Ms S Nicholas v Rabart Decorators Merchants Ltd: 6001763/2023

EMPLOYMENT TRIBUNALS

Case No 6001763/2023

Venue Bristol

Hearing 20 to 23 January 2025

Between

Ms S NicholasClaimant

Rabart Decorators Merchants LtdRespondent

Before

Employment Judge J Bax

In person for claimant

Mr M Todd (instructed by counsel) for respondent

Date 23 January 2025

JUDGMENT

[1]The Respondent contravened section 39 of the Equality Act 2010 and the Claimant succeeded in claims of discrimination arising from disability and a failure to make reasonable adjustments. The Claimants other claims were dismissed.

[3]By consent the Respondent shall pay the Claimant the sum of £14,250 in respect of injury to feelings.

REASONS

[1]In this case the Claimant claimed that she had been discriminated against on the grounds of disability and had been constructively dismissed. The Respondent denied the claims. Background and issues

[2]The Claimant notified ACAS of the dispute on 6 September 2023 and the certificate was issued on 8 September 2023. The claim was presented on 9 September 2023.

[3]The claim was considered at three Case Management Preliminary Hearings. At the hearing on 6 August 2024 the issues were agreed. The Respondent accepted that the Claimant was disabled by reason of dyslexia at all times material to the claim and accepted it had knowledge of the disability from 6 September 2022.

[4]The issues to be determined were discussed at the start of the hearing and confirmed as follows:

[5]The allegations of unfavourable treatment were:a. Oliver Jones cancelling weekly meetings in May to July 2023;

b. In May 2023 installing security cameras close to the Claimant’s desk to monitor her;

c. Giving a first warning on 11 August 2023;

d. Giving a final written warning on 7 September 2023;

e. Dismissing the Claimant (constructively).

[6]The something arising in consequence of the disability relied upon was, that the Claimant could be inaccurate with written work, had concentration difficult, was slower to complete tasks and needed additional support. The Respondent accepted that these things arose from the Claimant’s disability.

[7]The Respondent relied upon a justification defence in respect of an aim or need of, being to improve the Claimant’s performance so that she could properly complete the responsibilities of her role. It asserted that the Claimant consistently underperformed for a number of months and it had attempted to resolve the issues informally, however that was unsuccessful. It asserted that it had no option than to implement a formal capability process to effect improvement. There was not a noticeable improvement between July and September 2023 which necessitated warnings. Reasonable Adjustments

[8]The Provisions, Criteria or Practices (“PCPs”) relied upon were:a. Requirement that the Claimant do written work;

b. Requirement to work in the office. The Respondent accepted that it had both PCPs and they were applied to the Claimant.

[9]The Claimant also relied upon a lack of an auxiliary aid, namely Grammarly Pro.

[10]The substantial disadvantage relied upon was that the Claimant’s dyslexia caused her to produce inaccurate written work / caused her concentration difficulties. The Respondent accepted that it had knowledge of the disadvantage caused by the requirement to do written work. It did not accept that it had knowledge of disadvantage caused by the requirement to work in the office or the lack of Grammarly Pro.

[11]The following matters were suggested as reasonable adjustments:a. Providing Grammarly Pro when it was requested on 6 September 2022;

b. Permitting the Claimant to work from home for at least some of her working week after she requested it on 6 September 2022. Harassment claim

[12]The Claimant relied upon the following matters:a. Did Mr Jones constantly criticise the standard of the Claimant’s work and /or fail to offer any constructive support during the course of her employment?;

b. Did Mr Jones and Mr Bush criticise the standard of the Claimant’s work and /or fail to offer any constructive support during the course of competency assessments on 15 June 2023, 20 July 2023, and 11 August 2023?

c. Did the Respondent in May 2023 install cameras above the Claimant’s desk in order to monitor her?

d. In June 2023 did Mr Jones state that “even a six-year-old could use an iPhone” due to the Claimant’s installation of a reader app?

[13]The Claimant also relied upon the allegations of harassment as allegations of direct discrimination in the alternative. Victimisation claim

[14]The Claimant relied upon a protected act of raising a grievance on 15 August 2023. The Respondent accepted this was a protected act.

[15]The Claimant relied upon a single allegation of victimisation, namely the dismissal of her grievance. Discriminatory constructive dismissal

[16]The Claimant did not have two years’ service. The Claimant said her dismissal was a discriminatory dismissal under the Equality Act 2010. Time limits

[17]The Respondent conceded that, with the exception of the allegation in relation the CCTV camera, all of the other allegations were presented within the time limit in s. 123 of the Equality Act 2010. Matters arising in the hearing

[18]The Claimant’s oral evidence concluded on the first day. Overnight she sought to include further documentation in the hearing bundle. The Respondent did not object. The Claimant was recalled and asked some questions about it.

[19]The parties provided written submissions. The Claimant was given additional time, after the Respondent’s submissions, to further collect her thoughts and then make additional oral submissions. Adjustments during the hearing

[20]Reasonable adjustments were discussed at the start of the hearing. The Claimant explained that she might need things repeated and that she should not be given instructions or asked questions too quickly, these things were taken into account. The Claimant was also given additional time to check that she had raised all the points she wanted to and was able to ask additional questions or make additional submissions.

The Evidence

[21]We heard from the Claimant. We heard from Mr Jones and Mr Bush on behalf of the Respondent.

[22]We were provided with a bundle of documents. Any references in square brackets, in these reasons, are references to page numbers in the bundle.

[23]There was a degree of conflict on the evidence.

[24]The Claimant, when giving evidence frequently referred to notes of meetings which appeared to be supportive, however she would say what was actually said at the meetings was not supportive. This was difficult to assess. The Claimant gave evidence that Mr Bush asked, on 23 October, if she had even read what she wrote. The transcript of the recording showed that Mr Bush said “… I need to ask you actually, some of the quality of the work, have you looked at the examples of the quality of the work that we’ve been presenting during the capability hearings.” The Claimant responded by saying “that’s insulting in itself to say that to me, because I am constantly working on it, so how can you say it, have I looked at it, because I am the person that created it.” The question asked by Mr Bush was not ‘had she even read what she wrote’. She was asked if she had looked at the examples. This was a misinterpretation by the Claimant. We concluded that the Claimant had misinterpreted a number of things said to her and that her recollection of what had been said was not always accurate. We were not satisfied that the meeting notes were inaccurate. We were satisfied that the content of the meeting notes were contemporaneous, clear and detailed. Further the notes were not challenged at the time.

The facts

[25]We found the following facts proven on the balance of probabilities, after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

[26]The Respondent is a family run decorators merchants business. It had eleven decorating centres in South Wales and Southwest England and a small management structure.

[27]The Respondent had a capability policy. After an informal stage, there were three stages. Action which could be taken after the first meeting was a written warning, after the second meeting a final written warning could be issued and after the third meeting the employee could be dismissed. If a capability hearing was convened, the policy said the employee should be made aware of the standards and why they have not been met. The Respondent should try and ascertain the reason and identify what could be done to help improve. The Respondent was to work with the employee to agree targets for improvement and then confirm the outcome and set a clear time frame and expectations for any review period. [p373-374]

[28]The Claimant started her employment with the Respondent on 6 June 2022 as a marketing assistant. Her title was subsequently changed to marketing coordinator.

[29]The Claimant was, at all material times, disabled by reason of dyslexia. The following things arose in consequence of the dyslexia. The Claimant could be inaccurate when undertaking written work and have concentration difficulties. She was slower when completing tasks and needed additional support.

[30]The Respondent accepted that, on 6 September 2022, the Claimant informed it about her dyslexia and it had knowledge of the disability at all material times.

[31]The advertisement for the Claimant’s role set out that the Respondent was looking for someone who was creative and proactive, with an eye for colour and design. The primary focus of the Claimant’s role was to engage with the management team to help create and develop content for all of their communications and marketing options. This included social media, website and press. This involved design and creation of images and general content for promotional and marketing needs, production of marketing plans, monitoring social media platforms and supporting marketing initiatives and promotions. The content creation involved photography, graphic design and writing copy for blogs, social media and advertisements. She was also involved in event planning and the promotion of those events. Monitoring social media was done by using ‘Loomly Analytics’, an electronic programme which analysed posts on the Respondent’s various social media accounts and provided data. The Respondent also considered that the Claimant was also to act as ‘gatekeeper’ for other employee’s social media content, to ensure that quality was maintained.

[32]We accepted that this was a new role, which was developing over time. Changes were made as it developed.

[33]The Claimant’s line manager was Mr Jones, Group Systems Manager. Mr A Bush was Director of Commercial Services.

[34]We accepted the Respondent’s evidence that the output of the marketing coordinator was very visible and the accuracy of the content was crucial. Mr Jones initially ensured all of the Claimant’s work was reviewed by him. We accepted that he would have done this for any new starter.

[35]The Stroud office was open plan and had a meeting room, next to which was a small room used as a store and for the preparation of displays. The meeting room was used for senior management meetings. The partition between the two rooms was thin and not soundproof. In the small room the discussions in the meeting room could be heard. The Claimant had a desk in the open plan section adjacent to Mr Jones’ desk as part of a group of four desks. Next to the Claimant’s desk was a secondary paint tin label printer. We accepted that the printer was noisy. In the office, at least one dedicated employee would answer the telephone in relation to enquiries. On the floor above was a gym, from which intermittent noise could be heard. The gym business had no relationship with the Respondent and was another tenant of the Respondent’s landlord.

