team and if so, the impact of accommodating this  Any detrimental impact to your KPI and Non Sales KPI performance  Any impact observed by our customers in terms of call quality such as poor internet connection, background noise, unavailability between the hours when you have condensed your office days  Any impact on team meetings, training events, webinar attendances  Insufficient work during your working pattern requested…”

[48]Mr Stark went on to confirm that at the end of the trial period, a meeting would be held to review the trial. If successful, the amended hours may become a permanent change to her terms and conditions of employment; if the claimant’s needs changed during the trial, the claimant may choose to withdraw her FWA and reasonable adjustments would be considered; and if the trial were unsuccessful, she would require to revert back to her original hours of work, whereupon she would have the right to appeal against the outcome.

[49]The trial period proceeded. The claimant was happy with Mr Stark’s decision and that her request had been granted.

[50]Mr Stark felt that the success of the trial was mixed. He did not consider that communication was particularly good. He had some concerns about the claimant’s logging on and off times, and delayed emails suggesting that she was working when she was not.

[51]The claimant shared her thoughts with Mr Stark in a letter (undated)(759). She felt that the previous 6 weeks had been mostly positive, and she did not consider that the arrangement had had any detrimental effect on the advisers she worked with.

[52]Following this, Mr Stark wrote on the letter “Extend for 3 months?”. It was unclear whether the claimant was told whether or not the trial was being extended.

[53]In early January 2020, Graeme Smith became the claimant’s line manager.

[54]Mr Smith recorded discussions which he had with the claimant by emailing himself on 13 January 2020 (268). The first conversation was on 10 January, a Friday, in which he proposed that she work a maximum of 2 days per week from home, and ensure that their customer base had access to her during core hours. He asked her to come back to him with a proposal to go to HR.

[55]On 13 January, Mr Smith confirmed that she had emailed on the Sunday 12 January to propose to continue to work from home 3 days per week, with no details as to the rest of the week. Mr Smith asked her to provide more detail as to the proposal. The claimant emailed on 14 January to provide her views (270): “Hi Graeme, Following on from our conversation with regard to my working pattern I have noted below my thoughts and rationale behind what I have proposed. As I mentioned I find it difficult to explain the symmptoms and have made a few unsuccessful attempts at this email. The attacned reports explain what I need to incorporate into a daily routine, the working pattern I had suggested allowed me time to incorporate all of this as well as addresses the issues I have with tiredness, anxiety and concentration. I felt during the trial that the 3 days at home was starting to work well but understand about the working times didn’t align to the business needs. To resolve this I would be open to trying either starting a bit earlier or working a bit later to compensate for extra breaks. Do you think the business would be agreeable? Kind regards”

[56]Mr Smith sought to clarify whether she meant 9am to 5pm on her days in the office, Monday and Friday, and 9am to 5pm for the remaining days from home. She replied (269): “Yes, something along those lines. Or half and half if that’s better for the business. I just want this put to bed as soon as we can so I can concentrate on work and not be worrying about this…”

[57]On 28 January, the claimant sent a letter to Mr Smith (272) confirming that her proposal was to work 3 days at home and 2 days in the office 9 till 5, as during the previous trial it was felt that while the arrangement was benefiting her it did not align with the needs of the business.

[58]On 14 February 2020, Mr Stark emailed Heather Broughton, with a copy to Mr Smith (281ff) to provide a summary of the claimant’s timeline.

[59]In that, Mr Stark made reference to the claimant’s letter (759), and stated: “On the back of this letter from SM and after taking HR counsel, it was agreed that the flexible working request would be declined due to the fact that SM’s working pattern was not enabling her to contact our customer base during their most active times. It was explained to SM that the business still wanted to provide as much flexibility as it could to help her manage her condition but this was not received particularly well by her. She was upset in the joint meetings with myself and Graeme Smtih (her new line manager wef 01/01/20) and provided us with another letter..”

[60]He went on to comment that “Since the start of the year, we had had a very difficult few weeks with SM and it is clear to us that her mental health is starting to decline further. At our sales conference, she left the conference after the first few hours and went to her hotel room. She reappeared for the nights entertainment and had drinks. The next day, she no showed and looked to get an earlier flight up the road. No flights were available but she left for the airport and had drinks again. She ended up on the same flight up to Edinburgh as the rest of us and left her car at the airport. Graeme can give you the progress update from that point but in effect, she had pretty much started working from home full time.”

[61]Mr Stark was particularly concerned, following this occurrence, about the claimant’s mental health. The session which took place following which she left was a session on mental and physical health, and he thought it possible that the claimant was triggered by something which had been raised at that session.

[62]He was also concerned about the claimant’s relationship with alcohol, and said that he had taken her aside on a night out before this occasion to talk about it. The claimant’s response had been to assure him that she was permitted to drink alcohol while on medication.

[63]On 18 February 2020, Mr Smith responded to Ms Broughton (281) to set out the details of events in 2020, as follows:  “3rd Feb to 8th Feb inclusive – off sick  10th Jan and 17th Jan – off sick both of which after we had working pattern discussions in the office in the morning  Sick line received 29th January for 4 weeks – ‘depressive disorder’ – guidance is fit to work but flexibly from home when able  Further recommendations from recent consultation with health professionals that the person is too vulnerable to be in the office but would benefit from working from home during this latest period of treatment  Above noted treatment is now to address all concerns: PTSD, anxiety, depression  Attended team meeting 14th Feb but left afterwards to attend further therapy  Now working from home full time ‘minimum 8 weeks’ according to team member as the treatment will last at least this long  Working pattern is 9am – 5pm.”

[64]The claimant was referred again to OH, who carried out an assessment on 10 March 2020 (284ff). OH confirmed that the claimant was fit for work with recommended adjustments/restrictions.

[65]The recommendations stated: “…I understand you have agreed with Ms Mullen to work 4 days from home and 1 day in the office which she finds very helpful. I would suggest that this support remain in place whilst she is undergoing therapy to enable her carry out her therapy exercises as recommended by her Clinical Psychologist to help support her recovery. This can be reviewed after she completes her therapy. She would benefit from regular one to one meeting with her manager for support. As Ms Mullen reported issues with concentration especially in noisy environment, she will benefit from noise cancelling headphones to help avoid distractions which can affect her concentration She would benefit from having flexibility to attend her therapy appointments as part of medical management.”

[66]The claimant was able to continue to work until August 2021, when she became absent on long term sickness absence, though she returned briefly to work in November 2021 for less than a week. Mr Smith emailed Gary Nisbet on 15 March 2022 with a spreadsheet of her absences (300). He noted that an OH consultation on 22 November had resulted in a report dated the following day (296) in which it was recommended that she continued to work from home, have regular one to one meetings with her manager for support and having flexibility to attend therapy appointments. It was also proposed that her hours were gradually increased on her return to work by an hour a day, and reduced focus on sales activity and MI in the meantime.

[67]The spreadsheet (304) recorded the number of sickness absences the claimant had had since 24 December 2018, until 21 March 2022.

[68]On 19 April 2022, the claimant returned to work on the basis of working 9am to 12.30pm on Monday to Friday (307), as a phased return to work. On 30 May 2022, Mr Smith wrote to the claimant to invite her to a Stage 1 Formal Sickness Absence Meeting (310) to take place on 9 June 2022 via Microsoft Teams. The letter set out the sickness absence levels which the claimant had experienced. She sought to clarify the points being made by annotating the letter in red ink.

[69]The meeting took place as scheduled on 9 June 2022. The claimant attended and Mr Smith chaired the meeting, with Gavin Dunn, Sales Manager taking notes (319ff). Following the meeting, Mr Smith confirmed the outcome by letter dated 20 June 2022 (315ff).

