J Gogawale v Elekta Ltd: 6008094/2024
JUDGMENT
[1]The Claimant’s claim of failure to make reasonable adjustments in relation to the meeting on 20 August 2024 is well founded.[2]The Claimant’s other claims of failure to make reasonable adjustments are not well founded and are dismissed.[3]The claimant is to file and serve a supplemental statement on remedy limited to the successful allegation by 9 January 2026.[4]The parties are to file dates to avoid within seven days of this order being sent out for a one day remedy hearing.REASONS
[5]This is a claim brought by the Claimant against her current employer. The Claimant appeared in person, and the Respondent was represented by Ms. Loraine of counsel. This is the unanimous decision of the panel.[6]We heard evidence from Claimant on her side. On the Respondent’s side we heard from 1) Tim Beevors – Head of Verification & Test Facilities Global Engineering who was the Claimant’s line manager, 2) Parimala Bangalore – Team Lead Systems Verification, the Claimant's former line manager, 3) Dave Remmer – Manufacturing Director who dealt with the Claimant’s grievance, and 4) Bryony Drew – Lead Local People Partner, who provides HR business support to the Respondent.[7]ACAS early conciliation began on 28 May 2024 and the certificate was issued on 9 July 2024. The ET1 was filed on 8 August 2024.Background
[8]The Claimant has worked for the Respondent R since August 2019 as an Engineer Systems Tester. In early May 2023 she was suspended for allegations of gross misconduct. Disciplinary proceedings then followed which resulted in her being given a final written warning. This was overturned on appeal, but the Claimant was then placed on a PIP in or around July 2023.[9]The Respondent decided that insufficient progress was made on this PIP and moved her to the second stage of performance improvement, with the PIP2 being created on 31 January 2024. It did not go into effect though because the C appealed the decision and then when this was rejected raised a grievance. She then went on long term sick leave and the grievance was not dealt with until 11 July 2024.[10]On her return to work in September 2024 (which postdates the claim) the PIP2 was further paused until her phased return was complete.[11]The claimant says that as a result of the disciplinary proceedings she became unwell from 2 May 2023 and that the workplace stress and anxiety was a disability. She claims that following this the R failed to make reasonable adjustments.[12]There are five PCPs, along with suggested reasonable adjustments in the list of issues following the case management hearing with Judge Siddall. Those are what this claim is about.[13]What this hearing is not about, is whether the Claimant should have been placed under investigation at all, nor is it about whether she should have been put on a PIP when others in her department were not. There is no direct or indirect discrimination claim before us. This is purely a failure to make reasonable adjustments claim.[14]The respondent does not accept that the Claimant was disabled, and in the event we find that she was, the Respondent says that they did not have knowledge of the disability. There is also a question of time limits and jurisdiction. Time limits - part one.[15]Whilst we propose to deal with the question of whether specific allegations were brought in time later, once we have resolved the factual background of the allegations, we do find that with one exception, any alleged failure to make reasonable adjustments which postdates the issue of the claim form is not within the scope of the claim. Ms. Loraine has set out the relevant caselaw on this point in her skeleton argument and we adopt that in full[16]The one exception to the above is the amendment which was granted at the PCMH. This was the allegation that the Claimant was not permitted to have an NHS Employment Specialist attend what the Claimant calls a return to work meeting on 20 August 2024. Disability[17]The Claimant provided a Disability Impact Statement which sets out a number of impacts of her mental ill health. These include:a. lost confidence in professional abilities,b. becoming overwhelmed by small tasks,c. spending excessive hours preparing unnecessarily for meetings,d. finding meal planning decisions draining,e. allowing chores to pile up,f. forgetting routine tasks,g. stopping driving after an accident on 16 August 2023 (she said that she would avoid unfamiliar or long routes and would rely heavily on her husband or public transport),h. declining invitations that involve travel,i. social isolation,j. lying awake at night both before and after meetings with manager,k. nightmares,l. headaches and tiredness,m. struggles with her appetite,n. becoming withdrawn from friends,o. shortening and cancelling family outings,p. no longer planning holidays or celebrations.[18]Unfortunately, the claimant does not provide dates as to when each of these impacts began.[19]She claims that she became stressed and anxious as a result of the disciplinary proceedings in May 2023. We find, and it is accepted by the Respondent, that such proceedings along with the subsequent PIP, would indeed be stressful.[20]However, being stressed is not automatically a disability. It is for the Claimant to prove that her mental ill health had a substantial adverse effect on her day to day activities.[21]The Claimant was ordered by EJ Siddall to provide the relevant parts of her GP records. She has not provided copies of her GP records but has provided some letters dated in 2024 from her GP and from NHS talking therapy. She told us that she did not know she could request her full GP records, but we do not accept that as credible considering the SAR that she has made to her employer and the fact she was told to get them at the PCMH.