[36]The Claimant used a programme call Grammarly, which helps spot spelling and grammatical errors in written text. Grammarly is free software. There is a ‘paid for’, Grammarly Pro version, which costs about £125 per year. It was not explained to the Tribunal what the difference was between the two programmes. It was not explained how Grammarly Pro would have provided greater assistance to the Claimant, to an extent where the Tribunal could understand what appreciable difference there would have been. There was no documentation in the bundle explaining the difference between the two versions.

[37]On 6 September 2022, the Claimant attended a 3 month review meeting with Mr Jones. The Claimant’s witness statement said that this was the start of ongoing dissatisfaction with her work, we rejected that evidence. The Meeting notes recorded that the Claimant said she was really happy at work and loved the role. It was more reactive than she expected. She said Mr Jones was very supportive but could tend towards micro-management and her confidence had been knocked a bit early on. This was due to re-writing or changes to what she had done, but she understood why it was necessary. Mr Jones explained that the work was in the public eye and because they were only 3 months in, he had been more hands on to check everything was OK. He said he would try to be mindful of his management style. In cross-examination the Claimant accepted that Mr Jones had not been critical. She also discussed the dyslexia and said she managed it by using Grammarly and she liked to plan ahead as there was a lot to keep on top of. The Claimant asked for tripod and a different keyboard, which Mr Jones said he would buy. The Claimant asked if she could work from home one day a week and Mr Jones said it would be considered but a laptop would need to be obtained and he did not have a problem with that. Mr Jones said she had made a really good start. He was pleased with how things looked when they went out and also with the growth of the social media pages. He considered there needed to be some more attention to detail and he suggested she took time to check phrasing, spelling and the information required on each post, before she sent it to him to proof. The Claimant accepted that Mr Jones was supportive in this meeting and we did not accept that he was being critical.

[38]Following this meeting Mr Jones tried to be more hands off in his style of management.

[39]At catch up meetings on 3 October and 7 and 30 November 2022, the notes recorded that Mr Jones was pleased with the social media numbers. The Claimant agreed in cross-examination that, in those meetings, Mr Jones was being supportive. The Claimant did not suggest that Mr Jones was not supportive or that she asked for Grammarly Pro.

[40]The Claimant gave evidence that she raised an informal grievance with Mr Jones, about Mr Jones on about 3 January 2023. She did not provide an explanation in her witness statement as to what was raised and she did not explain in oral evidence. There was not a document in the bundle explaining what was raised. Mr Jones did not accept that a complaint was raised about him and had no recollection of it. He thought that, if anything, it was directed at another colleague. The Claimant e-mailed Mr Bush on 4 January 2023, asking how to send a formal grievance, however she did not say what it was about. Mr Bush explained she should write to him, setting out what the key issues were and to say it was formal grievance. We accepted the evidence of Mr Bush that did not receive a further e-mail from the Claimant and that he had no idea as to whom or to what the grievance related.

[41]On 2 March 2023, the Claimant attended a review meeting with Mr Jones. She said that things changing and evolving was a good thing and she was being trusted more to be left on her own. She enjoyed the job. She said that there were still some comments from colleagues about spelling. Mr Jones told her to say she was dyslexic and was trying and to be respectful. Mr Jones noted that Grammarly had made a big difference and he had to make fewer amendments. The training on the products was going well. The Claimant felt that she was exceeding expectations and the Loomly stats were getting better and better. Mr Jones told her that she had really got into the flow and he was happy for her to get on with it more. He thought her presentation at the manager’s meeting was really good.

[42]In cross-examination the Claimant said that although the minutes appeared supportive, that was not the reality. We rejected that evidence. We accepted that Mr Jones had seen improvement in her work and he was happy to step back and manage her less, which he did.

[43]In about May 2023, a 360° CCTV camera was installed on the ceiling of the office. We rejected the Claimant’s assertion that the camera was installed to monitor her and accepted the Respondent’s evidence on this point. The camera was situated in the middle of the room above 4 desks. Two of the desks were used by the Claimant and Mr Jones. We accepted that the camera was installed as part of general security improvements across the various decorating centres, which also had cameras installed. We accepted that the CCTV company selected the position of the camera so that it gave the best 360° view of the office. We also accepted that the footage was only monitored at times outside of working hours and when the alarm boundaries had been activated.

[44]On 16 May 2023, Mr Jones and Ms Sutter met the Claimant to discuss her role. The Claimant said that she was struggling with her workload and did not see the point in what she was doing, because her work was often reworked. She was wondering whether she was right fit for the Respondent. She was asked about the dyslexia and she explained it took her time to write things. She was struggling with jumping from one thing to another and that rewrites were demoralising. Mr Jones said that the work she did was public and they wanted suppliers to be happy with what they saw. At this stage, the Claimant was being asked to write two social media posts a day, a blog every 2 weeks and promote events. The Claimant accepted in crossexamination that it was fair for the Respondent to expect content to be of a high standard. We accepted Mr Jones’ evidence that he had expected her work to meet increasingly higher standards and she would be more selfsufficient. By this time, the Claimant was using both Grammarly and ChatGPT to assist her with her written work.

[45]Attached to the meeting notes were notes on a colour drenching blog. The Respondent sought to characterise the notes as really stylistic matters. There were some stylistic matters, such as saying what type of blue was in the picture. However there were also notes about missing commas or unnecessary commas and capital letters. There were comments about phrasing not making sense and Mr Jones’ rewording what had been said or changing the punctuation. In cross-examination the Claimant accepted that some things were stylistic, however she also said that it was not made clear how Mr Jones wanted things to be written and she was guessing. She accepted that there was nothing wrong with giving feedback, however she said she was under pressure with the workload and the ‘little words she did wrong were an issue’.

[46]At the meeting on 16 May 2023, Mr Jones said that he would like to have a catch up meeting every week. Between 16 May 2023 and the end of July 2023, Mr Jones had four catch up meetings with the Claimant. In August 2023 there were three catch up meetings. The Claimant claimed that the catch up meetings were cancelled due to something arising out of her disability and suggested that Mr Jones did not want to give her his time, this was not accepted by Mr Jones. During cross-examination, the Claimant accepted that it did not appear that the cancellations were due to her disability. We accepted that Mr Jones was very busy as Systems Manager and he had responsibilities at other sites and he also took some annual leave. We accepted that he had busy role and that he wanted to try and have the meetings with the Claimant on a weekly basis, however his other commitments meant it was not always possible to have a formal catch meeting every week. We accepted that he undertook the review of work by e-mail and that the meetings were designed to be a general catch up.

[47]At the end of May/early June 2023, some of the Respondent’s suppliers orally raised with the directors concerns about the quality of the published posts. This was expressed as not being happy with the approach or the quality of social media posts. The Respondent was not given specific examples of what the concerns related to and it did not ask the suppliers for the specifics. We accepted Mr Bush’s evidence that, in hindsight, they should have asked questions about what the problems were. We accepted that the suppliers had provided funding to the Respondent for marketing and for the Claimant’s role. We accepted that the suppliers wanted to see a good return on their investment. Mr Bush asked Mr Jones to address this with the Claimant.

[48]From this time Mr Jones started to record the number of posts submitted by the Claimant for approval, against the numbers approved or requiring edits/reworking. Mr Jones was concerned about the following issues: formatting, frequent spelling and grammatical mistakes, phrasing (described in his witness statement as poorly constructed sentences and lack of appropriate context), inaccurate information, layout and hyperlinks hashtags and logos, duplication and perspective (referred to in the witness statement as inconsistent use of first and third person). The Respondent had not been considering the number of approved posts before this.

[49]Mr Jones considered that some of the Claimant’s work needed to be redone. He understood that that part of the disability involved difficulty with change, but he thought a new approach was needed to change the output and to be able to monitor it.

[50]On 5 June 2023, Mr Jones e-mailed Dara and the Claimant, following a training session about paint products, saying he would try to spend 30 minutes a couple of times a week with both of them. They could then do further research the next day and he suggested using a chart for their notes/references. This additional training did not happen. Dara had said she did not need it and we accepted that Mr Jones was unable to find sufficient time in his week to provide it.

[51]From 12 June 2023 the Claimant started to provide Mr Jones with a weekly task sheet as to what she was going to do. We accepted that Mr Jones’ intention was to provide better structure. The Claimant found that preparing the task sheet was time consuming.

[52]On 14 June 2023, there was a discussion between Mr Jones and the Claimant. The Claimant was trying to install an audible reader onto her work iPhone. The Claimant’s and Mr Jones’ personal telephones were android devices. We accepted Mr Jones’s evidence that he did not know that the Claimant was trying to install a reader. The Claimant was having difficulty in installing the app. Mr Jones said words to the effect of “c’mon even 6 year olds can use iPhones these days”. The Claimant found this offensive. We accepted Mr Jones’ evidence that he was referring to both of them being about the same age and that iPhones were not easy to use, but young children seemed to know how to operate them. We accepted that this was intended as a light hearted comment, however the Claimant did not take it that way. Mr Jones denied it was related to dyslexia and suggested it was about their age.