[70]In his letter, Mr Smith pointed out: “You have been absent on 1 occasion totalling 177 working days (13th August 2021 to 18th April 2022) which is higher than the levels deemed acceptable by the business as outlined in the Sickness Absence Policy. This continued a trend going back to 2019 with no significant improvement in absence levels over this time period, as noted in the table above. During the meeting, we discussed the adjustments that have been put in place over the past few years to support you in your role. You agreed these are all the adjustments you and Occupational Health have recommended:  Frequent mini breaks throughout the day  Home working – flexibility to work from home initially for most of the week with a view to being in the office 1 or 2 days longer term  Time for exercise – extra time at lunch to allow to go to the gym ie 90 minute lunch break  Flexibility with working hours to allow you to attend tehrapy sessions which tended to be on a Friday afternoon  Potentially looking at desk being positioned where it would be less noisy in the office and noise cancelling headphones  I moved your panel to the vacant penal team from August 2021 to try and ensure that your advisers continued to get a good level of ongoing service and maintain, as much as possible, new business cases coming to Royal London. With the vacant panel account manager generally only able to [be] reactive because of the number of panels he looks after, this had the effect of seeing quote levels and therefore business levels drop off and affect new business revenue  No formal action taken regarding your sickness absence levels to date.”

[71]Mr Smith confirmed that he felt that the adjustments put in place had not been as effective as they had both hoped, but that he had considered the points put forward by her at the hearing. He concluded that the appropriate outcome was a first absence notice, which would remain on her file for a period of 12 months. He advised that she had the right to appeal against this decision.

[72]The claimant did appeal against this decision, by email dated 20 June 2022, to Gary Nisbet (323). She explained that she did not feel that all the circumstances which explained her absence had been taken into account. Mr Nisbet wrote to her on 22 June to say that he did not consider himself to be sufficiently independent to hear the appeal (326). The claimant replied to say that she totally understood, and “Thanks again though for your support over the last few years. I understand my attendance has been erratic, so I appreciate you all sticking with me.”

[73]The appeal was heard by Vicky Rutherford, Head of Sales Distribution, on 7 July 2022. The claimant attended and was accompanied by a trade union representative, Pat Egan. Charlotte Hassell, Team Manager, took notes (343ff).

[74]Ms Rutherford issued her decision by letter dated 27 July 2022 (348). She summarised the points made by the claimant, including that she felt that she was being penalised for coming back to work by being issued with a first notice of absence, as if she had done something wrong. She had acknowledged that her line manager had been very supportive. She went over the questions she had put to Mr Smith, together with his answers.

[75]She continued: “I also asked Graeme about what support was in place for you now and I believe you do have your panel back, but you are still not being monitored on the number of calls you do, or on your sales MI, and you are still working from home. I have found this incredibly difficult as I recognise, along with your manager, that you have been on an incredibly difficult journey. I also recognise you have worked incredibly hard to get to where you are today and that this is an ongoing journey for you. It is very clear to me, and to Graeme that you have had to try different approaches which were delayed due to the original diagnosis, and that your recovery has been a very hard and painful journey. I also understand that at times, you have felt that Royal London doesn’t understand how to fully support people with mental health illnesses, and I agree, we will never know what it feels like to have your condition and exactly what you need. We will always do our best and offer you the resources we have, for example, the Private Medical care, but we are not medically trained. Due to the fact you have had large periods of absence, the company does have to have a process in place to manage this and in my assessment of your appeal, I looked to whether RL had acted fairly and out of precedent with other situations, and whether there were adjustments that we needed to support you with which we weren’t doing. I also wanted to see whether there were any aspects of your condition which had been disregarded. I do believe that in Graeme’s original decision, the complex nature of your condition was not overlooked. He is very aware of the arduous journey you have been on and there is absolutely no evidence that the seriousness of your condition has not been considered. I can also see adjustments to the usual Sickness Absence Policy have been applied in that you have had higher levels of sickness absence before Graeme commenced with the formal process compared with the triggers set for all colleagues. I can understand why you might think it is the wrong time to move to a first absence notice now but Graeme didn’t implement the policy when it was probably the right time which would have been much earlier on in your recovery. That would have been very unsupportive and wouldn’t have aided your recovery. By doing this now, it provides a basis on which to move forward both for you as it will set out the support you need going forward, and for Royal London, as the company does need to consider what to do if you needed any time off going forwards as there is an impact on Royal London. However, please don’t view this as a punishment; it is establishing a way forward now you are in a much stronger position and doesn’t in any way imply you have done anything wrong.”

[76]She concluded that it was reasonable for Mr Smith to have issued the claimant with a first absence notice, and that the appeal was not upheld.

[77]On 24 January 2023, Gary Nisbet emailed Hazel Ritchie and others to discuss the claimant’s involvement in the dinner at the annual sales conference (355). He said that he had looked over the table plans and identified the table leads. He made a number of suggestions about where particular individuals should be positioned, then said: “I’d also like Sharon Mullen to be on Graeme Smith’s table for health reasons – my suggestion would be to move both to table 23 where there are no guests and perhaps let Jon H and Eric lead on other tables?”

[78]Mr Nisbet had been in attendance at the conference in January 2020 when the claimant had left after the first session of the first day. He was concerned, in January 2023, to consider carefully the claimant’s position at the conference. Normally, the respondent distributes staff and guests at the same table. He decided that it would be appropriate to place the claimant on Mr Smith’s table, for support, and also if she needed to leave, she could do so discreetly from a table near the door. She would know the people at the table because there would be no “CEO level” managers placed at that table. Mr Nisbet’s intention was to make the situation as stress-free as possible for the claimant.

[79]As it turned out, the claimant decided not to attend the conference. She had a flare-up of her symptoms the week before the conference and was thereby unable to attend.

[80]She saw the email of 24 January 2023 in June 2024, redacted apart from the sentence quoted in paragraph 77 above. She believed that the reason why she was being kept apart from the senior managers and placed at a remote table was because of her mental health difficulties.

[81]When the full text of the email was shown to her in the course of these proceedings, under cross-examination, the claimant conceded that it did appear that Mr Smith was seeking to help her by placing her appropriately at a table for the conference, in light of her mental health difficulties.

[82]In August 2023, Mr Smith wrote to Mr Nisbet to show the trends in the claimant’s workload for the previous years, taking into account quotes, cases and business (360). He said that it clearly showed a decline. He also confirmed that he had had a good discussion about the impact on the business of the claimant’s then cycle of absence with her the day before, and that he was satisfied that they were “on the same page now”.

[83]He referred the claimant to OH again, and a further report was produced dated 24 August following a consultation on 23 August 2023 (363).

[84]The report noted that it was significant that the claimant’s condition was now likely to come under the Equality Act 2010 (as a disability). It also stated that the sales metrics and targets did tend to aggravate her mental health; that the Sales Team normally worked in the office for 2 days a week, but that the claimant preferred to work from home; and that it was not sustainable for the claimant to come back to this kind of sales environment as it was likely to aggravate her mental health.

[85]Again, it was noted that the claimant was fit for work with recommended adjustments/restrictions.

[86]The report went on: “I recommend that Ms Mullen is considered for alternative roles which do not involve sales metrics and targets, the role should enable working from home for the majority of time and if possible to reflect the same level of remuneration as her current role.”

[87]A further Formal Sickness Absence Meeting (Stage 2) was then arranged on 21 September 2023, by letter dated 6 September 2023 (365). It was noted that the claimant had had a number of absences starting on 30 August 2022, mostly of short duration, but that from 21 March 2023, the claimant had been absent due to anxiety/PTSD until 23 July 2023. The meeting was to be chaired by Graeme Smith.

[88]The meeting took place on 28 September 2023 by Microsoft Teams. The claimant attended and was accompanied by Tim Hazell, a Senior Training and Development Manager who also fulfilled the role of Lead Representative in the Colleague Representative Forum (CRF). Mr Smith was assisted by Gavin Dunn, who took notes of the meeting (377ff).

[89]At the start of the meeting, Mr Smith asked the claimant “In terms of the process what could we have done differently?” The claimant’s response was: “not you Graeme – you have been amazing. It’s the business process that I don’t trust. Mixed signals received. I am being punished because I have chronic health condition. I don’t feel I have the energy to keep fighting it anymore.”

[90]Mr Smith also raised the recommendation made by OH that the claimant be considered for an alternative role which did not offer sales targets or metrics without a drop in salary. He asked the claimant if she agreed with that.

[91]The claimant’s reply was: “yes and no. I don’t agree about them saying Sharon can’t do the role. It’s the activity that I struggle with. I can do the role. 13 years in role next month. Occ Health people didn’t know me, what I’m like. All you do is answer questions.”

