Dr C Sandford v Met Office for and on behalf of the Secretary of State for Science, Innovation and Technology of the UK of Great Britain and Northern Ireland: 6018733/2024 Dr C Sandford v Met Office for and on behalf of the Secretary of State for Science, Innovation and Technology of the UK of Great Britain and Northern Ireland: 6018733/2024

EMPLOYMENT TRIBUNALS

Case No 6018733/2024

Between

Dr C SandfordClaimant

Met Office for and on behalf of the Secretary of State for Science, Innovation and Technology of the UK of Great Britain and Northern IrelandRespondent

Before

Employment Judge Volkmer

Mr Jarvis (instructed by counsel) for claimant

Ms Palmer (instructed by counsel) for respondent

Date 10 October 2025

JUDGMENT

[1]The complaints of harassment related to disability are well-founded and are upheld.

[2]The complaints of discrimination arising from disability at paragraphs 3.1.2 and 3.1.3 of the List of Issues (see below) are well-founded and are upheld.

[3]The remaining allegations are dismissed by agreement on the basis that they duplicate the acts which have been upheld as discriminatory acts as set out above.

[4]Remedy will be determined at a separate hearing.

REASONS

[1]The Claimant brings complaints of disability discrimination arising from disability, harassment related to disability and victimisation.

[2]The Tribunal heard witness evidence from the following witnesses: 2.1. for the Claimant: 2.1.1. the Claimant; 2.1.2. Sara James; 2.1.3. Debbie O'Sullivan; 2.1.4. Helen Johnson; and 2.1.5. Nick Rayner. 2.2. for the Respondent: 2.2.1. Penny Endersby; 2.2.2. Tammy Lillie; 2.2.3. Mark Bevan; and 2.2.4. Emma Connett.

[3]I also considered the Hearing Bundle of 797 pages. References to page numbers in this judgment refer to the Hearing Bundle. The Respondent provided a helpful chronology, and both parties made written submissions.

The Issues

[4]The following List of Issues was set out in the Case Management Order of Employment Judge Livesey which was sent to the parties on 28 April 2025, as amended by the parties (page 58).

The Issues

[1]Time limits 1.1. The claim form was presented on 15 November 2024. The Claimant commenced the Early Conciliation process with ACAS on 16 September 2022 (Day A) and the Early Conciliation Certificate was issued on 28 October 2024 (Day B). Accordingly, any act or omission which took place before 17 June 2024 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint. 1.2. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide the following. 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.2.5. Why were the complaints not made to the Tribunal in time? 1.2.6. In any event, is it just and equitable in all the circumstances to extend time?

[2]Disability 2.1. It is not in dispute that the Claimant is a disabled person as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of Autism.

[3]Discrimination arising from disability (Equality Act 2010 section 15) 3.1. Did the Respondent treat the Claimant unfavourably by: 3.1.1. Penny Endersby’s post on Viva Engage on 14 March 2024; 3.1.2. Tammy Lillie’s email to the Claimant and Sara James on 19 June 2024, which notified the Claimant of potential disciplinary action; 3.1.3. The decision to no longer support the Claimant as Co-Lead of the Autism Network; 3.1.4. Penny Endersby’s comments relating to her “personal style” during 3.2. Did the following arise in consequence of the Claimant’s disability? 3.2.1. Her position and actions as Co-Lead of the Autism Network. 3.2.2. How she communicates and is perceived to communicate. The Respondent accepts that the way in which the Claimant communicates is something that arises as a consequence of the Claimant’s disability. 3.3. The Claimant’s case is that she was treated unfavourably because of her position as network lead of the Autism Network and/or because of how she communicates, which were things which arose in consequence of her disability. 3.4. Was the unfavourable treatment because of that thing? 3.5. Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were ensuring the well-being of other staff and ensuring that staff behaviour was acceptable and in accordance with its values. 3.6. The Tribunal will decide in particular:(1) was the treatment an appropriate and reasonably necessary way to achieve those aims;

(2) could something less discriminatory have been done instead; and

(3) how should the needs of the Claimant and the Respondents be balanced? 3.7. The Respondent does not allege that it did not know that the Claimant had the disability.