[53]On 15 June 2023, the Claimant attended a meeting with Mr Jones to discuss her performance. We accepted that this was an informal meeting. An action plan was set up [p119-120]. The Claimant had a goal of doing up to two social media posts a day and she was asked to send a schedule of her intended posts. The goal was to have the fourteen posts completed and schedule by the end of the following week. There was a goal to produce a draft blog of 500 to 1,000 words by the end of the following week, which would be followed by feedback and with a view to publish it on 3 July 2023. There was also a goal with a Plymouth event taking place the following day. It was said they would try to have a weekly meeting, but if anything cropped up to ask him. A further meeting was scheduled for 20 July 2023. The Claimant suggested that her role was more than one person could manage. We accepted that Mr Jones reduced the Claimant’s workload at this time.

[54]Mr Jones was to review the Claimant’s work, however because some of the considerations would be subjective, Mr Bush also reviewed the work.

[55]After the meeting, the Claimant sent her dyslexia assessment and various advice links to Mr Jones. We accepted that this was at the request of Mr Jones, who wanted to better understand how the dyslexia affected the Claimant and to try and make changes. Mr Jones read the information and sent a further e-mail saying that the overall goal was to support her and provide her with a clear structure so that the desired outputs were achieved. He asked if breaking e-mails up into separate e-mails or chunks or bullet points would assist. The Claimant said that bullet points would be good. Mr Jones then sent an e-mail with the goals bullet pointed. The Claimant said that not all communications afterwards were sent in this way. We accepted that not all e-mails were bullet pointed as intended.

[56]The Claimant’s evidence was that on 23 June 2023 Mr Peckitt invited her to a meeting for a reprimand. She said that Mr Peckitt misunderstood the task she was assigned and reprimanded her harshly verbally and by e-mail. The Claimant relied upon an e-mail dated 23 June 2023 in which Mr Peckitt said, “thanks Shalize- for now I don’t want anything doing other than the mail chimp draft for approval. Can you send that to me to see when ready.” This followed the Claimant sending some adverts and saying she was working on the invitation. We did not accept that there was a harsh e-mail.

[57]The Claimant gave evidence that on 13 July 2023, she was monitored by Mr Bush and two others, who watched her for 40 minutes. Mr Bush accepted that he was in the office and was attending a meeting in the meeting room. He denied they were sitting in the office or watching the Claimant. We preferred the evidence of Mr Bush.

[58]On 16 July 2023, in advance of a meeting on 20 July 2023, Mr Jones sent the Claimant an e-mail about feedback. In the e-mail he said he thought that up to two posts a day was achievable, which had been a reduction from the original 3 to 4 going out. He gave her feedback on fifty-eight posts. He asked for a schedule for 18 to 31 July 2023 and said not to create any additional social media content unless it was on the schedule or approved as an addition.

[59]On 20 July 2023, the Claimant attended a second informal capability meeting with Mr Jones. He set out 14 action points, which included: flagging posts on Loomly as a draft if it was being worked on, to decide how to best use the feedback table, more face to face feedback on posts, Mr Jones only had time to review 14 to 28 posts a week and he would try to respond within 24 hours, a new keyboard would be purchased, the working from home request would be considered, and the Claimant would utilise ChatGPT more. The goal of up to two posts a day continued, as did goals of two blogs a month and supporting events. A further meeting was set for 11 August 2023.

[60]The Claimant was spoken to about a graphic on a post about a product called ‘Oil Out’. When Mr Jones saw it, he thought that the Claimant had designed the graphic and it was difficult to read some of the text across the image. An external party had designed the graphic and the Claimant explained that she had not done it and it had been used as a label on tins in stores. The graphic had been approved by others. Mr Jones said that he did not include this post as part of his review and that he tried to focus only on the Claimant’s work. The Claimant gave evidence that other work she had not done was taken into account, however no specifics were given. We accepted that it was likely a small amount work was considered where other people had input. The majority of the pieces of work considered by the Respondent, was work undertaken by the Claimant.

[61]On 25 July 2023, the Respondent ordered the Claimant a new keyboard and colour screen overlays for her computer monitors.

[62]At about this time the Claimant’s request to work from home was refused. The decision was taken at a director level and was not the decision of Mr Jones. The reasons given by the Respondent were that it did not have a laptop available. Mr Bush said that the Claimant was struggling and needed support and that it was thought she should be in the office to mitigate it and the loss of support would be more detrimental. He said this could have been communicated better. One member of staff worked permanently from home as an account manager, which was a position set up during covid-19 restrictions. Mr Jones on rare occasions worked from home, however he stopped because he found working from the office better.

[63]The Respondent did not consider the room next to the meeting room to be appropriate for the Claimant to use on the basis that it was not sound proof and confidential matters could be overheard.

[64]The Claimant also asked for a third screen. Mr Jones investigated this with the IT provider and was told that it was not possible with their computer equipment, in that it would only support two monitors.

[65]Mr Jones was aware that the Claimant was having difficulty with noise in the office, however no questions were asked of the Claimant about why noise was problematic. We accepted that the noise made it difficult for her to concentrate and was distracting for her. It was suggested that the Claimant’s desk was moved. The Claimant was involved in the repositioning of her desk, so that she was away from the printer. From this time the Claimant was allowed to work wearing earphones.

[66]On 30 July 2023, the Claimant attended her doctor and had appointment about stress at work.

[67]On 31 July 2023, the Claimant was sent feedback on a blog post, the comments made included concerns about phrasing, broken hyperlinks, images, perspective of person writing, capitalisation, content, missing words and punctuation. When cross-examined about the feedback the Claimant said that she thought it was about the Respondent not wanting to spend so much time checking her work.

[68]On 2 August 2023, the Claimant’s desk was moved. The area in which she worked was still noisy, although not as noisy as before.

[69]On 11 August 2023, the Claimant attended a first formal capability meeting with Mr Jones, Mr Bush and Karen. At the meeting, discussion took place about relocating the Claimant’s desk and the provision of a new keyboard and colour overlays. Further, that the feedback had been changed and a new and improved post schedule format had been created. The discussion related to the core role outputs of social media posts, the blogs and event marketing. A review of the work submitted was undertaken. It was recorded that the post work she had submitted generally had less than a 25% approval rate. The blog had many mistakes.

[70]The Claimant was told that posts needed an 85% approval rating and by the next review date it was expected that three blogs would be live. A review meeting would take place in the week commencing 4 September 2023.

[71]The Claimant was issued with a formal written warning. It was noted that it was essential for a marketing coordinator with one year’s experience to consistently produce high quality outputs with minimal oversight. Work submitted for approval should be nearly complete and require minimal notes, feedback or rework and there had been challenges in meeting that. By the next review on 7 September 2023 she was to produce fourteen social media posts and three blog updates. She was warned if she did not meet the objectives a final warning could be issued.

[72]In cross-examination the Claimant said that she was not given sufficient time to improve and that the reasonable adjustments had only just been put into place. She also thought that the scoring was biased and included other people’s work. We did not accept that there was bias in the scoring or that a significant amount of the work reviewed was done by other people. The posts reviewed were part of the schedule of posts the Claimant created.

[73]On 15 August 2023, the Claimant raised a grievance, in which she said she was being discriminated against. She was also not satisfied with the outcome of the discussion on 11 August, when she was told about the warning.

[74]Mr Thomas, Group Sales and Operations Manager was appointed to hear the grievance. On 21 August 2023, the Claimant attended a grievance meeting with Mr Thomas.

[75]A response to the grievance was sent on 21 August 2023. Mr Thomas partially upheld one complaint, in relation to the competency assessment. This related to information, coming from stores and managers, becoming clouded. He concluded that there was a clear expectation that she would check work sent to her. However, he overall concluded that the competency process was fair.

[76]The Claimant suggested that at a meeting on 6 September 2023 with Mr Bush, he said that the time he was spending working with her was taking too long. Mr Bush was not questioned about this. The Claimant also said that Mr Bush told her that she would be taken off the performance process. The Claimant’s account about what she was told was not consistent. It changed from being told that Mr Bush would like to see her come off the process, to that she was going to be removed from it. We accepted Mr Bush’s evidence that he told the Claimant that he wanted to see her come off the process, but her work needed to be acceptable. He denied saying that she would be removed from the process, we accepted that evidence. On the balance of probabilities, Mr Bush did not tell the Claimant that the time he spent working with her was taking too long.

[77]On 7 September 2023, the Claimant attended a capability meeting. The Respondent did not discuss the Claimant’s grievance with her. There was concern about social media posts having spelling errors, the needs for edits and poor quality. Only three of the twenty-four posts were approved. It was thought it was reasonable for 85% of posts to approved. The Plymouth football blog was written from the wrong perspective and not ready to be published. A Zinsser blog was also not ready for publication and needed edits.

[78]The Claimant was issued with a final warning and told the next hearing would be on 3 October and could result in dismissal. She was also told if there was clear improvement that would not be the case. She was informed of her rights to an appeal and to be accompanied.