[92]Mr Smith noted that the OH report had said that it was not sustainable that the claimant return to her sales role as it would aggravate her condition, and asked why that recommendation was there. The claimant’s response was that OH did not know her, and that she did not “have a clue”. She did not feel that she could not do her job; she said that she needed a break to get over all of this – “Put it to bed and I’ll be fine.”

[93]There was a follow-up meeting on 4 October 2023, in respect of which the same people were in attendance, and notes were taken by Gavin Dunn (382). The purpose of the meeting was to advise the claimant of the outcome of the Stage 2 meeting. The outcome was formally confirmed by letter dated 6 October 2023 (387).

[94]In the course of the letter, Mr Smith observed: “We covered the most recent Occupational Health report dated 24th August 2023 which recommended a different role (not sales), as the nature of the role could be detrimental to your health. You disagreed with this recommendation and made it clear you do not want to move to another role, and you feel you can perform the role of an Account Manager. You suggested an adjustment of a reduced number of sales calls that you would be required to make, as this measure can cause you anxiety. This adjustment has been put in place previously in 2022. The Occupational Health Report from August 2023, in addition to the above recommendation, also suggested home working for most of the time and a further referral 6 weeks from the date of the initial report. I have since requested that referral. Home working has already been accommodated for the full working week over the last number of years. This will continue to be reviewed.”

[95]He went on to assure the claimant that this was not a punishment in any way, but that while he wished to support her as much as possible, he needed to balance this with the impact of her absences on the business.

[96]Mr Smith concluded by finding that the appropriate outcome was a final absence notice, to remain live on her file for a period of 12 months from 6 October 2023. Further sickness absence triggers would be agreed with her. She was also advised of her right to appeal against the decision.

[97]The claimant was seen again by OH on 10 October 2023, and a report was issued the following day (392ff). It was noted that that the claimant confirmed she was happy to return to the sales role and to come under sales targets. It was recommended that the claimant was “Fit to return to full time duties working from home, as outlined above, undertaking a normal sales role and targets, noting that Ms Mullen is confident she will be able to manage returning to her role.”

[98]On 18 December 2023, Mr Hazell emailed Mr Smith (394) to say that he had spoken to Sales MI and they had said that they could adjust MI to reflect actual agreed targets/measures. He said there was a precedent for this. Mr Smith replied on 15 January 2024 to say that he was due for a weekly catch-up with the claimant that morning, but she was not available. he said that the claimant’s call numbers “look ok (as agreed)” but that he was keen to review them more regularly. He pointed out since the claimant had returned to work in October 2023 there had been some weeks where the call numbers had been below the 4 daily.

[99]On 22 January 2024, Mr Smith emailed the claimant about a “Reasonable Adjustment Agreement” which she and Mr Hazell had drafted and sent to him (402). In the email, he said “I’ve made one change to home working with an ambition to see you in the office on our team day and monthly meetings – aiming to build up to two days per week.”

[100]The claimant replied that day to say “Thanks. I am happy with that.” (402).

[101]It was noted in the agreement that the standard absence trigger mechanisms for managing absence are 3 occasions or 10 days sickness absence (pro-rated for a part-time pattern) within a rolling 6 month period, but that the respondent had agreed to a 100% increase in these triggers, and therefore that the claimant’s absence triggers would be 6 occasions and/or 20 days sickness absence (pro-rated for a part-time pattern) within a rolling 6 month period.

[102]It was noted that the claimant was permitted home working, with an “ambition” to come to the office for the team day on a Monday, and team monthly meetings building up to 2 days per week.

[103]Further, the agreement confirmed that there would be a reduction in MI and campaign monitoring, to be shown through updated MI to reflect the measures being taken. Activity measures were to be set at 4 per day, to be monitored every 3 months, with an ambition to increase to 6. These would be shown through updated MI to reflect the measures being taken.

[104]The agreement was signed by the claimant on 19 January and by Mr Smith on 22 January 2024.

[105]On 22 February 2024, Mr Smith emailed himself with notes about the claimant (headed “sm notes”). He had become concerned about the claimant, having listened to a number of sales calls – all calls by the respondent’s staff in the course of business are recorded – during which he felt that the claimant sounded incoherent. He was concerned that this may be alcohol-related.

[106]Mr Smith met with the claimant in order to establish a “Get Back on Track Plan” for her. The terms of the plan were recorded in a document produced by Mr Smith (416ff). In that, he noted that the reason for the plan was: “I listened to calls Sharon made both to colleagues and an IFA [Independent Financial Adviser]. It was clear that sharon was finding it difficult to speak and there was a lack of clarity in what she was asking for. There was also a lack of understanding from the others on the call as to what the request was. At times there was long pauses and silences. My concern was for Sharon’s welfare and from a reputational and risk point of view. Sharon said she listened to the calls and agreed with me on how they sounded. We agreed to set up a get back on track plan. Working towards 2 days in the office: Sharon has been in the last few team days (Mondays). She has said that a Monday and Wednesday would work for her. We will aim for this.”

[107]He also recorded on the plan that the claimant would look to understand the pipeline/performance and other systems, related to the Sales MI and statistics, and work with others in the team to understand how to utilise these effectively.

[108]Reference was also made to the need to address cancellation of adviser meetings and how to avoid this, and to help the claimant engage with team meetings and with others to learn from them.

[109]He concluded by saying that “I know Sharon can progress given her experience and knowledge and I will be looking for her to demonstrate a commitment to becoming a subject matter expert which will help her development and confidence.”

[110]The expected delivery date was set as 29 April 2024.

[111]On 21 May 2024, Mr Smith referred the claimant to OH again. In the management referral form (426ff), he identified that the reason for the referral was “Suspected alcohol or drug misuse; Any stress, depression or anxiety related issues.”

[112]He commented that the claimant had just been diagnosed with Borderline Personality Disorder (BPD). He also stated that “On listening to recent sales calls, Sharon appeared to be incoherent due to alcohol. She agreed she didn’t sound right but denied alcohol was involved. This was in March. Not aware of other issues.”

[113]The claimant did not see the terms of the referral at the time, but the OH report dated 23 May 2024 which arose out of it (428) confirmed that the adviser read the contents of the referral to her, and she mentioned that she did not agree with all of the information provided and the way in which management described her problems. It was noted that she became significantly distressed during the call, and declined to continue with the OH consultation.

[114]On 5 July 2024, the claimant submitted a formal grievance by email to Mr Smith (438) in relation to “the treatment I have received since I made the business aware of my mental health issues in 2018. Due to the most recent incident with OH I feel I have no choice as numerous informal attempts have been unsuccessful… I feel like the actions of the business are a cynical and orchestrated attempt to sever our relationship…”

[115]Claire Fraser, Customer Service Manager, was asked to deal with the claimant’s grievance. She met with Mr Smith on 9 July 2024 (notes were produced at 443ff). In the course of that meeting, she asked Mr Smith whether he had any understanding as to why the claimant may have felt that the respondent was trying to sever the working relationship. Mr Smith responded: “No, other than a few conversations early on regarding finding another role which may be more suitable for Sharon. Gavin had explained to Sharon that he would support her with redeployment opportunities within Royal London and would be happy to help her explore the options available. Gavin explained there ar roles within the Distribution Area (BSU, NSU) which do not have sales targets attached to the roles which Sharon could potentially be suitable for. Other members of the management team within the distribution area are already aware of the concerns over Sharon’s attendance and health therefore it may not be easy for redeployment within the sale business area.”

[116]Mr Smith agreed that he did not explore redeployment options because the claimant made clear that she did not need to consider a different role.

[117]On 1 August 2024, Ms Fraser met with the claimant, who was accompanied by Mr Hazell. William Sutcliffe took notes (462ff). Following that meeting, the claimant sent further medical information to Ms Fraser.

[118]Ms Fraser produced a Grievance Investigation Report dated 27 August 2024. She set out the background to the claimant’s grievance, and noted the details of the claimant’s complaints as well as her sickness absence record.

[119]With regard to the treatment received by the claimant since making the business aware of her mental health issues in 2018, Ms Fraser concluded: “However, despite all the endeavours by yourself and the business, you sadly continue to suffer from your condition, resulting in a level of absence that I find is reasonably sustainable for the business, and has shown a worsening position. I know you attribute some of this to the process itself, but I have also considered the level of absence pre any formal action, and if that was an improving or worsening picture. For example, absence in 2019 was 38 working days. This increased to 104 in 2021 despite all the efforts made by all concerned and this being pre any more formal action. I do not uphold this point of your grievance.”