[4]Harassment related to disability (Equality Act 2010 s. 26) 4.1. Did the Respondent do the following things: 4.1.1. Penny Endersby’s comments in the 12 March 2024 briefing; 4.1.2. Penny Endersby’s post on Viva Engage on 14 March 2024; 4.1.3. Penny Endersby’s comments relating to her “personal style” during 4.2. If so, was that unwanted conduct? 4.3. Did it relate to the Claimant’s protected characteristic, namely disability? 4.4. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 4.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[5]Victimisation 5.1. Did the Claimant do a protected act as follows: 5.1.1. Her posts on Viva Engage in March 2024, including(a) her post on Ask the Exec on 12 March 2024

(b) her 13 March 2024 reply to Sara James’ post of 12 March 2024 and

(c) her post on Neuro divergent and Allies on 12 March 2024; 5.1.2. The discussion with Tammy Lillie on 18 June 2024, including that Diversity Council had been informed of the floorplate changes at 4pm on the Friday that were due to be imposed on the Tuesday, that she had worked to ensure her own adjustments in a very short time period and the attack they felt through Viva Engage as vulnerable people with protected characteristics; 5.1.3. The surrounding correspondence relating to the floorplate changes and how this had affected neurodiverse members of staff, namely the email to Simon Vosper and Keith Williams on 11 March 2024. 5.2. Did the Respondent do the following things: 5.2.1. Penny Endersby’s post on Viva Engage on 14 March 2024; 5.2.2. Tammy Lillie’s email to the Claimant and Sara James on 19 June 2024, which notified the Claimant of potential disciplinary action; 5.2.3. The decision to no longer support the Claimant as Co-Lead of the Autism Network; 5.2.4. Penny Endersby’s comments relating to her “personal style” during 5.3. By doing so, did the Respondent subject the Claimant to detriment? 5.4. If so, was it because the Claimant had done the protected acts?

[6]Remedy 6.1. Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend? 6.2. What financial losses has the discrimination caused the Claimant? 6.3. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 6.4. Should interest be awarded? How much? The Facts 5. The Respondent is the UK’s national meteorological service, providing weather and climate services. It is a Trading Fund of the Government Department for Science, Innovation and Technology operating on a commercial basis. Its head office is in Exeter. 6. The Claimant was (and continues to be) a scientist for the Respondent. She is autistic. She requested reasonable adjustments at work following her diagnosis. The Claimant had experienced difficulties during an office design conducted by the Respondent in 2016, during which the Respondent had not implemented the Claimant’s agreed adjustments. The Claimant was very distressed by the experience and received support from her GP and a specialist counsellor as well as taking medication for anxiety. As a result of failure to implement her agreed adjustments, the Claimant sat away from her team for a period from 2016 to 2020.

The Facts

[7]The Claimant founded the Autism Network in May 2019 and was the Co-Lead of the network at the time of the events which are the subject of this Claim. Sara James was the other Co-Lead of the network after volunteering because there were no volunteers to fully take over from the Claimant as Network Lead.

[8]On 8 November 2023 Simon Vosper, the Director of Science for the Respondent announced that the Respondent had decided to sub-let some of its office space to the Insolvency Service (page 148). This meant that the Respondent would have to clear the relevant areas “by Spring 2024”. The relevant area to be sublet was referred to internally as “A2” and was occupied by Science and Programmes staff. It was made clear that they would have to move, but it was not made clear in the email where they would move to.

[9]In their roles as Co-Leads of the Autism Network, the Claimant and Ms James raised concerns with the Diversity Council about the lack of detail and asking how reasonable adjustments would be handled as part of the move. They also raised this with Ms Tammy Lillie, who was (and continues to be) Chief People Officer for the Respondent. Her responsibilities included HR, internal and external communications. She was the executive sponsor of the Autism Network at the relevant time. This was raised with Ms Lillie in the monthly sponsor meeting in February 2024, with the Claimant and Ms James pointing out that the move was planned for March, but no details had been given, and that people would need time to organise any reasonable adjustments.

[10]In February 2024 the Claimant also raised this with her own line manager, Nick Rayner, Scientific Strategic Head for the Respondent. The Claimant was, particularly in light of her previous experience, anxious about the impact of the move on her own reasonable adjustments – requiring a fixed desk with barriers and protection from behind. Few desks could meet the Claimant’s needs. Ms Rayner emailed her on 14 February 2024 saying that there would be another announcement in a couple of weeks, with the move being completed in March 2024.

[11]On 26 February 2024 an email (page 177) was sent informing Science staff that they would be moving from A2 to E2, which had previously been a dedicated quiet zone for the whole office to use. It was stated that this would be completed by 31 March 2024. Those receiving the email were told that the information was confidential and could not be shared or posted on Viva Engage (the Respondent’s intranet) until a wider announcement on 12 March 2024.