[79]The Claimant’s evidence was that the review was biased and it took account of other people’s work. Further there was the overarching issues of not fully understanding what was being looked for. We accepted that the Claimant did not understand what was being looked for. It was difficult from the Respondent’s evidence to understand what it was asking the Claimant to do when writing blogs or posts or what she needed to do, with exception of spelling and grammar, to achieve an approvable post or blog. We accepted it was unclear.

[80]The Claimant asserted that the final warning was given because she raised her grievance. She suggested that it was down to timing and being told that she was taking up too much time and that she was the reason for Mr Jones not completing his work. She also considered that the targets were impossible, when taking account of her other work. She suggested there was a hostile atmosphere towards her, we did not accept that assertion.

[81]On 11 September 2023, the Claimant appealed against the final warning. Mr R Bush considered the appeal. On 22 September 2023, the appeal was dismissed. It was not accepted that the final warning meeting occurred overnight. Mr R Bush referred to the previous meetings in July and August. He concluded that she was warned about the possibility of a final warning. The appeal was dismissed.

[82]The Claimant’s case was that she was consistently criticised for spelling mistakes at the drafting stage, however the Respondent overlooked numerous spelling mistakes on the website. We accepted that the website had, in large part, been written by one of the directors who was dyslexic. The website it was known to be a work in progress and it involved thousands of products.

[83]On 18 October 2023, the Claimant attended a meeting with Mr A Bush to clarify her perspective on the grievance and appeal. At the meeting it was agreed the capability procedure would be delayed. The Claimant suggested that this was done for the Respondent to comply with the law.

[84]At the meeting on 18 October the Claimant’s evidence was that Mr Bush told her that her work was poorly written and she was asked ‘had she even read what she wrote’. The transcript of the meeting showed that Mr Bush said “… I need to ask you actually, some of the quality of the work, have you looked at the examples of the quality of the work that we’ve been presenting during the capability hearings.” The Claimant responded by saying “that’s insulting in itself to say that to me, because I am constantly working on it, so how can you say it, have I looked at it, because I am the person that created it.” We did not accept that Mr Bush said, ‘Have you even read what you wrote.’ Further we were not satisfied that he said her work was poorly written. There were references to some pieces of work, ‘not being good to go.’ We accepted Mr Bush’s evidence that he was trying to draw the Claimant’s attention to the quality issues, but she was not looking at the actual content they had referred to. We accepted that the capability process was stopped and Mr Bush tried to ascertain what the Claimant needed by way of assistance.

[85]In the meeting the Claimant referred to Grammarly Pro, this was the first reference to that programme in the documentation. We were not shown any earlier document which made mention of it. Mr Bush asked the Claimant what the difference was between Grammarly and Grammarly Pro. The Claimant responded that she did not know and would have to look into it. In cross-examination the Claimant said that she needed time to test it to see whether it would be beneficial, however she had since used it in her new job and had found it helpful.

[86]The Claimant said that she made numerous requests for Grammarly Pro. There was not a document referring to it before the meeting with Mr Bush. Mr Jones and Mr Bush both said that the cost was reasonable and if it had been asked for they would have obtained it for the Claimant. We did not accept the Claimant’s evidence on this point.

[87]Mr Bush informed the Claimant that the Respondent would obtain Grammarly Pro. On 25 October 2023, the Claimant was signed off work as unfit due to stress.

[88]On 4 December 2023, the Claimant resigned. In her letter of resignation she said her notice period was 4 weeks and her last day would be 2 January 2024.

[89]A week before the Claimant’s resignation, she saw an advertisement for a better paid job. She applied for the role, attended two interviews and was offered the position. The Claimant accepted the role. The new job started when the Claimant’s notice period ran out.

[90]The Claimant’s evidence was that she had every intention of returning to work. She accepted that she was not ready to resign when she received the final warning. She only decided to leave when she was offered the new job.

The law

[91]As for the claim for direct disability discrimination, under section 13(1) of the EqA 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.

[92]As for the claim for discrimination arising from disability, under section 15 (1) of the EqA a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Under section 15(20, this does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[93]The provisions relating to the duty to make reasonable adjustments are found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first is relevant in this case, namely that 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, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person. However, under paragraph 20(1)(b) of Schedule 8 of the EqA A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know –(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;

(b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

[94]S. 26 EqA provides: 26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[95]S. 27 EqA provides: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule

[96]S. 39 of the Equality Act provides: (2) An employer (A) must not discriminate against an employee of A's (B)— … (c) by dismissing B; … (7)In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a)by the expiry of a period (including a period expiring by reference to an event or circumstance); (b)by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.

[97]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides in section 136(2) that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, by virtue of section 136(3) this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.

[98]Under section 123 of the Equality Act 2010 a complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates (s. 123 (1)(a)). For the purposes of interpreting this section, conduct extending over a period is to be treated as done at the end of the period (s. 123 (3)(a)) and this provision covers the maintenance of a continuing policy or state of affairs, as well as a continuing course of discriminatory conduct.

[99]The remedies available to the tribunal are to be found in section 124 of the EqA. The tribunal may make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; may order the respondent to pay compensation to the complainant (on a tortious measure, including injury to feelings); and make an appropriate recommendation. In addition, the tribunal may also award interest on any award pursuant to section 139 of the EqA. Direct discrimination

[100]With regard to the claim for direct discrimination, the claim will fail unless the Claimant has been treated less favourably on the ground of her disability, than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The Claimant needs to prove some evidential basis upon which it could be said that this comparator would not have suffered the same allegedly less favourable treatment as the Claimant.

[101]We approached the case by applying the test in Igen v Wong

[2005] EWCA Civ 142

to the Equality Act’s provisions concerning the burden of proof.

[102]In order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might suffice. As to the treatment itself, we had to remember that the legislation did not protect against unfavourable treatment per se but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, found an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society-v-Bahl

[2004] EWCA Civ 1070

[103]In Madarassy v Nomura International Plc

[2007] EWCA Civ 33

Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”. The Supreme Court in Royal Mail Group Ltd v Efobi

[2021] UKSC 33

confirmed that Igen Ltd and Ors v Wong and Madarassy v Nomura International Plc remained binding authority.

[104]In Denman v Commission for Equality and Human Rights and ors

[2010] EWCA Civ 1279

, CA, Lord Justice Sedley made the important point that the “more” which is needed to create a claim requiring an answer need not be a great deal.

[105]The function of the Tribunal is to find the primary facts and then look at the totality of those facts to see if it is legitimate to infer that the acts or decisions were done/made on prohibited grounds (Qureshi v Victoria University of Manchester

[2001] ICR 863

). In terms of drawing inferences, in Efobi v Royal Mail Group Ltd

[2021] ICR 1263

Lord Leggatt, after referring to Wisniewski v Central Manchester Health Authority [1998] PIQR 324, said that, “Tribunals should, as far as possible be free to draw, or decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books before doing so.”

[106]In every case the tribunal has to determine the reason why the Claimant was treated as he was (per Lord Nicholls in Nagarajan v London Regional Transport

[1999] IRLR 572

HL). This is “the crucial question.” It is for the claimant to prove the facts from which the employment tribunal could conclude that there has been an unlawful act of discrimination (Igen Ltd and Ors v Wong), i.e., that the alleged discriminatory has treated the claimant less favourably and did so on the grounds of the protected characteristic. Did the discriminator, on the grounds of the protected characteristic, subject the claimant to less favourable treatment than others? The relevant question is to look at the mental processes of the person said to be discriminating (Advance Security UK Ltd v Musa [2008]

UKEAT/0611/07

). The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. The mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele

[2009] IRLR 154

[107]“Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.

[108]The test within s. 136 encouraged us to ignore the Respondent’s explanation for any poor treatment until the second stage of the exercise. We were permitted to take into account its factual evidence at the first stage, but ignore explanations or evidence as to motive within it (see Madarassyv-Nomura International plc and Osoba-v-Chief Constable of Hertfordshire [2013] EqLR 1072).

[109]We needed to consider all the evidence relevant to the discrimination complaint, that is(i) whether the act complained of occurred at all;

(ii) evidence as to the actual comparator(s) relied on by the claimant to prove less favourable treatment;

(iii) evidence as to whether the comparisons being made by the claimant were of like with like; and

(iv) available evidence of the reasons for the differential treatment.

[110]Where the Claimant has proven facts from which conclusions may be drawn that the respondent has treated the Claimant less favourably on the ground of the protected characteristic then the burden of proof has moved to the Respondent. It is then for the Respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic. That requires the Tribunal to assess not merely whether the Respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question.

[111]The circumstances of the comparator must be the same, or not materially different to the Claimant’s circumstances. If there is any material difference between the circumstances of the Claimant and the circumstances of the comparator, the statutory definition of comparator is not being applied (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). It is for the Claimant to show that the hypothetical comparator in the same situation as the Claimant would have been treated more favourably. It is still a matter for the Claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting

[2002] IRLR 288

[112]When dealing with a multitude of discrimination allegations, a tribunal was permitted to go beyond the first stage of the burden of proof test and step back to look at the issue holistically and look at 'the reasons why' something happened (see Fraser-v-Leicester University

UKEAT/0155/13/DM

). In Shamoon-v-Royal Ulster Constabulary

[2003] UKHL 11

, the House of Lords considered that, in an appropriate case, it might have been appropriate to consider ‘the reason why’ something happened first, in other words, before addressing the treatment itself.