[120]With regard to the OH incident, in which Mr Smith sent a referral discussing the possible difficulties experienced by the claimant in relation to alcohol, Ms Fraser concluded that Mr Smith had made a mistake by not sending the claimant a copy of the OH referral before submitting it. He had not previously copied referrals to the employee prior to sending them, and accordingly she considered that it was a genuine mistake and that there was nothing deliberate or underhand about it. She did not, therefore, uphold this point of grievance, but assured the claimant that she would take action to ensure that referral requirements were clear.

[121]With regard to the third point of the grievance, that the actions of the business were a cynical and orchestrated attempt to sever the relationship with her. She reviewed the history of the matter, and again concluded that this aspect of the grievance could not be upheld.

[122]Accordingly, the claimant’s grievance was not upheld. However, Ms Fraser set out a number of recommendations as follows:  “Claire Fraser to share Occupational Health referral requirements with Graeme Smith  Claire Fraser to recommend 2023 performance ratings for Q2, Q3 and end of year to be changed to ‘on track’  Claire Fraser to discuss quarterly review rating and documentation requirements with Graeme Smith  Claire Fraser to recommend Graeme Smith engages with Royal London’s Reward Team to review Sharon Mullen’s December 2023 pay increase in line with revised rating of ‘on track’”

[123]Ms Fraser sent her outcome to the claimant on 30 August 2024 (491).

[124]The claimant remained dissatisfied with the outcome and submitted an appeal to the respondent. Jason Wyatt, Group Head of Financial Crime, was appointed to deal with the appeal. An Appeal Hearing was conducted by Mr Wyatt on 7 October 2024. The claimant attended with Mr Hazell, and notes were taken by Leah Street (498ff).

[125]Mr Wyatt subsequently met with Mr Smith on 23 October 2024. Notes were taken by Ms Street once again (507ff).

[126]On 7 November 2024, Mr Wyatt wrote to the claimant to confirm the outcome of her grievance appeal (532). He concluded that the appeal should not be upheld, and he set out in detail his reasons for reaching these conclusions.

[127]The claimant was disappointed by the outcome of her grievance appeal.

[128]She wrote to the respondent on 18 November 2024 to intimate her resignation from the respondent’s employment (548): “Dear Graeme, I am writing to inform you that I am resigning from my position as Account Manager with The Royal London Mutual Insurance Society with immediate effect. Please accept this email as formal notice of my resignation and termination of my employment contract with you. I feel that I have no other option but to resign my position, due to:  trusting that the business would act in line with their values and internal policies. I followed the processes and explained my reasoning throughout. I have spoken to various managers and most recently Claire Fraser and Jason Wyatt (Royal London the Head of Financial Crime) about my concerns and hoped I would be taken seriously. The Head of Financial Crime Jason Wyatt felt it appropriate to interview 1 person (exactly the reason for the appeal). The interview lasted 9 minutes?  a failure to make reasonable adjustments for my disability  harassment in the workplace  being subject to unreasonable and unfair treatment. Due to your behaviour as an employer, as above, I believe that the relationship has irrevocably broken down. Further, I consider your conduct to be a fundamental breach of the employment contract on your part, in particular the duty of trust and confidence. I resign as a result of the fundamental breach of the employment contract, and consequently, I believe that my resignation constitutes constructive dismissal. Please confirm receipt of this email. Sharon Mullen”

[129]Following the claimant’s resignation, she has been unable to secure alternative employment. She obtained a report from Lucy BamfordLeggett, a Psychotherapist (undated), which she thought was from approximately August 2024 (715).

[130]The report stated that the claimant had suffered from low self-esteem, which had been exacerbated by ongoing work stress during the time she worked with the claimant. She also continued to suffer from symptoms of PTSD, which were triggered by a sense that she had done something wrong at work. Ms Bamford-Leggett stated that the “constant work pressures” had contributed to her poor mental health and high levels of anxiety. She found that the claimant’s symptoms were consistent with someone with Complex PTSD with anxiety and depressions.

[131]The claimant has continued to see her GP, who, she says, has told her that she remains unfit for work to the date of the Tribunal Hearing. As a result, she considers that the level of stress involved in seeking new employment would be unhelpful. She has expressed some interest in volunteering.

[132]As at the date of the Tribunal Hearing, the claimant had applied for benefits, but had not received any. She described this as “imminent”.

[133]The claimant has undergone treatment in relation to her symptoms over a period of some years. A report was produced by Ann McKendry, Chartered Psychologist and CBT Counsellor (undated) (690). She confirmed that “over the last few months… a cycle of mood and behaviour – eg episodes of being on a high – where client speaks rapidly, can become very irritable or agitated very quickly, concentration levels are erratic…” Ms McKendry associated this with the claimant’s work. It appears that this report was produced while the claimant remained in employment.

[134]The claimant remains under prescription of Sertraline and Diazepam. She is no longer seeing the psychotherapist nor can she benefit from private healthcare cover. She does not go out or socialise, and sometimes fail to take care of herself, though from time to time she does go out for dinner with her husband or her family.

[135]The claimant’s position is that while she suffered from certain symptoms before the issues which arose in this case, her symptoms had never been so severe as they became because of the way in which she was managed by the respondent, which damaged her confidence and placed her in the position she considers herself to be in now.

[136]The claimant commenced the ACAS Early Conciliation process on 17 July 2024, and received the Early Conciliation Certificate on 28 August 2024. She presented her claim to the Employment Tribunal on 25 September 2024.

[137]The reason why the claimant contacted ACAS on that date was that she had received information from the respondent in response to a Subject Access Request, and also because of the issues arising from the OH referral in which reference had been made to her issues with alcohol. She had not raised a grievance but considered it necessary to protect her legal position. She understood that she had 3 months from the date of that last incident, subject to an extension granted through the Early Conciliation Process, and she presented the claim on 25 September 2024. She believed that she had presented it in time, though she accepted that she may have misunderstood the legal position.

[138]The claimant was a member of the UNITE trade union, but she did not find them to be particularly helpful. She had rejoined the trade union in 2024 after a period out of membership, but they confirmed that they would not represent her before the Tribunal as she had not been a member for sufficient time. She also contacted a couple of firms of solicitors, who operated on a “no win, no fee” basis but did not seek advice from them as to time limits before the Tribunal. Submissions

[139]Both parties helpfully presented written submissions, to which they each spoke, and the Tribunal took account of those submissions in our deliberations. No summary is provided herein, but where appropriate, reference is made to the submissions in the Discussion and Decision section below.

The Relevant Law

[140]Section 95 of the Employment Rights Act 1996 ("ERA") sets out the circumstances in which an employee is treated as dismissed. This provides, inter alia “(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if)— … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”

[141]Where a claimant argues that there has been constructive dismissal a Tribunal requires to consider whether or not they had discharged the onus on them to show they fall within section 95(1)(c). The principal authority for claims of constructive dismissal is Western Excavating -vSharp

[1978] ICR 221

[142]In considering the issues the Tribunal had regard to the guidance given in Western Excavating and in particular to the speech of Lord Denning which gives the “classic” definition: “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover, the employee must make up his mind soon after the conduct of which he complains. If he continues for any length of time without leaving, he will be regarded as having elected to affirm the contract and will lose his right to treat himself as discharged.”

[143]The Western Excavating test was considered by the NICA in Brown v Merchant Ferries Ltd

[1998] IRLR 682

where it was formulated as: “…whether the employer’s conduct so impacted on the employee that, viewed objectively, the employee could properly conclude that the employer was repudiating the contract. Although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not did the employer act unreasonably, if the employer’s conduct is seriously unreasonable that may provide sufficient evidence that there has been a breach of contract.”

[144]What the Tribunal required to consider was whether or not there was evidence that the actions of the respondents, viewed objectively, were such that they were calculated or likely to destroy or seriously damage the employment relationship.