[12]On Friday 8 March 2024 the Diversity Council was informed that the Science staff would be moved on 12 March 2024 (the following Tuesday). This information was expressed to be confidential. It was to be more widely announced on 12 March, the same day that the move would take place. The Claimant immediately raised a concern regarding adjustments saying “there’s also a concern around anyone who is using E2 as a quiet space on a regular basis, either informally or as a workplace adjustment, because the home floor plate is not suitable for them. I was aware of this as a theoretical concern but now have reason to believe there may be specific individuals affected. What should they do on 12th March when they are no longer “allowed” to access that space?” (page 180). Others also raised concerns regarding the plans.

[13]Following a discussion between the leads of the three neurodiversity networks, (Autism, ADHD and Dyslexia & Dyspraxia Networks) Laura Gilchrist (Network Lead of the ADHD Network) sent an email on 11 March 2024 to members of the senior leadership saying the following about the move. “Arising from the statement "E2- from 12 March this will become the new Science homezone and no longer a dedicated quiet space. The Library will be available for this", our immediate concerns are:• The lack of notice about the move to E2. This is especially problematic for those who have reasonable adjustments in place or require a quiet space to work effectively, and will need time to ensure their needs will be met after the change.

• The impact of the immediate disruption on individuals regularly working on E2 who are part of the communities we represent. Routine and stability can be particularly important to autistic and other neurodivergent individuals, so implementing the change with immediate effect could have a significant impact on their short-term wellbeing and productivity (e.g. meltdowns, mental health days, etc).

• The uncertainty around how the E2 space will be assigned and managed from 12th March. We are worried that an unmanaged move without an appropriate notice period for reasonable adjustments to be put in place means E2 space will become chaotic, which would be detrimental to colleagues who need a calm and controlled environment.

• Lack of serious consideration as to whether the Library is a suitable quiet space for DSE working. There are currently four DSE-equipped spaces in the library, which may not be sufficient to meet the need (at time of writing there are seven people working on E2). The rules such as "no food and drink in the library" may also make this space inaccessible for some individuals to work in. We are seeking reassurance from you that the floorplate moves will be done in a controlled manner and that the Science SLT will communicate clearly and timely how the E2 space will be allocated and governed, noting that the company-wide comms will suggest that the loss of E2 as a Quiet Space will occur with immediate effect. Due to our concern that such a sudden and unexpected move will cause disruption and distress to some of our members who have specific needs or preferences for their working environment, we urge you to please work with Property to consider postponing the start of the floorplate moves until next Monday 18th March at the earliest, so that time is taken to communicate clearly with our members and indeed all Science colleagues on how the E2 space will be allocated and managed.” (pages 183 and 184).

[14]The Respondent agreed to delay the floorplate move to 18 March 2024, as requested.

[15]On 12 March 2024, the Claimant was told by Ms Rayner that there were plans to remove some of the barriers on E2, which would mean none of the existing desks would meet her needs. Ms Rayner said she would look at the options, but the Claimant was distressed by this given her previous experience of an office move.

[16]In an “All Staff Briefing” later on 12 March 2024, Professor Penny Endersby, the CEO of the Respondent, said the following about the planned office move. “Moving on to what's going on at the moment, you'll see a story from Nick Jobling about the decision to sublet our floorplates A2 to D2, and new homezones for people who are affected. I just want to reinforce the need to continue to use our building effectively. And the fact that we are under pressure, to give up some control of the building, and we are very keen to demonstrate that we are using it the right way so that we don't lose that control and the freedom to use the building how we want and to make best use of our space for us. Just to just to say we remain very committed to providing the highest quality homezones as we can. So teams together, homezones tailored to what you tell us your team needs and continue to make the building a great place to come to work. And, appreciating this is a change. And there's lots of questions about practicalities and the timing, which is long for many people. We've got dedicated directorate leads at associate director level to help us support the implementation and work with teams. In terms of timeline, we will be changing A2 and E2 this month, F1 over this financial year and the rest of it is going to take several years because it's like a complex chain of house moves and we're refurbishing and raising the standards of the accommodation as we go, and we can't afford to do it all at once, even if we could magically move the people out and not need a place to put them while we did things. So we'll keep telling you as plans develop. I did want to say on this, it does seem to have provoked a particular lot of angst among people, and I do realise that for some groups with particular needs, the uncertainty can be challenging, and we'll definitely be continuing to work with the Diversity Council to see that those people have forewarning and can see they're going to a space and desks that meet their own needs. But for the rest of us, I do want to encourage a bit of a sense of proportion over this. It will affect everybody, including the Executive. But we're not being asked to move house or change jobs. Moving within the building should be a pretty minor disruption for most of us. And in any case, in any organisation of any size, it just is inevitable because teams grow and shrink and projects come and go and areas have to be refurbished, so everybody has to move desks from time to time. And there's no way to avoid it, even if we really wanted to.” (pages 191 and 192)