[113]The proper approach to section 15 claims was considered by Simler P in the case of Pnaiser v NHS England

[2016] IRLR 170

, EAT, at paragraph 31:(a) Having identified the unfavourable treatment by A, the ET must determine what caused it, i.e. what the “something” was. The focus is on the reason in the mind of A; it involves an examination of the conscious or unconscious thought processes of A. It does not have to be the sole or main cause of the unfavourable treatment, but it must have a significant influence on it.

(b) The ET must then consider whether it was something "arising in consequence of B’s disability”. The question is one of objective fact to be robustly assessed by the ET in each case. Furthermore:

(c) It does not matter in precisely what order the two questions are addressed but, it is clear, each of the two questions must be addressed,

(d) the expression "arising in consequence of" could describe a range of causal links … the causal link between the something that causes unfavourable treatment and the disability may include more than one link, and

(e) the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

[114]When considering a complaint under s. 15 of the Act, we had to consider whether the employee was “treated unfavourably because of something arising in consequence of her disability”. There needed to have been, first, ‘something’ which arose in consequence of the disability and, secondly, there needs to have been unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-vWeerasinghe

UKEAT/0397/14

). Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might be several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police

UKEAT/0057/15

and iForce Ltd-v-Wood

UKEAT/0167/18/DA

). It need not have been the only reason for the treatment; it must have been a significant cause (Pnaiser-vNHS England

[2016] IRLR 170

), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-vUniversity of Edinburgh

UKEATS/0014/17

[115]In IPC Media-v-Millar

[2013] IRLR 707

, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability.

[116]No comparator was needed. ‘Unfavourable’ treatment did not equate to ‘less favourable treatment’ or ‘detriment’. It had to be measured objectively and required a tribunal to consider whether a claimant had been subjected to something that was adverse rather than something that was beneficial. The test was not met simply because a claimant thought that the treatment could have been more advantageous (Williams-v-Trustees of Swansea University Pension and Assurance Scheme

[2019] ICR 230

, SC). Justification

[117]In assessing the legitimate aim defence, the tribunal must consider fully whether(i) there is a legitimate aim which the respondent is acting in pursuance of, and

(ii) whether the treatment in question amounts to a proportionate means of achieving that aim (McCullough v ICI Plc

[2008] IRLR 846

[118]In Hensman v Ministry of Defence UKEAT 0067/14/DM, Singh J held that when assessing proportionality, while and an Employment Tribunal must reach its own judgment, that must in turn be based upon a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. Proportionality in this context meant ‘reasonably necessary and appropriate’ and the issue required us to objectively balance the measure that was taken against the needs of a respondent based upon an analysis of its working practices and wider business considerations (paragraphs 42- 43). Just because a different, less discriminatory measure might have been adopted which may have achieved the same aim, did not necessarily render it impossible to justify the step that was taken, but it was factor to have been considered (Homer-v-West Yorkshire Police

[2012] IRLR 601

at paragraph 25 and Kapenova-v-Department of Health

[2014] ICR 884

, EAT). It is for the tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter (Hardys & Hansons Plc v Lax

[2005] IRLR 726

CA).

[119]The test of proportionality is an objective one.

[120]A leading authority on issues of justification and proportionality is Homer v Chief Constable of West Yorkshire Police

[2012] ICR 704

in which Lady Hale, at paragraph 20, quoted extensively from the decision of Mummery LJ in R (Elias) v Secretary of State for Defence

[2006] 1WLR 20

. As Mummery LJ explained in R (Elias) v Secretary of State for Defence

[2006] 1 WLR 3213

para 151: “the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” He went on, at para 165, to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] 1 AC 69

, 80: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?” As the Court of Appeal held in Hardy & Hansons plc v Lax

[2005] ICR 1565

, paras 31, 32, it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.”

[121]At paragraph 24 Lady Hale said “24. Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer.”

[122]Pill LJ’s comments in Hardy & Hansons plc v Lax

[2005] IRLR 726

in relation to the Sex Discrimination Act 1975 at paragraph 32 also provide assistance in that the statute: “Section 1(2)(b)(ii) [of the Sex Discrimination Act 1975] requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry v Midland Bank plc

[1999] ICR 859

) and I accept that the word “necessary” used in Bilka-Kaufaus

[1987] ICR 110

is to be qualified by the word “reasonably”. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary…” And further at paragraph 33 “The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action.”

[123]A tribunal will err if it fails to take into account the business considerations of the employer (see Hensman v Ministry of Defence) but the tribunal must make its own assessment on the basis of the evidence then before it.

[124]In The City of Oxford Bus Services Ltd trading as Oxford Bus Company v Mr L Harvey

UKEAT/0171/18/JOJ

: (in the context of section 19(2) EqA) - when carrying out the requisite assessment there was a distinction between justifying the application of the rule to a particular individual, and justifying the rule in the particular circumstances of the business (SC decisions of both Homer and Seldon applied). In that case, the ET’s focus had been on the application of the PCP to the claimant; it had failed to carry out the requisite assessment of that PCP in the circumstances of the business (see Hardys & Hansons plc v Lax

[2005] ICR 1565

CA). Reasonable adjustments

[125]In relation to the claim under ss. 20 and 21 of the Act, we took into account the guidance in the case of Environment Agency v. Rowan

[2008] IRLR 20

in relation to the correct manner that we should approach those sections. The Tribunal must identify(i) the provision, criterion or practice applied by or on behalf of the employer; or

(ii) the physical feature of the premises occupied by the employer, or

(iii) the lack of an auxiliary aid;

(iv) the identity of the non-disabled comparators (where appropriate); and

(v) the nature and extent of the substantial disadvantage suffered by the claimant before considering whether any proposed adjustment is reasonable.

[126]It is necessary to consider whether the Respondent has failed to make a reasonable adjustment in applying the PCP or provide the auxiliary aid and whether reasonable steps were taken to avoid the substantial disadvantage to which a disabled person is put by the application of the PCP or the failure to provide the aid (Secretary of State for Justice v Prospere

UKEAT/0412/14/DA

[127]In relation to the second limb of the test, it has to be remembered that a Claimant needed to demonstrate that he or she is caused a substantial disadvantage when compared with those not disabled. It is not sufficient that the disadvantage is merely some disadvantage when viewed generally. It needs to be one which is substantial when viewed in comparison with persons who are not disabled and that test is an objective one (Copal Castings-v-Hinton

[2005] UKEAT 0903/04

[128]Further, in terms of the adjustments themselves, it is necessary for them to have been both reasonable and to operate so as to avoid the disadvantage. There does not have to have been a certainty that the disadvantage would be removed or alleviated by the adjustment. A real prospect that it would have that effect would be sufficient (Romec-vRudham

UKEAT/0067/07

and Leeds Teaching Hospital NHS Trust-v-Foster [2011] EqLR 1075). Knowledge

[129]Para 20(1) of Sch. 1 says that the employer will only come under the duty to make reasonable adjustments if it knows not just that the relevant person is disabled but also that his or her disability is likely to put him or her at a substantial disadvantage in comparison with non-disabled persons. Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known). In view of this, the EAT has held that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:(i) first, did the employer know both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially?

(ii) if not, ought the employer to have known both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? (Secretary of State for Work and Pensions v Alam

[2010] ICR 665

, EAT) It is only if the answer to the second question is ‘no’ that the employer avoids the duty to make reasonable adjustments.

[130]Ignorance itself is not a defence under this section. We have had to ask whether the Respondent knew or ought reasonably to have known that the Claimant was disabled. In relation to the second part of that test, we have had to consider whether, in light of Gallop-v-Newport City Council

[2014] IRLR 211

and Donelien-v-Liberata UK Ltd

[2018] IRLR 535

, the employer could reasonably have been expected to have known of the disability. In that regard, we had to consider whether the Respondent ought reasonably to have asked more questions on the basis of what it already knew and we have had in mind Lady Smith’s Judgment in the case of Alamv-Department for Work and Pensions [2009]

UKEAT/0242/09

, paragraphs 15 – 20.

[131]We also had regard to the EHRC Code of practice on employment paragraph 6, relating to the duty to make reasonable adjustments (2011), in particular paragraphs 6.19 and 6.21: “6.19. [Sch 8, para 20(1)(b)] For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.” “6.21. If an employer's agent or employee (such as an occupational health adviser, a HR officer or a recruitment agent) knows, in that capacity, of a worker's or applicant's or potential applicant's disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment. Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means – suitably confidential and subject to the disabled person's consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act.” Harassment

[132]Not only did the conduct have to have been ‘unwanted,’ but it also had to have been ‘related to’ a protected characteristic, which was a broader test than the ‘because of’ or the ‘on the grounds of’ tests in other parts of the Act (Bakkali-v-Greater Manchester Buses [2018]

UKEAT/0176/17

[133]As to causation, we reminded ourselves of the test set out in the case of Pemberton-v-Inwood

[2018] EWCA Civ 564

. In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the prescribed effects under sub-paragraph (1) (b), a tribunal must consider both whether the victim perceived the conduct as having had the relevant effect (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). A tribunal also had to take into account all of the other circumstances (s. 26 (4)(b)). The relevance of the subjective question was that, if the Claimant had not perceived the conduct to have had the relevant effect, then the conduct should not be found to have had that effect. The relevance of the objective question was that, if it was not reasonable for the conduct to have been regarded as having had that effect, then it should not be found to have done so.