[145]The Tribunal also took account of, the well-known decision in Malik v Bank of Credit & Commerce International SA

[1997] IRLR 462

, in which Lord Steyn stated that “The employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”

[146]It is also helpful to consider the judgment of the High Court in BCCI v Ali (No 3)

[1999] IRLR 508

HC, in which it is stressed that the test (of whether a breach of contract amounts to a breach of the implied term of trust and confidence) is “whether that conduct is such that the employee cannot reasonably be expected to tolerate it a moment longer after discovering it and can walk out of his job without prior notice.”

[147]In Jones v Collegiate Academy Trust

UKEAT/0011/10/SM

, the EAT stated: “It is important to note that an objective test is to require whether the conduct complained of is calculated or likely to destroy or seriously damage the relationship; the subconscious of intent of the respondent is irrelevant as the Employment Tribunal correctly held… The subjective perception of the employee is also not relevant. The respondents’ conduct must be repudiatory in order to establish a breach of the implied term; it must be conduct by the respondent which objectively considered it likely to undermine the necessary trust and confidence in the employment relationship.”

[148]Omilaju v Waltham Forest London Borough Council

[2005] 1 All ER 75

is helpful in considering whether or not the resignation of an employee is a response to a last straw in a series of acts by the employer which amount, together, to a fundamental breach of contract. It is noted in that judgment: “The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.” This endorses the view of the court in Lewis v Motorworld Garages Ltd

[1985] IRLR 465

: “The breach of this implied term of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?...This is the ‘last straw’ situation.”

[149]The Tribunal also took into account the Employment Appeal Tribunal decision in Wright v North Ayrshire Council

UKEATS/0017/13/BS

from June 2013. In that case, having examined the line of authorities relating to claimants who resign for more than one reason, Langstaff J cautioned against seeking to find the “effective cause” of the claimant’s resignation, but found that Tribunals should ask whether the repudiatory breach played a part in the dismissal.

[150]Finally, under this head, the Tribunal was referred by parties to Kaur v Leeds Teaching Hospitals NHS Trust

[2018] IRLR 833

CA, and considered this as part of its reasoning.

[151]Section 13(1) of the Equality Act 2010 (“the 2010 Act”) provides: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[152]Section 20 of the 2010 Act sets out requirements which form part of the duty to make reasonable adjustments, and a person on whom that duty is imposed is to be known as A. The relevant sub-sections for the purposes of this case are sub-section (3) and (5). Sub-section (3): “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” Sub-section (5): “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

[153]Section 21 of the 2010 Act provides as follows: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person…”

[154]The Tribunal also had reference to section 26(1) of the 2010 Act: “A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B…”

[155]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if –

a. A treats B unfavourably because of something arising in consequence of B’s disability, and

b. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[156]We addressed the List of Issues in turn. 1. CONSTRUCTIVE UNFAIR DISMISSALa. Was the claimant dismissed? i. Did the respondent breach the claimant’s contract of employment? The claimant asserts that the respondent breached the implied term of mutual trust and confidence. ii. If so, was that breach serious enough to be a repudiatory breach? iii. Did the claimant waive the breach? iv. Did the claimant resign in response to the breach?

b. Was the dismissal fair? i. Was there a potentially fair reason for the respondent’s conduct? ii. If there was, was the dismissal reasonable?

[157]REMEDY c. If the claimant’s claim of constructive dismissal is upheld: i. What remedy does the claimant seek? ii. If the claimant seeks reinstatement or reengagement, is it practicable for the respondent to comply with such an Order? iii. What financial compensation is appropriate in all of the circumstances? iv. Should any compensation awarded be reduced in terms of Polkey v AE Dayton Services Ltd

[1987] ICR 142

[158]In his submission, Mr Briggs helpfully confirmed that the respondent did not contest that the claimant resigned in response to the alleged final straw (the outcome of the grievance appeal), or that she resigned in response to that alleged breach of her contract (the employee-facing elements of the constructive dismissal claim); however, he made clear that the respondent does contest the employer-facing elements of the claimant, namely that the respondent breached the claimant’s contract of employment, and that the breach was sufficiently serious as to repudiate the contract.

[159]The claimant’s resignation letter is important as an adminicle of evidence demonstrating the reason for her resignation. She submitted her resignation on 18th November 2024, and in it she said: “Dear Graeme, I am writing to inform you that I am resigning from my position as Account Manager with The Royal London Mutual Insurance Society with immediate effect. Please accept this email as formal notice of my resignation and termination of my employment contract with you. I feel that I have no other option but to resign my position, due to:  trusting that the business would act in line with their values and internal policies. I followed the processes and explained my reasoning throughout. I have spoken to various managers and most recently Claire Fraser and Jason Wyatt (Royal London the Head of Financial Crime) about my concerns and hoped I would be taken seriously. The Head of Financial Crime Jason Wyatt felt it appropriate to interview 1 person (exactly the reason for the appeal). The interview lasted 9 minutes?  a failure to make reasonable adjustments for my disability  harassment in the workplace  being subject to unreasonable and unfair treatment. Due to your behaviour as an employer, as above, I believe that the relationship has irrevocably broken down. Further, I consider your conduct to be a fundamental breach of the employment contract on your part, in particular the duty of trust and confidence. I resign as a result of the fundamental breach of the employment contract, and consequently, I believe that my resignation constitutes constructive dismissal. Please confirm receipt of this email. Sharon Mullen”

[160]Essentially, while the claimant’s claim was not articulated as clearly as it might have been, her letter of resignation did indicate that she was clearly unhappy about the outcome of her grievance process, and the appeal thereafter, and appeared to suggest that the respondent did not follow its own procedures.

[161]We considered that Ms Fraser and Mr Wyatt were both impressive witnesses who were not only truthful in their evidence, but clearly sincere and careful in their deliberations relating to the claimant’s grievance. The claimant’s criticism of one interview which lasted 9 minutes was, in our view, of little substance. Mr Wyatt was of the view that the interview was as long as was necessary to obtain the answers required. The claimant was given the opportunity to set out her grievance both in written and oral form, was represented by Mr Hazell, an experienced representative, and her position was carefully considered before the decisions were issued. Mr Wyatt’s outcome letter (532ff) ran to 6 pages and specifically dealt with each of the points raised by the claimant.

[162]The claimant’s position appeared to us to be curious. She did not, in evidence, suggest that there were failures in the procedures followed, but that the respondent did not address her situation as an individual. In other words, the claimant’s primary complaint was that the respondent did not understand her mental health difficulties or the impact upon her of those difficulties.

[163]She did, on occasion, express gratitude for the support she received from her line managers throughout the process, but she was also critical, before us, of some of the questions which were put to her. However, at the time, she did not express any concern about these matters. An important instance of this related to the meeting of 18 July 2019 (246ff), in which the claimant was asked to describe her home office, as part of the discussion with Mr Stark about whether or not the environment was suitable to allow her to work from home. When she described her office, she mentioned that it was a single bedroom, with a window, a desk, a filing cabinet and a unit with books in it. Mr Stark then asked if it had a chair in it. This question she now maintains was offensive and humiliating. However, two points are notable from her response: firstly, she did not complain or give any indication at the time that she regarded the question as offensive or humiliating; and secondly, she answered it, in our view, in a manner which made it clear that she understood why she was being asked, by saying that it was a “swivel chair like the ones in the office”. That demonstrated that she well understood that since a chair is part of the working environment, it was relevant for Mr Stark to ask about it. She had not mentioned that the room had a chair, and in our view it was an entirely legitimate and innocuous request for clarification by Mr Stark to check that there was in fact a chair.

[164]In our judgment, the conclusions which were reached by Ms Fraser and Mr Wyatt in relation to the claimant’s grievance and appeal were set out carefully, with reasons given, referring to the respondent’s policies as appropriate, and addressing the claimant’s concerns. That they did not match the claimant’s expectations or hopes of the process does not meant that the conclusions reached were unjustified or in any way amounted to a breach of the claimant’s contract of employment.

[165]The respondent followed its procedures in issuing the claimant with two formal absence notices. Once again, the claimant was upset that, despite her having no control over her illness and the impact upon her, the respondent took what she viewed as punitive action against her. In our judgment, this did not amount to a breach of the claimant’s contract of employment; indeed, the respondent was following its own Managing Attendance Policy in issuing these notices. It did so on the basis of the absences which the claimant had. This was not a disciplinary process, and accordingly the claimant’s conduct was never in question. It is legitimate, however, for an employer to seek regular and effective service from its staff (in exchange for pay), and to take steps to warn that employee that if absences continue, action may be taken against them.