[17]The Claimant responded to the briefing by posting on the Respondent’s Viva Exchange saying the following. “I feel quite personally hurt and frankly targetted (sic) by statements in today's briefing about the reaction to floorplate moves. There's no question that the Met Office needs to sublet floorplates and has made reasonable choices about what to do there. But the way this is being implemented is without regard to those with disabilities or specific needs. Diversity Council has not been consulted on the immediate changes - we were informed at 4 pm on Friday of what was initially pegged to be implemented immediately on the day of the annoucement (sic). Disabled individuals have not been given information about the areas they are moving to that is adequate to ensure they can organise reasonable adjustments on the timescales available. THESE are the things that are causing concern - not the fact that the Met Office needs to change the way it is using our building. The comments in the briefing today are explicitly targetted (sic) at those who find "uncertainty" to be "challenging" - which directly trivialises the very real personal needs of people who are constantly excluded by this way of implementing change. It is extremely personally upsetting to have my own disability hung out to dry in this way. It feels a lot like autistic people in particular are being targetted (sic), because of how the networks are speaking up in an attempt to get our needs met. We are always willing to work constructively with projects on meeting our needs in the most straightforward way possible, as we have done on several past projects (eg E1 and E2), and we don't deserve to be treated in this way.” (page 195)

[18]Other employees made comments on Viva Engage similar to that made by the Claimant, including Sara James who posted that “I’m concerned about the “othering” of people with disabilities and the invalidation of concerns surrounding the relocation of working areas…. If we want to be inclusive we need to avoid phrases like “the rest of us” because the rest of us is all of us.” (page 194). Ms James also referred to a house move nearly causing her to have a nervous breakdown. She stated that there was not a clear divide between disabled people needing reasonable adjustments and others, pointing out that not everyone disclosed, or was aware of, having a disability.

[19]The Claimant made a further comment the following day, on 13 March 2024, on a post which Ms James had made saying the following. “Also on the subject of “it isn’t changing jobs”. It seems not to be realised that actually, losing one’s job is EXACTLY the consequence that those of us whose needs are routinely not met are potentially facing here. And in the meantime, the stress of that can be significant. I’ve been through a Met Office managed floorplate redesign before, with similar flags to this one. Some of the side-effects in my area were: - At least 2 people off on long-term stress-related sick leave. (I think there were actually 3, but I can’t bring the third name to mind.) They weren’t the people you would have immediately expected, and at least one of the absences was on the order of six months, not counting phased return. - Excessive presenteeism. My GP offered to sign me off with anxiety. For various reasons I didn’t take her up on that. So instead, I ran the gamut of anti-anxiety meds, horrendous life-disrupting side effects and crippling fear of going into work every day while my disability-related needs were deprioritised for months on end. I was one of the worst “presentees” affected, but I’m aware of at least one other person who went through similar. And that is just the ones I know about, in my immediate strategic area of 30- odd people. That’s at least 4 people pretty much crippled in terms of well-being and productivity, for months, due to the handling of the change. The impacts across the whole department (100-odd) were likely much wider. These are not trivial impacts.” (page 224)

[20]There were also several positive comments posted on Viva Engage and sent by email.