[22]What we do have are two letters from her GP with high-level comments. The first letter is dated 19 August 2024 and sets out the dates the C was signed off work (13/3/24 to 1/8/24). It attributes the absence to “stress at work which was a result of not recognizing her grievance at work. She was suffering from anxiety and poor and interrupted sleep.” The letter states that the stress began in June 2023 (which does not tie in with the C’s evidence to us and Occupational Health that she saw her GP for stress in May 2023). The letter does not say whether the start date was based on the Claimant’s own account or a review of the records.[23]There is then a second letter from the same GP dated 11 September 2024 (less than a month later) which gives more information. This sets out that the Claimant had been under the GP’s care for ongoing health concerns related to work-related stress. It says that “over the past year, she has experienced significant stress and anxiety due to her work environment”. This would put the commencement of problems around September 2023 which is slightly later than the previous letter says, although we do not hold the GP to giving exact timeframes in their letters.[24]This second letter also sets out that the prolonged stress has resulted in a disability that continues to affect her ability to fully perform her work duties. It says that she had experienced difficulty sleeping, an inability to make quick decisions and feelings of irritability and isolation from friends and family. These symptoms are slightly different to those in the previous letter, but we do note the extreme brevity of the first GP letter and do not find that there is any compelling inconsistency therein.[25]In addition, the Claimant has provided evidence from IAPT/NHS Talking Therapies which says that from 12 February 2024 to 28 August 2024 she was receiving support from Ms. Shiela Heard, an Employment Specialist. It is common ground that Ms. Heard is not a clinician and has no medical qualifications. Her role is to assist people who are already being treated by the talking therapies team to, inter alia, find work, remain in work, and resolve work place issues, particularly where they are affected by disability.[26]The Claimant has provided a number of fit notes for her absence which all relate to work related stress but provide no real guidance on whether there was a substantial impact on her day to day activities.[27]The Claimant was seen by Occupational Health twice in March 2024. Following the consultation on 6 June 2024 she reported experiencing anxiety and low mood triggered by perceived workplace stress. The report states “Mrs Gogawale informed that she is experiencing ringing in one of her ears, shortness of breath on exertion, interrupted sleep, muscular aches and tiredness. Furthermore, she reported that she doesn't feel that she has any energy to do anything after work. She informed that she has stopped exercising and socialising with her friends”.[28]In the report it was noted that she scored moderate for depression and moderately severe for anxiety. The report said “Mrs Gogawale has formed negative perception regarding some workplace issues/employee relation issues. Clinical evidence suggests that until this perception has been resolved, one way or another, symptoms are likely to continue”. Although, we do note that the report also said the issues were not principally medical, rather linking them to perceived unfair treatment at work.[29]The second report in March said “Mrs Gogawale informed that she still finds it hard to concentrate and that she has issues with sleep. Furthermore, she is still experiencing ringing in one of her ears, shortness of breath on exertion, tiredness, muscular aches and tiredness. It is my opinion that these symptoms are most likely due to stress”. The scores for depression and anxiety had both increased from the previous week.[30]There was another Occupational Health assessment on 7 August 2024, which was sent to the respondent on 11 August 2024 (after the claim form). In that it was reported that the Claimant “said she has also engaged in online therapy via the NHS, a stress management course, which she found beneficial. Mrs Gogawale said she is in regular contact with a mental health nurse via her GP. However, she stated that she still has trouble sleeping (interrupted sleep), feels lethargic most days and that she has difficulty focusing, for example when she tries to meditate”.[31]The scores for depression and anxiety had slightly improved by this point.[32]On this occasion the Occupational Health report acknowledges that the medical condition may be covered under the Equality Act, but rightly defers to this being a legal test.[33]The Claimant claims that her driving was affected to such an extent that she ended up having an accident on the way home from work in August 2023. She says that following this, she stopped driving due to her anxiety. She told us that this continues to date. There are a number of internal inconsistencies here. At the time, the Claimant was telling the Respondent that she was unable to drive into the office until she bought a replacement car. At no point has she told the Respondent that she could not and was not driving. In her Wellness Action Plan (WAP) in September 2024 she said “Driving to the office adds an additional layer of stress, particularly during peak traffic hours. The time spent in traffic can increase anxiety and mental fatigue before the workday even begins, which can impact my mood and productivity throughout the day” which suggests that she may have been driving at this point.