[166]In our judgment, viewed objectively, the actions of the respondent did not at any stage amount to a breach of the implied term of trust and confidence between employer and employee. That the claimant considered that she was not being listened to, or that the respondent did not understand her illness, may well be a genuine expression of how she felt, but the Tribunal must view the matters objectively, and in doing so, consider whether or not there is any indication that the respondent no longer intended to be bound by the material terms of the contract. In our view, there was no such indication in this case.

[167]We accept that the diagnosis of the claimant’s condition was developing, and that the respondent sought to take account of each of the developments as they arose.

[168]In any event, it is the case that in late 2023, the claimant’s working from home arrangements were formalised. She had consistently argued for a greater proportion of her working hours to be done from home, and in our assessment, had regularly sought to work from home for more hours than the respondent wished, but no formal action was taken against her if she did not attend at the office. The respondent demonstrated great flexibility in their dealings with the claimant’s wish to work from home, and ultimately she worked entirely from home except when required to attend at the office for team or training days.

[169]There was no repudiatory breach of contract by the respondent in this case. There was therefore no question of the claimant having waived any such breach.

[170]Accordingly, it is our conclusion that the respondent did not breach the claimant’s contract of employment, and therefore that her claim that she was constructively dismissed must fail, and be dismissed.

[171]As a result, no compensation falls to be awarded to the claimant in relation to this head of claim. 3. DISCRIMINATION – DISABILITY b. Direct Discrimination i. Who is the claimant’s comparator (actual or hypothetical) whose circumstances must be materially the same as the claimant’s? ii. Was the claimant treated less favourably than the comparator was or would have been? The claimant alleges that: 1. In advance of a Sales Conference in January 2023, Gary Nisbet emailed Graeme Smtih asking claimant’s mental health; and 2. Graeme Smith on 9 July 2024 told Claire Fraser that other managers were aware of the claimant’s health conditions so redeployment would be an issue. iii. If so, was the reason for the treatment the claimant’s disability?157. We deal with the substantive aspects of the claimant’s discrimination claims before addressing the jurisdictional points.

158. The claimant’s complaint of direct discrimination relies upon a hypothetical comparator. As Mr Briggs helpfully put it in his submission, the appropriate comparator is someone without a disability, but with whom the respondent had similar wellbeing concerns at the January 2024 conference.

159. In our judgment, the claimant’s treatment by the respondent at the conference in January 2023 was readily explained by them, as arising from the events of the 2020 conference. There, the claimant had left the conference after the first session, by which she had been upset, and did not return except to engage in the dinner and social engagement in the evening of the first day. She then left the conference early on the second day, and was found at the airport, in the respondent’s view, having drunk alcohol.

160. The January 2023 conference was the next one she attended, and she was placed at a table where she would know everyone, and where Mr Smith would be present, in order to ensure that she was well cared for.

161. The claimant appeared to suggest that this was a humiliating decision, but in our judgment, the respondent simply took action to take care for an employee who, in her own words before us, described herself as vulnerable. The conference is not an everyday event, but only occasional, and given the claimant’s reaction on the previous occasion, it was understandable and indeed laudable for the respondent to ensure that steps were taken, so far as possible, to avoid a recurrence – for the claimant – of the reaction which she had suffered on the earlier occasion.

162. We did not consider that the respondent acted in a manner which amounted to less favourable treatment on the grounds of the claimant’s disability by placing her at that table; in our judgment, a non-disabled employee whose wellbeing was the subject of concern by the managers would have been treated in the same way. It was not possible to find that this amounted to less favourable treatment than would be given to another person on the basis that we did not regard it as unfavourable at all, but rather as a demonstration of concern and care for an employee known to have suffered difficulties in such circumstances before.

163. The second aspect of this claim was that Mr Smith told Ms Fraser that other managers were aware of the claimant’s condition, and so redeployment would be an issue. The comment focused upon came in the interview which Ms Fraser conducted with Mr Smith as part of the grievance process and appears in the notes at 446: “Other members of the management team within the distribution area are already aware of the concerns over Sharons attendance and health therefore it may not be easy for redeployment within the sale business area.”

164. The appropriate way to view this is to consider whether the responses given by Mr Smith would have been more favourable had the claimant not been disabled. In our judgment, there is simply no basis to make such a finding. It is not clear whether Mr Smith’s comments had any effect at all; they appeared to us to be the expression, by a manager, that due to the claimant’s circumstances (though not her disability) there may be difficulties in redeploying her. Since this was not something which the claimant wished, there is no less favourable treatment here, and no proper basis for a suggestion that a non-disabled employee in the same circumstances would have been treated differently.

165. Accordingly, it is our conclusion that the claimant’s claim of direct discrimination on the grounds of disability must fail, and be dismissed. c. Discrimination Arising from Disability i. Was the claimant treated unfavourably because of something arising as a consequence of their disability? The claimant alleges that the ‘something arising’ was the claimant’s erratic behaviour. ii. The alleged unfavourable treatment is as follows: 1. Being placed on a Performance Improvement Plan by Graeme Smith; and 2. In advance of a Sales Conference in January 2023, Gary Nisbet emailed Graeme Smith asking to seat the claimant at the back of the room where no guests were situated, because of the claimant’s mental health. iii. If so, what was the reason for the treatment? iv. In treating the claimant in that way, what aim was the respondent seeking to achieve? v. Was that aim legitimate? vi. Was the treatment a proportionate means of achieving that aim or was there a less discriminatory way of

166. The respondent accepts that the claimant was placed on a performance improvement plan, and that that was because of something arising in consequence of her disability, namely that she had been slurring her words and appearing incoherent while on a phone call to the respondent.

167. It is of importance that the claimant accepted, both at the time and before us, that it was understandable that the respondent had concerns over her demeanour on the call which was listened to, as she did not come over well and seemed to be unclear and slurring her words. When she was confronted about it, and listened to the call herself, she expressed understanding that the respondent would want to address this matter. The issue of alcohol was raised, without objection by the claimant, and the need for action by the respondent appropriately identified by them.

168. No disciplinary action was taken against the claimant in relation to this matter. A “Back on Track Plan” was put in place with the explicit purpose of addressing areas of concern in her performance, and she agreed that such a plan be put in place.

169. We did not find that this decision amounted to unfavourable treatment by the respondent. It was a step taken in order to assist the claimant in addressing areas of concern in her performance. The claimant was attending work at the time, and was therefore considered to be fit to work. It cannot be credibly suggested that where a legitimate concern is raised by an employer about the performance of an employee – a concern which the employee considers to be entirely understandable – it will always amount to unfavourable treatment when the purpose is not to punish but to assist the employee in addressing the concern in a positive manner. The claimant agreed to the Back on Track Plan being put in place, and that reinforces our view that it did not amount to unfavourable treatment.

170. Even if we had found that it was unfavourable treatment for a reason arising in consequence of the claimant’s disability, we would have found that the respondent’s actions amounted to a proportionate means of achieving a legitimate aim, namely to ensure that an employee charged with the heavy responsibility of advising and representing the company to external members of the public is carrying out their responsibilities in an appropriate and professional manner. It is proportionate to take steps to assist that employee to improve their performance in order to address the concern. No action was taken to punish the claimant, but measures put in place to ensure that support was available to avoid a recurrence, an outcome desired by both the employer and the employee in this case. 171. The second aspect of this claim related to the seating arrangements for the January 2023 conference. As we have found above, we do not consider this to amount to unfavourable treatment towards the claimant, though it came about because of something arising in consequence of her disability. The claimant’s behaviour at the January 2020 conference was a significant reason for the respondent to have sought to avoid a recurrence of the adverse reaction suffered by the claimant on that occasion.

[172]It is notable that when the claimant, before us, was shown the unredacted version of the email by Mr Nisbet, she acknowledged that the reasoning was as set out by the respondent, namely to place her at the same table as her line manager in order to protect her and to ensure, if possible, no recurrence of the incident in January 2020.

[173]Accordingly, we did not conclude that the email setting out the seating arrangements amounted to unfavourable treatment, but if we had done so, we would have found that it amounted to a proportionate means of achieving a legitimate aim, in that the protection of the claimant’s wellbeing was the priority of the email, and placing her in the way they did amounted to a proportionate means of achieving that legitimate aim.