[21]Professor Endersby posted on Viva Engage on 14 March 2024 saying the following. “You will have seen many comments on here, some constructive and useful, but also a number which are frankly unacceptable in the unkindness of their tone and in their lack of consideration for the impact on colleagues. There seem to be a number of issues which we need to pick up as an executive: about how information around intended changes to homezones are communicated, about provision of a quiet space, and about how we acknowledge the needs of a diverse staff without making people feel singled out. We will take those offline. However, no matter how we try to stress the need to consider the impact of your posts on others, we do not seem to be able to land this message. I am not talking about the executive, although we can also be personally hurt by the nature of some of the comments, but about colleagues across the organisation who have worked very hard to deliver these changes in a collaborative and expert way, and who experience the hostility as very distressing. We have had people off sick and in tears, and also a number of staff write to the Ask the Exec mail address to say that they completely disagree with the comments on here, but are too intimidated by the negativity to say so in public. With this in mind we have seriously considered suspending the Ask the Exec group as a vehicle for engaging with staff. All the Executive really value open and transparent communication with every member of staff and your feedback, including challenges, however this cannot be at the expense of the well-being of other colleagues, and a space where all employees feel able to contribute. There seems to be something about social media exchanges which can cause people to put their comments as though to a faceless entity, although they are still received by feeling human beings. We don’t experience these behaviours with in-person and emailed feedback. We have decided to maintain the channel for now, while we consider what alternatives there are to remain open and approachable to all. I hope that the next hybrid ask the exec may prove to be one option but we are always looking for the best routes we can find to continue to engage with all of you. Meanwhile, can I stress again the need to consider the people on the receiving end, and couch your words as if you were speaking to them in person.” (page 227).

[22]The Claimant was off sick on 14 and 15 March 2024 with stress and was then signed off with viral fatigue, returning to work on 8 April 2024 on a phased return. She returned to full hours on 27 May 2024.

[23]Ms Tammy Lillie was the executive sponsor of the Autism Network. There were monthly meetings between Ms Lillie, the Claimant and Ms James. One of these meetings took place on 18 June 2024.

[24]Prior to the meeting, the Claimant had indicated that she and Ms James wished to “discuss the relationship between members of the Exec / ELT and Diversity Council, how the network sponsor fits into that and how that works in terms of all our goals around inclusivity overall” (page 290). The meeting took place via MS Teams, with the Claimant and Ms James sitting in a room together and Ms Lillie dialling in remotely. There were some problems with the meeting room equipment, so they had connected using both the meeting room equipment and the Claimant’s laptop.

[25]The meeting opened with some questions about the executive, diversity council and network leads. In response Ms Lillie quoted from the terms of reference. Whilst the parties consider that there is disagreement about the exact discussions which then took place, it appears to me that the facts put forward by each side are relatively similar in terms of the core facts.

[26]The conversation then moved on to a discussion about the floorplate move. Initially the Claimant raised that they had felt uneasy about whether they were being understood in their sponsor meeting in February, because Ms Lillie had expressed surprise that the Claimant had said a few weeks’ notice of the floorplate move was needed. Ms Lille responded saying she should feel safe to say that she was surprised by things. This part is not recorded in Ms Lillie’s note but is set out in the Claimant’s note of the meeting.

[27]Following this, the Claimant and Ms James described network leads and members feeling mocked and trivialised by the Exec briefing and subsequent dialogue about their concerns. I find based on both Ms Lille’s and the Claimant’s notes, that Ms Lillie’s response was that she did not know the details but that she had been informed that staff networks, diversity council and individual employees had been given plenty of notice. I find based on Ms James and Ms Lillie’s notes that Ms Lillie also made a comment about the executive having a duty of care to all employees.

[28]The Claimant also explained what had happened to her and how the floorplate move had affected her personally, including having to ensure her own adjustments could be accommodated in the new area in a very short period of time, discussing with network leads, sending out communications to others affected and dealing with the dialogue on Viva Exchange. She explained that this was an extremely stressful period, and she had been off sick for some time afterwards. This finding is based on the notes of both Ms Lillie and the Claimant.

[29]Ms James and the Claimant explained that the Diversity Council had been informed of the changes at 4pm on Friday that were due to be imposed on the Tuesday and that this was not enough notice. Ms Lillie’s response was that she would have to check this with Property Maintenance. Again, this is recorded in both sets of notes. The Claimant and Ms James interpreted this exchange as implying that their account was untruthful and repeated their assertion as to the timing.

[30]Ms Lillie interpreted this exchange as the Claimant and Ms James not being happy that she did not have the details to hand, whereas in fact, they wanted Ms Lillie to listen to their experience and believe their account of how it had happened.

[31]Ms Lillie stated that she would make sure that Professor Endersby had all the facts for the meeting scheduled between her and the Claimant to take place on 3 July 2024. The Claimant felt that this was a further accusation of lying.