[34]The lack of GP records does not assist the Claimant in proving disability, but it is not fatal. We have heard from the Claimant about the impact on her, and we find her to be generally a credible witness, although the issues over the car do cause us a small degree of concern which we weighed in the balance.[35]Overall, we are satisfied that the stress and anxiety caused by the disciplinary process did build up over time to impact substantially on her day to day activities of meal planning, socialising, completing work in a reasonable timeframe, and sleeping etc.[36]We then needed to determine at what point it reached this level. We gave serious consideration to the accident date in August 2023, but the evidence was too inconsistent for us to agree that this would be the start for any disability. However, we were satisfied that by 12 February 2024, when she was under the care of Talking Therapy, her condition had reached the severity of a disability. This ties in with the Occupational Health reports shortly thereafter which note a number of impacts, and also ties in to her going off on sick leave in early March 2024.[37]Therefore, we find that the claimant was disabled as of 12 February 2024. There is insufficient evidence for us to push that date back further. Knowledge[38]Although the Claimant had been informing the Respondent of stress and anxiety going back to May 2023, we have found that this was not yet at the threshold for a disability. Furthermore, her emails were high level in content and would have been insufficient to put the Respondent on notice. Indeed, at one point in early 2023 the Claimant was offered an Occupational Health referral which she did not take up. This would have suggested to the Respondent that the ill health was not as severe as the Claimant now claims.[39]We note that the Occupational Health report dated 11 March 2024 (following the consultation on 6 March 2024) does say that the Claimant had mental health conditions and it further goes on to say that clinical evidence suggests that they would not improve until the underlying lack of trust was resolved.[40]We find that as of this date (11/3/24) the Respondent was on notice of the disability and knew, or ought reasonably to have known of the disability. This also ties in with the Claimant going on sick leave a couple of days later which quickly became long term. PCP 1[41]The first PCP that the C complains of is “the application of a Performance Improvement Plan to address poor performance”. The reasonable adjustment suggested was “offering more support during the PIP process”. This suggestion is rather nebulous, but in her evidence, submissions and contemporaneous correspondence it is clear that she was wanting the objectives to be rewritten in a more SMART format and that she wanted a mentor.[42]The respondent accepts that the imposition of a PIP was a PCP. We find that an employee, such as the Claimant, with work related stress could be disadvantaged more than a non-disabled employee by the format of a PIP.[43]We remind ourselves that PIP 1 and the decision to move to PIP2 all took place before the date that we found the claimant to be disabled. Therefore, there would be no need to make any adjustments to PIP1.[44]PIP 2 was drafted on 1 February 2024, which is before the relevant date, but no substantial adjustments were made thereafter, although the PIP was not brought into effect until after the Claimant completed her phased return in September 2024.[45]We have reviewed the PIP2 and we note that some of the objectives are more SMART than others (e.g. Domain and Product Knowledge (page 191)). The R argues that they are as SMART as they can be considering the nature of the claimant’s role.[46]Where there is a degree of subjectivity in a PIP, we find that there is likely to be a disadvantage to a person with a disability caused by work related stress.[47]The Claimant said that she wanted “objectives to include success criteria and percentage with weightage for each objective, similar to the yearly performance review. The Respondent explained [to her] that those could be aligned with the project deadlines and expectations which are planned during PI planning. [The Claimant] also asked for quantifiable objectives.”[48]The Claimant went on to say that “Tim suggested that I provide details of the other tasks I have worked on, should there not be enough test cases , sprint by sprint, during catch-ups so that those other activities can be taken into consideration could be added to the PIP form in line with alongside the objectives.” We that that this evidenced flexibility in the process, whereby alternative work could be taken into account if the Claimant was not given sufficient work of the type mentioned in the PIP.[49]We find that the changes that claimant was seeking were not reasonable as for instance, when it comes to interpersonal skills, these are not possible to measure on a percentage basis and the subjective elements have been set out as clearly as possible, taking into account the weekly meetings where she could ask questions and seek clarity from Mr. Beevors.[50]We find that Mr. Beevor’s offer to discuss the objectives in the weekly meetings was a reasonable offer to assist the Claimant to understand the objectives in the PIP.