[134]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

it was held that an employer cannot be held liable simply because the conduct has had the prescribed effect, it has to be reasonable that the consequence occurred. Further that it is important not to encourage a culture of hypersensitivity or create liability for every unfortunate phrase.

[135]It was important to remember that the words in the statute imported treatment of a particularly bad nature; it was said in Grant-v-HM Land Registry

[2011] IRLR 748

, CA that “Tribunals must not cheapen the significance of these words. They are important to prevent less trivial acts causing minor upset being caught by the concept of harassment.” See, also, similar dicta from the EAT in Betsi Cadwaladr Health Board-v-Hughes

UKEAT/0179/13/JOJ

. Victimisation

[136]A detriment is something that is to the Claimant’s disadvantage. In Ministry of Defence v Jeremiah

1980 ICR 13

, CA, Lord Justice Brandon said that ‘detriment’ meant simply ‘putting under a disadvantage’, while Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’. Brightman LJ’s words, and the caveat that detriment should be assessed from the viewpoint of the worker, were adopted by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, in which Lord Hope of Craighead, after referring to the observation and describing the test as being one of “materiality”, also said that an “unjustified sense of grievance cannot amount to 'detriment'”. In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: “If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice”

[137]Detriment is to be interpreted widely in this context. It is not necessary to establish any physical or economic consequence. Although the test is framed by reference to a reasonable worker, it is not a wholly objective test. It is enough that a reasonable worker might take such a view. This means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes. (see Warburton v The Chief Constable of Northamptonshire Police

[2022] EAT 42

paragraphs 48 to 51)

[138]The test of causation under s. 27 was similar to that under s. 13 in that it required us to consider whether the Claimant has been victimised ‘because’ she had done a protected act, but we were not to have applied the ‘but for’ test (Chief Constable of Greater Manchester Constabulary-vBailey

[2017] EWCA Civ 425

); the act had to have been an effective cause of the detriment, but it does not have to be the principal cause. However, it has to have been the act itself that caused the treatment complained of, not issues surrounding it.

[139]In Warburton v The Chief Constable of Northamptonshire Police

[2022] EAT 42

when it was held at paragraph 64 that: The “but for” test is clearly not applicable, setting the bar too low. But the “operative” or “effective” cause sets it too high if it leads to the error of looking only for the main or principal cause. Lord Nicholls’ formulation - whether the protected characteristic or protected act “had a significant influence on the outcome” - is the correct test. And “the reason why” is to be preferred to “causation”.

[140]In order to succeed under s. 27, a claimant needs to show two things; that she was subjected to a detriment and, secondly, that it was because of the protected act(s). We have applied the ‘shifting’ burden of proof s. 136 to that test as well. Constructive discriminatory dismissal

[141]In De Lacey v Wechseln Limited

[2021] IRLR 547

, EAT, it was held that a ‘last straw’ constructive dismissal may form the basis for a claim of unlawful discrimination if some of the matters relied upon, though not the ‘last straw’ itself, are acts of discrimination. Where there is a range of matters that, taken together, amount to a constructive dismissal, some of which matters consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach, so as to render the constructive dismissal discriminatory.

[142]The Court of Appeal in Meikle v Nottinghamshire County Council

[2005] ICR 1

, CA, held that once an employer’s repudiation of the contract has been established, it is for the tribunal to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. The fact that the employee also objected to other actions (or inactions) by the employer that did not amount to a breach of contract did not vitiate the acceptance of the repudiation. It is enough that the employee resigned in response, at least in part, to the employer’s fundamental breach of contract.

[143]The EAT emphasised this same point in Wright v North Ayrshire Council

[2014] ICR 77

. There, it noted that advocates frequently interpret Jones v F Sirl and Son (Furnishers) Ltd as meaning that, where the employee has mixed motives for resigning, the tribunal must only look for one principal reason and decide whether this concerned the employer’s actions. This would be an error of law, the employer’s conduct must be ‘an’ effective cause of the resignation but need not be ‘the’ effective cause. The EAT pointed out that this much should be clear from Meikle v Nottinghamshire County Council, and also from the judgment of Mr Justice Elias, then President of the EAT, in Abbycars (West Hornden) Ltd v Ford EAT 0472/07. In Elias P’s words, ‘the crucial question is whether the repudiatory breach played a part in the dismissal’. Even if the employee leaves for ‘a whole host of reasons’, he or she can claim constructive dismissal ‘if the repudiatory breach is one of the factors relied upon’.

[144]A claimant cannot rely upon a breach of contract which he/she has been taken to have affirmed. Affirmation can, of course, have been express, but it can also be implied by inaction and delay, although simple delay is rarely enough. In Chindove-v-Morrisons

UKEAT/0201/13/BA

, Langstaff J said this (paragraph 26); “He [the claimant] may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time….. It all depends upon the context and not upon any strict time test.”

[145]Affirmation was further considered in Leaney v Loughborough University

[2023] EAT 155

, in which the EAT summarised the law as: “20. The innocent party may indicate by some express communication that they have decided to affirm, but affirmation may also be implied (that is, inferred) from conduct. Mere delay in communicating a decision to accept the breach as bringing the contract to an end will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation. But the ongoing and dynamic nature of the employment relationship means that a prolonged or significant delay may give rise to an implied affirmation, because of what occurred during that period. 21. In particular, acts of the innocent party which are consistent only with the contract continuing are liable to be treated as evidence of implied affirmation. Where the injured party is the employee, the proactive carrying out of duties falling on him and/or the acceptance of significant performance by the employer by way of payment of wages, will place him at potential risk of being treated as having affirmed. However, if the injured party communicates that he is considering and, in some sense, reserving, his position, or makes attempts to seek to allow the other party some opportunity to put right the breach, before deciding what to do, then if, in the meantime, he continues to give some performance or to draw pay, he may not necessarily be taken to have thereby affirmed the breach.”

[146]It was held that it is not the passage of time, prior to resignation which gives risk to affirmation, but conduct or other circumstances occurring in that period from which affirmation can be inferred (para 37). The authorities broadly made the point that an employee with long service might reasonably need longer to make up their mind, but the matter is fact sensitive. The tribunal needs to consider the nature of what is at stake for the particular employee in the particular case and the practical implications of the decision whether or not to resign for that particular employee. In a given case lengthy service might provide the context for other more specific factors, such as whether the employee would be abandoning a secure and stable job that would be difficult to replace, or whether resigning would entail the loss of valuable benefits that had been built up over time, and would be hard to replicate (para 45). Conclusions Failure to make reasonable adjustments claims

Conclusions

[147]The Respondent accepted that it had the PCPs of requiring the Claimant to do written work and a requirement to work in the office. It further accepted that it knew that there was a substantial disadvantage in respect of the written work, but denied it in relation to working in the office. One of the effects of the Claimant’s disability was that she had difficulty with concentration and this was accepted by the Respondent. The Claimant’s desk was situated next to a noisy label printer and the office was busy with people answering telephone calls. There was also additional noise periodically coming from the gym above. Mr Jones accepted that he knew that the reason why the Claimant wanted to move her desk was that it was too noisy for her. It is common sense that if there is too much noise it can be distracting and cause issues with concentration. We accepted that the Claimant had difficulties with concentration and was distracted by the noise, which made it harder for her to undertake written work, this put her at a substantial disadvantage. The Respondent did not make any enquiry with the Claimant whether the noise was affecting her ability to concentrate and whether that was causing her difficulties with the dyslexia. The Respondent knew that she was disabled and that there were difficulties with the noisy environment. The Respondent ought to have asked the Claimant questions about the reason for wanting to move her desk and for wanting to work from home. We accepted that the distraction from the noise caused the Claimant difficulties with concentration and that this was most significant with doing the written work. Although the Respondent did not know of the substantial disadvantage in precise terms, it ought to have asked more questions and it would have been reasonable and simple for it to do so. If it had asked those questions it would have been made aware of the disadvantage to the Claimant. We were satisfied that the Respondent had constructive knowledge of the substantial disadvantage.

[148]In relation to the failure to provide Grammarly Pro, we were not satisfied that the Respondent was made aware of its existence until 23 October 2023. Mr Bush then informed the Claimant that it would be provided, however she went off sick and did not return to work. Until the Respondent knew of the programme it would not know that the Claimant was placed at any substantial disadvantage by not having it. A curious feature of the case was the lack of evidence about what Grammarly Pro did and how it would benefit the Claimant. The Claimant did not adduce evidence in relation to the programme, although during closing submissions she attempted to explain it, however by that time her case had been concluded. We were not satisfied what Grammarly Pro would have done or how it would have benefited the Claimant. It was not possible to say whether or to what extent it would have ameliorated or removed the effects of the requirement to do written work or whether the lack of it caused a substantial disadvantage. Therefore in respect of the PCP to do written work and the failure to provide an auxiliary aid we were not satisfied that provision of Grammarly Pro was a reasonable adjustment.