[32]During the meeting, Ms Lillie raised that the staff network review was being postponed. The Claimant asked that the network leads be allowed to input into their sponsor as it helped if there was rapport. The Claimant and Ms James explained that there had been no applications in a previous exercise to recruit a new network lead. Although there is not a significant difference in accounts, I have preferred the Claimant’s and Ms James’ evidence on this point, as I considered it was credible and consistent.

[33]It is clear that throughout the meeting, Ms Lillie felt attacked in the exchange and the Claimant felt that they were being accused of not being truthful and were not being listened to. Before the meeting had come to a close, the Claimant became very upset and stopped speaking. Ms Lillie was aware that the Claimant had become upset (page 501).

[34]The meeting came to close, and Ms James thought the video was no longer running. At this point she made a gesture to the screen with her hands which is generally used to indicate “fuck off”. In fact, the video was still running, and Ms Lillie saw this gesture.

[35]Following the meeting, Ms James and the Claimant went to see their Prospect trade union representative, Dr O’Sullivan. They were very upset and crying (page 320). Ms Lille was also upset about the meeting and phoned Professor Endersby, she also cried during the call.

[36]The following day on 19 June 2024, Ms Lillie wrote Ms James and the Claimant an email, copied to their line managers, attaching notes of the meeting and a document saying the following. “Dear Caroline and Sara Please find attached some notes I have written up from our meeting today. I have taken some time to write up some notes on this occasion as I am deeply upset with how you think it is appropriate to treat me as your executive sponsor. I feel like you think it is acceptable to treat me as a human punch ball with any element you don't like or think isn't working for neurodiverse people and in particular with the floorplate changes. I willingly offered myself to be your sponsor and spend time and effort understanding your concerns and make myself available and at no time have you ever taken a moment to recognise this fact. However, it is not acceptable wherever you sit in the organisation to be treated without respect and to feel intimidated and bullied -which is how I felt when I left the meeting with you both. It is also absolutely not acceptable, Sara to give me the repeated finger which you did as I was leaving the meeting and I will be taking action on this point. I have also discussed with Penny what action is necessary with you both as this is not acceptable behaviour from our network leads. You may have been upset with the floorplate changes but your behaviour is not acceptable. Please can you acknowledge this letter and offer an apology. Regards Tammy” (page 311).

[37]The Claimant was very distressed by this email, which she interpreted as threatening disciplinary action. She also felt that the meeting notes contained significant inaccuracies. The Claimant’s line manager, Ms Rayner, asked the Claimant for her response to the allegations made by Ms Lillie and they discussed it on 20 June 2024.

[38]Despite feeling she had done nothing wrong, the Claimant was scared and so complied with Ms Lillie’s instruction to apologise, which she sent to Ms Lillie on 20 June 2024 with her own notes of the meeting attached (pages 310, 295).

[39]On 24 June 2024, Dr O’Sullivan wrote to Professor Endersby, in her capacity as a trade union representative, saying the following. “The primary reason for my email to you today is concerning the autism network, and tensions that have flared up between the network leads and yourself Tammy. It is important to bear in mind here, that those individuals are neurodiverse and they communicate in a very direct and open way. They do not react well when their integrity is questioned, and they felt incredibly threatened and attacked by the responses they received from Tammy in the network sponsor meeting on Tuesday morning last week. I became aware of some of this, because they were so upset following the meeting that they felt the need to come into the TU office, where I was working, to cry and let of steam. I understand it was a tense and very difficult meeting, and that both parties felt affronted. I am however concerned that someone so senior to these staff should feel the need to get defensive in reaction to network leads simply trying to get their concerns heard to the best of their ability. … I appreciate that you may hold the view that the autism network leads are not behaving in line with this guidance or the civil service code. However, it should be borne in mind that as an impartial observer looking in, the same can be said about the approach Tammy took, and the things Tammy has said to them. Given the imbalance of power, and how distressed and upset those individuals were, I would be concerned if there were to be sanctions or actions taken as a result of that meeting. I also wonder if it would be better all round if a different network sponsor could be found for the autism network? A lack of willingness of those currently involved to continue constructive conversations is understandable and a fresh start with new individuals would be beneficial for everyone.” (pages 326 and 327).