[51]In relation to the mentor, this was requested on 6 February 2024 and on other occasions thereafter. The Claimant said she wanted a “mentor who can work closely with me throughout this process”. Mr Beevors responded asking for clarity on the need for a mentor as he felt that he could provide the support needed in the weekly meetings where he would “work through these objectives and offer support”. The Claimant did not reply to this email.[52]Mr. Beevors told us that he held the view that the Claimant was wanting a mentor to do the work for her, which would defeat the point of a PIP. We find that this was not the Claimant’s intention.[53]In evidence, the Claimant said she wanted someone outside of line management to assist her because of a lack of trust in the current management, but we find that this was never explained to Mr. Beevors.[54]In the grievance meeting notes (398) she says “how can an evaluator be a mentor?” but this was not expanded on and is not really sufficient to put the Respondent on notice as to why the mentor is needed. Nor does it explain why the Claimant needed this because of her disability.[55]In the grievance appeal meeting on 9 August 2024 (which post-dates the claim form) there was discussion of the mentor, but the Claimant did not, according to the notes, explain why she wanted a non-manager in the manner she explained it to us.[56]There was nothing in the medical evidence or Occupational Health report to say that a mentor outside of the line management would be required.[57]With hindsight, and the information provided during the hearing, the request for a mentor may have been a reasonable adjustment. However, we have to base our decision on the basis of the information available to the Respondent at the time. Whilst she had asked for a mentor, she did not follow up Mr. Beevor’s request for clarity and therefore, on the information available at the time we find that there was no failure to make reasonable adjustments. PCP 2[58]This PCP relates to the Respondent taking around four months to deal with the Claimant’s grievance.[59]The grievance was lodged on 12 February 2024 and the informal meeting took place on 20 February 2024. This recommended mediation, although the Claimant subsequently rejected this idea and instead asked to go to the formal stage. A meeting was arranged but this was cancelled at the Claimant’s request as it fell during her sickness absence. It appears that the Respondent interpreted this as a general request to pause matters whilst she was off sick.[60]By April 2024 the Claimant’s union representative requested an update, and in May 2024 the Claimant was chasing an update on the grievance. These messages were not replied to. No movement happened on the grievance until early July 2024 when a meeting was arranged with Mr., Remmer. He dismissed the grievance on 11 July 2024.[61]We find that the initial delay was because the Claimant asked the Respondent to reschedule the meeting until April when she would be back in the office from her sick leave. However, her sick leave was then extended and the Respondent made a decision to keep it on pause during this time.[62]The Respondent says that they made an adjustment to the timescales in the policy so as to not force her to take part in work related activities when off sick. They tried to explain the delay following the Claimant’s chasers by explaining that they needed to find someone to chair the hearing, but they did not keep the claimant updated, which is not really satisfactory when someone has work related stress which could be exacerbated.[63]Whilst we find that the delay between April/May 2024 and July 2024 was not ideal, we do not find that there is a PCP to delay the hearing of a grievance when someone is sick. We accept the Respondent’s evidence that this was a decision made purely on the specific facts of the Claimant’s case rather than there being a PCP which applies to all employees whereby the grievance process will be paused when someone is off sick. PCP 3[64]This relates to a requirement for the Claimant to work in the office four days a week. The Claimant argued that more flexibility should have been offered.[65]Whilst the PIP1 required the claimant to be in the office four days a week she was given flexibility at the start of this for childcare and after her accident due to transport issues. Neither of these requests mentioned her mental health or disability as being a problem coming into the office. In any event, we find that PIP1 predates the date of disability and knowledge and had come to an end in December 2023.[66]PIP 2 does not explicitly require 4 days a week, it includes “Make efforts to integrate with the team more through co-located working, actively contributing to team discussions - try to avoid isolating yourself” and therefore at the relevant time there was no firm requirement for four days a week, albeit was being encouraged.[67]At a review the Claimant said that coming in that often was helpful, although in evidence before us she said she had no choice but to agree to that and did not actually mean it.[68]Her evidence was she did not object to the four days a week requirement in principle, but wanted more flexibility to reduce the stress of having to make sure she was in four days a week. The change in wording from PIP1 to PIP2 suggests that this flexibility was put into place.[69]In any event, the Claimant did not raise in her Occupational Health meetings, medical records, or discussions with the Respondent which were in evidence before us, that the objection to 4 day working was due to the impact on her disability. She referenced childcare and lack of transport, and the unfairness of other staff being allowed to work from home more often.