[149]The other adjustments suggested by the Claimant were as follows:a. In relation to the provision of a third screen, this was not possible with the computer equipment the Respondent had. The Claimant was shown how to split her screen and at the time it was requested we did not accept this was a reasonable adjustment for the requirement to do written work.

b. The Claimant also suggested that she could have used the room next to the meeting room. We accepted that the room was not sound proof and that conversations from the meeting room could easily be overheard. The risk of confidential matters being overheard meant that its use by an employee was not reasonable. We did not accept that this was a reasonable adjustment.

c. In terms of working from home, the Claimant was looking for a quiet environment to undertake written work for one day a week. We rejected the Respondent’s contention that it was reasonable to refuse it on the basis that the Claimant needed support and needed to be able to ask questions. She would have been able to ask questions, in person, on the four days she was in the office. On the day at home she would have been able to concentrate on the written work. She was communicating with Mr Jones by e-mail. It was also possible to use video calls or the telephone if someone needed to be spoken to, whilst at home. There was also a suggestion that the Claimant did not have a laptop, however it was not explained why a laptop could not be provided to her. We accepted that if the Claimant had a quiet environment, she would have been better able to concentrate. This would have reduced the pressure on her and enabled her to construct and check her work more carefully. We accepted that it would have significantly ameliorated the disadvantage caused. The seeking of one day a week was reasonable. We concluded that this would have been a reasonable adjustment to both PCPs.

[150]Accordingly there was a failure to make reasonable adjustments and the Claimant succeeded in this claim. The Claimant sought the adjustment at various times and we accepted that when it was last refused the failure to make it was within three months of notifying ACAS of the dispute and the claim was made inside the time limit.

[151]It was accepted that the something arising from the Claimant’s disability was inaccuracy with written work, had concentration difficult, was slower to complete tasks and needed additional support.

[152]We addressed the alleged unfavourable treatment as follows. Oliver Jones cancelling weekly meetings in May to July 2023

[153]We accepted that when Mr Jones said that he wanted to have weekly meetings, it gave an expectation to the Claimant. When there were not weekly meetings she considered that she was not being given as much support as suggested and that this was adverse to her. We accepted that it was unfavourable given that she was about to start on a formal capability procedure and was going through informal meetings in June and July.

[154]We did not accept that Mr Jones made any adverse comments or remarks about dyslexia. We accepted that he tried to understand more about the Claimant’s condition and tried to help her. The Claimant was unable to properly explain why issues with her inaccuracy with written work, concentration difficulties and speed at completing tasks would have caused the meetings to be cancelled. She relied upon an assertion that Mr Jones thought that the time he needed to spend with her was too long. It was common ground that Mr Jones was a busy man. There were just sufficient primary facts from which we could conclude that the time spent with the Claimant could be the reason, and the initial burden of proof was discharged.

[155]We accepted Mr Jones’ evidence that he was very busy and he had a number of offices at which he needed to undertake work. Further he needed to take annual leave. It was relevant that he said he would ‘try’ to have a weekly catch up meeting. It was very difficult for Mr Jones to undertake all of his work and have weekly catch up meetings with the Claimant. He provided feedback in writing on her written work promptly. We accepted that the Respondent proved that the reason why Mr Jones cancelled some of the weekly meetings was because his workload was preventing him from attending or he was on annual leave. We accepted that this was in no way whatsoever influenced by the things arising from the Claimant’s disability. This claim was dismissed. In May 2023 installing security cameras close to the Claimant’s desk to monitor her.

[156]The camera was installed in the office as part of security provisions across all decorating centres, at which cameras were also installed. We further accepted that the location of the camera was chosen by the CCTV company installing the camera. The location of the camera was in the middle of the room and it was coincidental that the Claimant’s desk was under it. We accepted that the camera needed to be in the middle of the room so that it could capture the whole room as efficiently as possible.

[157]The Claimant relied upon an assertion that she was being monitored by it. There was not any documentary evidence in support of that assertion. We further rejected the Claimant’s evidence that Mr Bush and two others sat and watched her for 40 minutes shortly before. We were not satisfied that the Claimant discharged the initial burden of proof that the camera was installed to monitor her.

[158]In any event we were satisfied that the reason for the installation was part of a general security update and that the only time the camera would be monitored would be outside of working hours if the alarm boundaries were breached. We were satisfied that its installation was in no way whatsoever due to the things arising from the Claimant’s disability. Giving a first warning on 11 August 2023 and Giving a final written warning on 7 September 2023

[159]We considered these allegations together. We took into account that there can be more than one link in the causative chain. The Respondent’s case was that the issues with the Claimants written work were generally stylistic. We rejected that contention. The comments on the posts and blogs, to which we were directed, involved comments about punctuation and capital letters. They also related to re-phrasing parts of the text and included references that parts of the text did not make sense. There were also concerns that the Claimant’s writing came from the wrong perspective. Mr Jones’ witness statement identified that the Claimant would not be consistent with writing in the first or third person, and that the phrasing related to poorly constructed sentences and lack of appropriate context. The rephrasing was not merely stylistic.

[160]The Respondent decided to initiate a capability/competency process when some of its suppliers raised concerns about the quality of the posts the Claimant was putting on social media. It was striking that the Respondent did not seek to find out what the exact issues were. The Respondent submitted that it did not matter what the exact issue was because Mr Jones reviewed the work and found that the work was not of sufficient quality.

[161]A significant part of the Claimant’s disability is a difficulty with writing accurately. The comments on the posts showed that the concerns with quality could be due to the Claimant’s difficulty with accurately writing documents. We were not satisfied that the Respondent demonstrated that that inaccuracy was not a significant cause of the placing her on the capability process or for the reasons why she was given warnings. We accepted that the warnings were unfavourable treatment and that they were caused by the difficulty with writing and issues with concentration. We were further satisfied that when under pressure, the Claimant found it harder to concentrate and the task became more difficult.

[162]The Respondent relied upon an aim of properly improving the Claimant’s performance, so that she could complete the responsibilities of her role. We accepted that it was a legitimate aim.

[163]When considering a defence of justification, the burden of proof is on the Respondent. It is necessary to take into account the needs of the business. It must satisfy the Tribunal that it was reasonable and proportionate to impose the warnings. The Respondent put in place some adjustments for the Claimant, however it did not permit home working for one day a week. We were satisfied that if the Claimant were able to work from home, in a peaceful environment for one day a week, she would have found it easier to concentrate and the quality of her work could have been higher. Although her desk was moved, it was not moved until 9 days before the meeting in which she was given the written warning. The keyboard and overlays were ordered when the review meeting was set. This meant that the Claimant did not have the full review period, before the meeting on 11 August, to see if the adjustments made any appreciable difference.

[164]We were also concerned that the Respondent did not find out from the suppliers what their concerns were. The Claimant was informed there were concerns but not what the specifics were. We accepted that if work is not to the required standard it would be reasonable to scrutinise it and seek to improve it. However the Claimant was being informed what was not right, however it was not clear to her what was expected and what the posts and blogs were expected to look like. It was noticeable that the Respondent did not give a clear explanation during the Tribunal hearing as to what its expected standards were and how that would appear. Further it was apparent that some of the work had not been done by the Claimant. The information before the Tribunal suggested that the Claimant was told what was wrong and that the posts had not been approved but she was not clearly told what she needed to do to ensure they were approved. We accepted that the pressure made it more difficult for the Claimant to concentrate.

[165]In the circumstances it would have been reasonable for the Respondent to have allowed the Claimant to work from home one day a week, even on a temporary trial basis. Further a clear explanation and examples, as to what was expected, should have been provided to the Claimant. She should also have been given a clear explanation as to what the concerns from the suppliers were. We accepted that it was important that the material was of a sufficient standard, however there were simple extra things that the Respondent could have done to assist the Claimant.

[166]In the circumstances we were not satisfied, after anxious scrutiny, that the Respondent was reasonable and proportionate in imposing the first warning and the final written warning at the stages it did. Accordingly the Claimant succeeded in respect of both of these allegations. Victimisation

[167]The Respondent accepted that raising the grievance was a protected act. This allegation related to the imposition of the final written warning.

[168]We accepted that a final written warning could be something that an employee would reasonably consider to be to their detriment. The Claimant needed to prove primary facts from which we could conclude that an effective cause of the warning was that she raised her grievance.

[169]During the meeting on 7 September 2023, the Claimant’s grievance was not discussed and it was not referred to in the subsequent warning. The Claimant submitted that Mr Jones was the subject of the grievance and he was involved in the process and the timing of the warning in relation to the grievance suggested that it was an influence. We accepted that this was sufficient to shift the burden of proof onto the Respondent.