[40]On 25 June 2024, Professor Endersby responded to Dr O’Sullivan, saying that it was distressing for all concerned as Ms Lillie had also been upset. She went on to say the following, in relation her planned meeting with the Claimant on 3 July. “I will be bringing up the unproductive nature of her comments on Viva, and making it clear that reasonable adjustments have to stop short of having a green light to make your colleagues ill by your behaviour. This goes far beyond last week's meeting, with team members in HR, Communications and Property all suffering from the impact of Caroline's public on line criticisms in particular. With regard to the network sponsor, I was intending to say in any case that I am unable to provide a sponsor to the autism network unless there is a change of leadership. Tammy is not willing to continue, and I am not prepared to expose another member of the executive to the relentless hostility and negativity which goes back far beyond this meeting. I also think that the network is not serving autistic members of staff well; indeed a few wrote to me in the aftermath of the Viva comments around the floor plate moves to inform me that the network represented neither their views nor their needs, but they found it too intimidating to say this on Viva. We were planning to offer Tammy's sponsorship to the Early Career Autism network as well as the ADHD one which she already sponsors, however I would be happy to consider the alternative of a new sponsor for the autism network under different leadership, though all network sponsorship is subject to the government EDI review and our staff network review.” (pages 324 and 325).

[41]Having considered the allegations and considering that there had been misunderstandings on both sides, Ms Rayner decided on 2 July 2024 to draw a line under the allegations without taking any disciplinary action. She communicated this to the Claimant on 3 July 2024.

[42]The Claimant and Professor Endersby met on 3 July 2024. Having discussed the floorplate move, they went on to discuss how the networks were viewed. During this part of the discussion Professor Endersby stated that there was a problem with how the Autism Network was viewed due to the Claimant’s “personal style” and that many areas of the organisation found it hostile to deal with. No direct examples were given by Professor Endersby in relation to this comment, which the Claimant immediately stated that she felt was not fair feedback.

[43]There was a further meeting between the Claimant, Ms James and Professor Endersby on 18 July 2024 to discuss the situation with Ms Lillie. During the meeting Ms James explained that was not about personalities but about autistic communication in general. She explained that she and the Claimant could struggle to communicate if individuals had different communication styles. Ms James gave the example of her experience with different line managers and stated that she found it particularly upsetting when people misunderstood her intent as a result of the break down in communications. This sometimes resulted in people assigning an intent to her that was incorrect. The Claimant stated that this could happen with anyone, not just a line managers and that a power imbalance could exacerbate this (page 341).

[44]Professor Endersby stated that she felt the status quo was untenable and not an option. She said that she was reluctant to substitute another executive as network sponsor saying, “it’s not fair to the exec”, and that the “broken relationship” with the network went beyond the executive. Professor Endersby later said that she would consider a different sponsor but, in that case, would require a change to the network lead to have a fresh start (page 343). The Claimant said later in the meeting that she found this extremely personally hurtful.

[45]The Claimant raised a grievance on 24 July 2024. The grievance process does not form part of this Claim, so I do not deal with it in my findings of fact. The Law Discrimination arising from Disability

The Law

[46]The provision relating to discrimination arising from disability is set out at section 15 of the Equality Act 2010 (“EqA”): “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 64. Pursuant to Trustees of Swansea University Pension and Assurance Scheme and anor v Williams

[2018] UKSC 65

, there is a relatively low threshold required to establish unfavourable treatment and engage section 15 EqA. It is an analogous to concepts of disadvantage and detriment. 65. Mr Justice Langstaff explained the approach Tribunals should take to establishing causation in Basildon and Thurrock NHS Foundation Trust v Weerasinghe

2016 ICR 305

, EAT, as follows. “26. The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” — and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the Tribunal to conclude that it is A's treatment of B that is because of something arising, and that it is unfavourable to B. I shall return to that part of the test for completeness, though it does not directly arise before me. 27. In my view, it does not matter precisely in which order the Tribunal takes the relevant steps. It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B's disability. 28. The words “arising in consequence of” may give some scope for a wider causal connection than the words “because of”, though it is likely that the difference, if any, will in most cases be small; the statute seeks to know what the consequence, the result, the outcome is of the disability and what the disability has led to.” 66. Mrs Justice Simler also dealt with the question of causation in Sheikholeslami v University of Edinburgh

2018 IRLR 1090

, EAT, in which she said: “this provision requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” 67. In the same case, Mrs Justice Simler stated that in relation to determining whether the “something” arose in consequence of the disability, “The critical question was whether on the objective facts, her refusal to return [the “something”] arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.” Justification

[47]Turning to objective justification, considering whether an action is objectively justified under section 15 EqA involves “weighing the employer's justification against the discriminatory impact. To do that, [the Tribunal] must engage in what is called critical scrutiny, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end….. while the test is an objective one and not a band of reasonable responses test, the authorities also establish that the test as to whether the measure is “necessary” does not mean that the employer must show that it was the only course open to it in order to achieve its aim. It effectively means “reasonably necessary”, as judged by the tribunal.” Stott v Ralli Ltd

2022 IRLR 126

, EAT.