[174]The claimant’s claim under section 15 must therefore fail, and it is dismissed. d. Reasonable Adjustments i. Did the respondent apply a provision, criterion or practice (PCP)? The PCPs are: 1. The publishing of management information to the team; and 2. Requiring employees to work from the office. ii. If so, did each PCP place the claimant at a substantial disadvantage in comparison with employees who were not disabled? iii. Did the respondent make reasonable adjustments? The claimant alleges that the respondent failed to make the following reasonable adjustments: 1. To formalise changes to targets in the MI reporting, meaning the claimant always appeared at the bottom of the league tables despite achieving her targets; or 2. Alternatively being removed from the MI reporting; and 3. To formalise the claimant’s working from home arrangement such that she received regular contact from her line manager asking when she was attending the office. iv. The respondent contends that the following adjustments were made to support the claimant: 1. Not taking any formal action in respect of the claimant’s absence for approximately three years; 2. Regular referrals to Occupational Health; 3. Access to Employee Assistance Programme and other Mental Health support; 4. Reduced performance targets; 5. Flexibility in working hours; 6. Flexibility in terms of working from home from July 2019, then during and post-Covid lockdown a regular home working arrangement; 7. Frequent breaks from work including flexibility to attend medical appointments and to exercise; and 8. Significantly extended absence trigger points.

[175]We considered, firstly, whether the respondent applied the PCPs alleged by the claimant.

[176]The claimant alleged that the first PCP was that the respondent published MI analysis to “the team”. MI (or Management Information) data was compiled by the respondent, and retained in order to assess a number of factors in the performance of staff, including the number of phone calls made in each day and other metrics.

[177]The claimant’s concern is that the analysis would show that she was not meeting targets in the published data, and that her team would see this. In her view, this placed her at a substantial disadvantage due to her disability, on the basis that she would always appear to be at the bottom of the table produced.

[178]The evidence demonstrated that the data was not published to the team, but that it would be seen by the management team responsible for the performance of the particular sector in which she worked. Spreadsheets were produced to the Tribunal (753ff) which showed, by way of colour codes, the weekly activity of each member of staff in AMU. It is plain that the information was gathered in relation to each member of staff, and not just the claimant.

[179]The claimant believed that she was being singled out as an underperformer, and that that amounted to a substantial disadvantage on the basis of her disability. The respondent’s position was that the fact that she was uneasy with information existing which showed her having more red boxes (negative results) than others and than she would have preferred did not amount to a substantial disadvantage.

[180]We agreed with the respondent’s submissions on this point. The claimant has not proved that the MI analysis was in fact shared with the team – in the sense that her colleagues would see it – as opposed to the line managers responsible for the staff involved. There was no disadvantage in the preservation of a record of that information by the respondent, since it is a factual document showing performance against target. It is not clear that the sharing of that information around line managers had any impact upon the claimant, and there is no basis for her contention that the MI analysis was actually shared with the team, nor that it caused her substantial disadvantage on the basis of her disability.

[181]The second PCP relied upon by the claimant was that the respondent required employees to work from the office. This is unhelpfully vague in its language, but the Tribunal proceeded on the basis that the claimant was complaining that she was required to attend the office for at least part of the week (and initially 3 days per week).

[182]However, it is plain that the respondent did, over an extended period of time, allow the claimant to work from home for a significant part of the week, and from late 2023, almost exclusively from home. As a result, we are unable to find that the respondent applied the PCP as drafted, as they did not require employees to work from the office. We heard evidence from Mr Hazell that he is permitted to work from home for part of the week, and as a result, the evidence demonstrates that the PCP was not applied in the way asserted.

[183]The respondent’s submission identified that the issue for the claimant was that the arrangements in relation to her working from home were not formalised. That was not raised by the claimant or on her behalf until late in 2023, when a draft plan was presented to the respondent by Mr Hazell on the claimant’s behalf, and accepted. However, there is no evidence that this would have amounted to a change in the arrangements which were actually in place for the claimant, other than to put in place a formal plan to this effect.

[184]We addressed, then, the proposed adjustments which the claimant argued should have been put in place in order to avert the alleged substantial disadvantage caused to the claimant.

[185]Firstly, the claimant said that the respondent should have formalised changes to targets in the MI reporting, so that the claimant’s name would not appear at the bottom of the league tables despite achieving the targets. We have not found that the claimant suffered a substantial disadvantage as a result of the MI analysis and reporting, but it is not clear how this would have removed any such disadvantage. The claimant’s performance would still have been visible to the line managers, and known to her own line managers, who also knew about her adjusted targets, and accordingly no difference in treatment would have arisen had the reporting process been changed.

[186]Secondly, being removed from the MI reporting process does not amount, in our view, to a reasonable adjustment. The claimant, while being granted a number of adjustments by her managers, was able to carry on working as a result. It is not clear how this proposed adjustment would have assisted the claimant in either returning to or continuing at work. If she were at work, it would not be reasonable to remove her from the reporting process altogether, since it is legitimate for an employer to survey the performance of its staff against targets which are known to the staff and managers even where that employee is disabled. It is unclear why the claimant believes she should have been accorded that adjustments, since monitoring her performance against targets is something which any employer would require to do while she remained at work. The claimant worked in a sales team, and it is axiomatic that a sales team will be measured against targets (and rewarded accordingly).

[187]Thirdly, formalising the claimant’s working from home arrangement did not amount to a reasonable adjustment, in our judgment. The claimant’s complaint was that she received regular questions from her line manager asking her when she would attend the office. In our judgment, the claimant’s manager was simply highlighting the fact that it was expected that the claimant would attend the office from time to time, and when the flexible working request was submitted, the claimant not only understood this but took it into account by the nature of her request. The claimant’s manager did no more than inquire of her, in their regular contact sessions, when she might be in a position to attend the office. It is plain to us from the evidence that the claimant believes now that she should have been entitled to work permanently away from the office, but at the time that was not what she asked for. It was entirely reasonable for the respondent to make these inquiries; it went no further, so that the respondent did not in any way threaten the claimant with sanctions in the event that she did not change her arrangements. In any event, formalising the arrangement recognises that there was an arrangement already in place, and that amounted, in our view, to the adjustment which was put in place.

[188]It is our conclusion that the respondent did not fail to make reasonable adjustments as claimed by the claimant. The respondent did put in place a number of reasonable adjustments for the claimant.

[189]They took no formal action against the claimant in respect of her absence for approximately 3 years; it was never clearly explained to us why they took no such action, but that they did not amounted to an adjustment to the policy in place for managing long term absence, to the claimant’s advantage and benefit.

[190]The respondent regularly referred the claimant to OH in order to carry out a proper and full assessment of her fitness to work.

[191]The respondent granted the claimant access to the Employee Assistance Programme and other mental health supports.

[192]The respondent reduced the claimant’s performance targets, and agreed with her and Mr Hazell the level at which that was to be placed.

[193]The claimant was granted flexibility in her working hours, in an attempt to help her find a suitable working schedule which would allow her to carry out the exercises and recommended actions for her treatment.

[194]The claimant was granted flexibility for working from home from July 2019, and thereafter given considerable freedom in when she could work from home, by the respondent.

[195]The claimant was given flexibility to allow her to attend medical appointments, and to exercise.

[196]The claimant was granted extended absence trigger points, to take into account her disability.

[197]In our judgment, therefore, the respondent did not fail to put in place reasonable adjustments to take account of any substantial disadvantage accruing to the claimant as a result of the application of PCPs by them. This claim therefore fails, and is dismissed. e. Indirect Discrimination i. Did the respondent impose a PCP? The claimant relies on the application of the respondent’s absence management policy to the claimant. ii. Did the PCP put the claimant at a particular disadvantage in comparison to others? The claimant alleges that the application of the policy resulted in formal absence warnings despite the claimant being more prone to disability-related absences. iii. What was the reason for imposing the PCP? iv. Was the aim of the PCP legitimate? v. Was the PCP a proportionate means of achieving that aim or was there a less discriminatory way of achieving it?