[70]Therefore, if we are wrong that the requirement was no longer in place, the Respondent was not on notice that any adjustment was required because of the disability.[71]We also note that post-disability up to the date of the claim being issued the PIP2 was paused in any event and therefore any requirement to attend 4 days a week was also paused. PCP 4[72]This is a complaint that the Respondent had a PCP of providing staff with small screens for work use.[73]We find, from the Respondent’s evidence, that they had a PCP for laptops to have certain specifications and this meant that only smaller screen laptops were available at that time. The screen size was not part of the specification, but was a side effect of the same.[74]The Respondent’s case is that when the Claimant asked for a new laptop, there were no laptops of that larger size available with the correct specification. They did offer to place screens on desks that she could dock into. They also offered to put one in the lab and provide one at her home.[75]There also remains a question about whether the claimant communicated that the need was due to her disability. She referenced efficiency and eye strain. We find that this was not communicating a need to adjust the screen size because of her disability.[76]But in any event the respondent did what was reasonable by offering the larger screens which she could dock into. PCP 5[77]This relates to a refusal to allow external persons to attend the grievance meeting on 4 July 2024 and a return to work meeting on 20 August 2024.[78]By this, the Claimant means that she was not allowed to have Ms. Heard, from the NHS team, accompany her to the meetings.[79]In the 4 July 2024 meeting the Claimant was not allowed to be accompanied by Ms. Heard but she was allowed to be accompanied by her union representative. From the information we were given as to Ms. Heard’s role, we find that there is little difference between what she would have done and what the union representative would have done to support the Claimant.[80]We find that this did not amount to a failure to make a reasonable adjustment. The Respondent allowed someone to support the Claimant. Allowing a union representative to attend rather than a member of the Claimant’s medical support team was reasonable.[81]On 20 August 2024 there was another meeting. We find that this was not a formal return to work meeting, which had taken place a few days prior. This was another meeting which the Claimant requested to discuss her return further. This was seen by the Respondent as an informal meeting rather than a formal one.[82]From the Respondent’s evidence, we find that there was a PCP of not allowing people to be accompanied to informal meetings.[83]We find that this was a meeting that the Claimant requested to discuss her return. It was not part of a disciplinary, capability or performance management process. The Claimant wanted her employment specialist to be there as well. We note that Ms. Heard was not a medical professional but the Claimant wanted moral support in the meeting.[84]The Respondent said that they did not want Ms. Heard there so as to keep things informal and they also raised concerns that Ms. Heard was helping the Claimant with the Employment Tribunal claim, and at this point proceedings had been issued. As such they felt it was not appropriate for her to be there.[85]They did, however, allow the Claimant to meet with Ms. Heard before and after the meeting to get support.[86]We note that the Occupational Health report following the consultation on 6 March says: “I would suggest a meeting between HR, line manager and Mrs Gogawale where the various issues at work can be addressed. However, it is generally accepted that such meetings can be distressing so you may wish to consider measures to help alleviate distress and promote perceived “fitness” to attend such as […] Allowing the person to be accompanied by a suitable person.”[87]Although this was not directly referencing the meeting of 20 August 2025, it was referring to a similar type of meeting. We find that the Respondent should have allowed the Claimant to be accompanied at this meeting, as it was a meeting requested by the Claimant to help her with her return to work, and where she would likely need some moral support.[88]We find that this does amount to a failure make reasonable adjustment on a single occasion. Recording[89]The Claimant, in the hearing, also raised the point that she had not been permitted to record meetings. This allegation has not been raised at any point in the proceedings and is not therefore before the Tribunal. As such we make no findings on that allegation. Time limits[90]The only successful allegation relates to 20 August 2024. This postdates the claim form and early conciliation, being added by way of amendment. The amendment was allowed at the PCMH on 30 July 2025 and that is, strictly speaking, the date to consider for time limits. Time limits were not expressly dealt with in that application and therefore we find that it falls to us to consider them here.[91]Whilst 30 July 2025 is technically out of time, being over 11 months post act, the amendment was allowed. We find that this was the first time that the amendment application could have been dealt with. The Respondent has had plenty of time to consider it and has produced evidence on the allegation. We find that it would be just and equitable in all the circumstances to extend the time limit.