[170]The events leading up to the warning were relevant. The Claimant had already started on the capability process. She had attended two informal meetings, been given a reduced workload and subjected to a first warning. The Respondent was in the midst of a performance procedure triggered by concerns from its suppliers. The Claimant was not showing significant improvement in her work at the point she raised her grievance and the Respondent had the same concerns at the time of the final written warning. We noted that the comments about the work were very similar both before and after the grievance. The grievance was investigated and partially upheld. The Claimant was also told that the Respondent wanted to see her come off the performance process. We accepted the Respondent’s explanation that the Claimant’s work had not improved sufficiently and that was the reason for the warning. They were continuing to try and assist her and we were satisfied that the Respondent proved that the Claimant raising her grievance had no influence on the decision to impose the warning. This claim was dismissed. Harassment and Direct discrimination

[171]The appropriate comparator in this case, for the purpose of the direct discrimination claim, was someone in the same role as the Claimant, with the same duties and responsibilities and who had the same experience. That person would also need to have a similar impairment with the written word, concentration, need for support and be slower to perform tasks. The Claimant relied upon a hypothetical comparator.

[172]We approached these allegations by considering harassment first and whether the factual allegation was established. The allegations could not be both harassment and direct discrimination by reason s. 212 (1) of the Equality Act 2010. If the factual allegation were not made out, the allegation of harassment and direct discrimination would fail. If the factual allegation was made out and it was not harassment the test for direct discrimination was applied. Did Mr Jones constantly criticise the standard of the Claimant’s work and /or fail to offer any constructive support during the course of her employment;

[173]We accepted that Mr Jones, from the start of the Claimant’s employment reviewed her work and provided comments and feedback on the posts and written work. It is reasonable for an employer to expect that work is of sufficient quality and if work needs to be improved to explain where things are going wrong. It is also reasonable for an employer not to want to publish material which is of insufficient quality or does not meet the needs of its suppliers. We were conscious that the Claimant found that many comments were being made about her work and that she found this stressful and upsetting.

[174]We did not accept that Mr Jones failed to offer any constructive support through the Claimant’s employment. Mr Jones provided re-phrased text where he thought something should be rephrased and comments about specific issues on each document so they could be easily identified. Mr Jones had a large number of catch up meetings with the Claimant during her employment. He also put in place adjustments when requested by the Claimant, with the exception of working from home and the provision of a third screen. He was also available to be spoken to about the work, outside of catch up meetings. The Respondent also did not go straight to a formal capability process, but instead undertook two informal meetings first. We accepted that the Respondent sought to find out how to make things easier for the Claimant. We did not accept that Mr Jones failed to offer any constructive support during her employment and this factual allegation was not established.

[175]In terms of the criticism it was important to remember that the words of the statute incorporate treatment of a particularly bad nature. We concluded that being given legitimate criticism about quality of work is not something which is of a particularly bad nature, in other words the criticism would need to be unwarranted.

[176]We did not accept that Mr Jones made comments or used language which was derogatory or demeaning about dyslexia. The feedback and comments made by Mr Jones were related to the quality of the work and were concerned with the public portrayal of the Respondent. We were not satisfied that the Claimant proved primary facts which demonstrated that the comments and criticism went over and above what would be reasonably expected in relation to work she was undertaking, in order to move it from what would normally be expected to that of a particularly bad nature.

[177]Further, although the Clamant was upset and stressed by the feedback and comments, she gave evidence that she found the atmosphere at work was hostile. That was not the same thing as the feedback creating a hostile environment for her. We concluded that what she said was hostile, was being put on the capability process. There was no evidence that the feedback was given in front of her colleagues. We were not satisfied that the feedback was given in an unkind, intimidating, hostile, degrading, humiliating or offensive way.

[178]In the circumstances we were not satisfied that it was reasonable for the feedback and comments to have caused the prohibited effect. The claim of harassment was dismissed.

[179]In relation to direct discrimination, the Claimant did not adduce primary facts that someone in the same role as her and whose work had been criticised by suppliers with a similar learning impairment, but who was not disabled, would have been treated differently. She referred to mistakes on the website which had been made by a director who had dyslexia, however those circumstances were very different. Concerns were not raised by suppliers and the website was a work in progress. We were not satisfied that the Claimant proved facts that an appropriate comparator would have been treated any differently and she failed to discharge the initial burden of proof. The direct discrimination claim was dismissed. Did Mr Jones and Mr Bush criticise the standard of the Claimant’s work and /or fail to offer any constructive support during the course of competency assessments on 15 June 2023, 20 July 2023, and 11 August 2023?

[180]The Claimant was provided with comments about the quality of her work at the meetings. On 15 June 2023, the Claimant’s workload was reduced. The Claimant sent Mr Jones information about the dyslexia after the meeting, which he considered and then made adjustments to way in which he provided information. On 20 July discussion took place about adjustments and adjustments were put in place for the Claimant. Similarly on 11 August 2023, the adjustments put in place for the Claimant were discussed. We did not accept the Respondent failed to provide any constructive support at the meetings. This part of the allegation was not proven.

[181]We repeated our reasoning and findings for the allegation of criticism against Mr Jones for the previous allegation. These matters significantly overlap. We were not satisfied that the Claimant adduced primary facts which tended to show that what occurred was beyond that which would normally be expected. We also repeated our findings that it was not reasonable for the meetings to have had the prohibited effect. We also repeated our findings that the Claimant failed to discharge the initial burden of proof in respect of direct discrimination.

[182]Accordingly, this allegation of harassment and direct discrimination was dismissed. Did the Respondent in May 2023 install cameras above the Claimant’s desk in order to monitor her?

[183]We repeat our findings in relation to the claim of discrimination arising from disability. There was no evidence before the Tribunal that tended to show that the Claimant was being monitored by the CCTV camera. The Claimant did not adduce primary facts which tended to suggest that the camera was installed for a reason because or related to her disability. In any event we were satisfied that the Respondent proved that the reason the camera was installed was that cameras were being installed in all offices and the CCTV company decided where the camera should be installed and there was no monitoring of the office during work hours.

[184]The factual allegation was not proven and in any event we were satisfied that the reason why it was installed was in no way whatsoever because of or related to the Claimant’s disability. These allegations were therefore dismissed. In June 2023 did Mr Jones state that “even a six-year-old could use an iPhone” due to the Claimant’s installation of a reader app?

[185]We accepted that Mr Jones did say words about a 6 year old being able to use an iPhone. We accepted that the Claimant found this offensive and given she was installing a reader app it was reasonable for her to find it offensive.

[186]However, we also needed to be satisfied that the comment was related to disability. The Claimant was installing the app and therefore there was just enough evidence adduced which could tend to show that the comment related to disability. However we were satisfied that Mr Jones did not know what the Claimant was installing. Further we were satisfied that he also had difficulty using iPhones and that he and the Claimant used android devices for their personal use. We were satisfied that he had not made any other derogatory remark about disability. There was nothing in what was said that referred to disability or dyslexia. We were satisfied that Mr Jones proved that his comment was wholly unrelated to disability. Accordingly the allegation of harassment was dismissed.

[187]In relation to direct discrimination, the Claimant did not adduce any evidence which would tend to show that an appropriate comparator would have been treated differently. Further, for the same reasons as for harassment, we were satisfied that the comment made by Mr Jones related to age and the difficulty with using an iPhone and he had proved it was in no way whatsoever motivated by her disability. The allegation of direct discrimination was dismissed. Discriminatory dismissal

[188]The Claimant’s pleaded case relied upon the allegations of discrimination and that Mr Bush complained about the amount of time it took working with the Claimant. We were not satisfied that Mr Bush said that the time he was spending with the Claimant was taking too long.

[189]The Claimant’s evidence was that she had every intention of returning to work for the Respondent after her sick leave and she was not ready to resign when she received the final warning. It was notable that in October 2023 she was told that the capability procedure would be delayed. The Claimant saw a better paid job advertised, which she applied for and was appointed. The Claimant decided to leave the Respondent when she was offered the new job.

[190]The Respondent submitted that the Claimant had affirmed any breach and relied upon the Claimant saying that she had no intention to resign. Further it was submitted there was a significant effluxion of time. Time of itself does not give rise to affirmation. However in the present case the Claimant continued to work for the Respondent and attended a further meeting with Mr Jones in October 2023 when he said the formal process would be delayed and looked to see what else could be done to help her. The Claimant then waited further, despite being on sick leave. The Claimant’s employment was not lengthy and her conduct gave the impression that she was accepting the breach and maintaining her contract. We concluded that she had affirmed the breach.

[191]In any event, we considered the reason for resignation. The Claimant submitted that the discrimination was an influence, however that was at odds with her evidence. The Claimant gave evidence that she loved her job and wanted to return. The Claimant had seen the opportunity to undertake a better paid job and she decided to pursue that opportunity. The reason why the Claimant decided to leave was that she was offered a better paid job. We did not accept that the Claimant proved that the proven discrimination was the cause or an effective cause of her resignation, the reason was that something better came along. The Claimant gave notice and immediately started in the new job on the expiry of her notice period. We concluded that if the Claimant had not applied for the new job that she would not have resigned. We were not satisfied that the Claimant proved that the proven discrimination was an effective cause of her resignation.

[192]The claim that there was a discriminatory dismissal was dismissed.

Remedy

[193]After the judgment on liability was given, the parties entered into discussions about remedy. The parties agreed as to the amount the Claimant should be awarded and a Judgment by Consent was entered in that respect.