[198]The respondent’s position is that they did not apply the PCP to the claimant, in that they did not apply the provisions of its absence management policy to the claimant. This is correct, in our view. The fact that they took no action under the policy for approximately 3 years after the claimant’s absence began to become a concern demonstrates that the policy was not applied as it should or could have been to employees in her position; further, the extension granted by adjustment to the triggers for action under the policy is another indication that the policy was not applied to the claimant, but its provisions were alleviated for her.

[199]As a result, we cannot find that the claimant has made out that the PCP alleged was applied to her.

[200]In any event, we cannot find that the PCP, even if it were applied to her, caused her any disadvantage in comparison to others not suffering from a disability. While the claimant was taken, eventually, through the process of issuing absence notices, no further action was taken against her, and no disadvantage arose to her from this process; indeed, it is quite clear that she was not treated according to the terms of the policy, but was granted more time than others might have been. Any member of staff with a significant absence record, whether disabled or not, would have been treated in the same way, and it is therefore our view that no disadvantage, substantial or otherwise, was imposed upon the claimant by the respondent in this process.

[201]Even by comparison with non-disabled employees who are not issued with absence notices, we still find that there was no disadvantage to the claimant.

[202]Accordingly, we find that the claimant’s claim of indirect discrimination fails, and must be dismissed. f. Harassment i. Has there been unwanted conduct relating to disability? The claimant alleges that this is the daily publishing of the Management Information to the Distribution Department. ii. Did that conduct have the purpose or effect of: 1. Violating the claimant’s dignity; or 2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

[203]The claimant’s allegation here is that the daily publishing of MI analysis to the Distribution Department amounted to harassment on the grounds of

[204]As has been established above, the claimant faces a number of difficulties here. She must demonstrate that the conduct in question was directed at her protected characteristic, rather than its effect, and in this case, it is plain that the claimant was treated no differently to any other member of staff in the AMU. The act of producing MI analysis in order to allow the respondent to assess its own performance against certain targets is not, of itself, an act of harassment; indeed, it is clear that it is part of the work of a sales department in ensuring that it is performing to the standard required by the respondent.

[205]The data was not published to the Distribution Department, and in our view, the claimant was confused about this. The evidence demonstrated that the data was not published at all but distributed to the line managers in that department. That appeared to us to be entirely legitimate, and irrelevant to the claimant’s disability that it was done for this purpose.

[206]In our judgment, the use of MI analysis data was appropriate and did not have either the purpose or effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

[207]This falls very far short of amounting to conduct which had the purpose or effect of harassing the claimant on the grounds of her disability, and proceeds, in our view, upon a misunderstanding as to the scope of distribution of the data.

[208]Accordingly, it is our conclusion that the claimant’s claim of harassment on the grounds of disability must fail, and it is dismissed. a. Jurisdiction i. Was the claim form submitted more than 3 months (plus the period for Early Conciliation) after some of the conduct complained of? ii. If so, did that conduct form part of a chain of continuous conduct which ended within 3 months of the claim form being submitted? iii. If not, would it be just and equitable for the Tribunal to hear that part of the claim which relates to the conduct which occurred more than 3 months before the claim was submitted? iv. The respondent accepts that the claimant was disabled at all material times by virtue of the following impairments: 1. Borderline personality disorder; 2. Complex Post-Traumatic Stress Disorder (C-PTSD); and 3. Anxiety and depression. v. The respondent does not admit that it knew or should reasonably have known that the claimant had a disability.

[209]We returned to this part of the List of Issues, having dealt with the substantive claims, to deal with the issue of time bar relatively briefly.

[210]The claimant’s claim of direct discrimination in relation to the January 2023 email, about which she became aware in May 2024, was presented out of time, in the respondent’s submission. She notified ACAS of her intention to make a claim against the respondent on 17 July 2024, within 3 months of her becoming aware of the matter; and presented her claim to the Tribunal on 25 September 2024.

[211]Her position was that she knew that she had three months within which to present her claim to the Tribunal, but that she may have misunderstood the legal position. She was a member of the trade union UNITE, which she described as not particularly helpful, but she could not remember in evidence when she contacted them.

[212]Even with the extension of time granted by the Early Conciliation Scheme, the claimant’s claim of direct discrimination was presented out of time. The question for us is whether or not it was then submitted within such further time as the Tribunal regards as just and equitable.

[213]In light of the guidance in British Coal Corporation v Keeble and Ors

1997 IRLR 336

, EAT, we considered the length of, and reasons for the delay in this claim. We consider that it is appropriate to consider the time to start running from the point when the claimant received the fruits of her SAR to the respondent, in which she then became aware of the email relating to the January 2023 conference. The exact date on which she received that response is not clear to us, but it was either in May or June 2024. If it were June, then with the extension granted through the Early Conciliation process, it was presented in time; if it were no earlier than 26 May, it was presented in time.

[214]That is an unsatisfactory position, but in these circumstances we take the view that the delay was relatively short.

[215]We must take account of the prejudice relative to each party. Given the findings on the substantive issues above, it may be thought that there is no prejudice to the respondent in allowing the claim to proceed; however, the respondent has plainly had to commit significant time and resources to the process of defending all of the claims. It is our view, though, that they have not suffered significant prejudice since they have been in a position to present their defence by oral and written evidence.

[216]On balance, it is our conclusion that it is just and equitable to allow the direct discrimination claim to proceed, on this basis.

[217]With regard to the section 15 claim, the respondent argues that the claim relating to the Back on Track Plan became time-barred in May 2024, and accordingly the delay was a period of some 5 months. The claimant has not given a clear reason for any delay in relation to this claim, other than that she was lacking in significant assistance from her trade union or elsewhere in obtaining advice about these matters.

[218]Once again, however, the prejudice to the respondent has, in effect, been minimal, on the basis that they have been able to present a full defence (successfully) to this claim, and accordingly, the Tribunal permits this claim to proceed on the basis that it is just and equitable to do so.

[219]With regard to the section 15 claim relating to the email in January 2023, we consider that the same issues apply as in the direct discrimination claim and therefore that it is just and equitable to allow this claim to proceed.

[220]With regard to the claim of failure to make reasonable adjustments, relating to the failure to formalise the home working arrangement, this related to a period from 2019. The delay was one of approximately 5 years in presenting the claim. No reason was given for such an extensive delay.

[221]While the claimant has not succeeded in this claim, and the respondent has been able to present significant evidence in order to defeat it, the Tribunal considers that in all the circumstances the prejudice to the respondent in having to do so has been significant, and that it outweighs the prejudice to the claimant of losing the right to proceed with her claim under this heading (albeit that she did, since time bar was reserved to the full Hearing with the agreement of the parties). As a result, we have found that the extensive delay in presenting this claim, without any clear explanation from the claimant as to the reason for it, means that it would not be just and equitable to allow it to proceed, and accordingly, this claim is dismissed for want of jurisdiction.

[222]With regard to the claimant’s claim of failure to make reasonable adjustments relating to the failure to adjust the publication of the MI analysis, this claim was, in the respondent’s submission, time-barred in February 2024. No clear explanation was given by the claimant for the delay which subsequently ensued in presenting this claim to the Tribunal, other than that she was confused about time limits and unable to obtain assistance from her trade union.

[223]The delay in this claim was significant, in our judgment, and accordingly we do not consider that a satisfactory explanation has been provided by the claimant in this regard.

[224]The prejudice to the respondent was significant, again, on the basis that they had to collate a significant amount of information in order to present a defence to this claim, and while they were able to do so, it is likely that this created considerable inconvenience and expense for them to do so.

[225]In our judgment, this claim must be dismissed for want of jurisdiction on the basis that it is not just and equitable to allow it to proceed.

[226]Finally, the indirect discrimination claim related to the respondent’s reliance upon the absence management process. As the respondent points out, the second absence notice was issued on 4 October 2023, which was clearly within the claimant’s knowledge. She has given no clear reason as to why she did not present a claim at an earlier stage than September 2024, and the delay is very significant, amounting to approximately 8 months.

[227]The prejudice to the respondent was significant, in that they had to produce considerable amounts of evidence in order to defend this claim, and it is likely that this caused them considerable inconvenience and expense.

[228]In our judgment, it is not just and equitable to extend time in order to allow this claim to proceed, and it is therefore dismissed for want of jurisdiction.

[229]The claimant’s claims therefore fail, and are dismissed. 5 August 2025