[48]The Equality and Human Rights Commission Code sets out that, in order to be a “legitimate aim”, the aim should be “legal, should not be discriminatory in itself, and must represent a real, objective consideration.” (paragraph 4.28).

[49]Seldon v Clarkson Wright and Jakes (A Partnership)

2012 ICR 716

, SC noted that aims had to be relevant to the particular circumstances of the employment in question. “Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.” [61]

[50]In NSL Ltd v Zaluski

2024 EAT 86

, HHJ Auerbach summarises the authorities as follows: “76. However, the following particular points emerging repeatedly from the authorities (I cite only some examples) also need to be kept in mind. Firstly, the PCP must be "appropriate" to the aim or aims found to have been legitimately relied upon, which means that it must be rationally connected to that aim or aims, in the sense of being logically capable of furthering them (see, for example, Homer at [20] and [22]). 77. Secondly, the respondent does not have to show that the application of the PCP or PCPs was necessary to the achievement of the aim, in the sense of there being no alternative way to do so. Rather, the question is whether it is reasonably necessary: Hardys & Hansons plc v Lax at [28]. However, the balancing exercise may therefore include consideration of whether there were reasonable alternatives to the imposition of a discriminatory PCP: Homer at [24]. Further, in the proportionality or balancing exercise, the impact of the PCP on the affected group must be weighed against the importance of the employer's need. The more serious the disparate impact, the more cogent the justification must be: Hardys & Hansons plc v Lax at [19]; Homer at [20] and [24].” Harassment related to disability

[51]Section 26 EqA provides as follows. “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation”

[52]Unwanted conduct means conduct which is ‘unwelcome’ or ‘uninvited’ (Equality and Human Rights Commission (EHRC)’s Code of Practice on Employment (2011) (the “EHRC Employment Code”) paragraph 7.8). Unwanted conduct means conduct that is unwanted by the employee (Thomas Sanderson Blinds Ltd v English EAT 0316/10). Related to the protected characteristic

[53]The unwanted conduct must be “related to” the protected characteristic, here the Claimant’s disability. In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor

2020 IRLR 495

, EAT, His Honour Judge Auerbach made the following comments. “20…Secondly, the test of whether conduct is related to a protected characteristic is a different test from that of whether conduct is “because of” a protected characteristic, which is the connector used in the definition of direction discrimination found in section 13(1) of the 2010 Act. Put shortly, it is a broader, and, therefore, more easily satisfied test. However, of course, it does have its own limits. 21. Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself. The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. Fourthly, whether or not the conduct is related to the characteristic in question, is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. The fact, if fact it be, in the given case that the complainant considers that the conduct related to that characteristic is not determinative. These propositions, we think, derive from a pure consideration of the language of the statute, and have been articulated in previous authorities, including Hartley, O’Brien, and Nailard. ….24. However, as the passages in Nailard that we have cited make clear, the broad nature of the “related to” concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual’s conduct was related to the characteristic in question. Ms Millns confirmed in the course of oral argument that that proposition of law was not in dispute.

25. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.”

[54]In Carozzi v University of Hertfordshire

[2024] EAT 169

HHJ Tayler addressed the concept of “related to” as follows. “I consider that the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”. The limitations are that the conduct must be unwanted and it must have the purpose or effect of violating dignity. Where the conduct has that effect, but not that purpose, the Employment Tribunal will go on to consider the perception of B, the other circumstances and whether it is reasonable for the conduct to have that effect. Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one’s interest that colleagues should constantly be walking on eggshells, it is also important that proper protection is provided against violation of dignity at work. … 24. I consider that the Employment Tribunal erred in law in its approach to the concept of treatment related to a protected characteristic. On a fair reading of the judgment, the Employment Tribunal required that there must be a mental element so that, essentially, the treatment is because of the protected characteristic. At paragraph 18 the Employment Tribunal stated in terms that a mental element is required in a claim of harassment as much as in a claim of direct discrimination. The Employment Tribunal made a similar point at paragraph 107. The Employment Tribunal erred in law in that analysis. There is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. 25. Take, for example, a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people who have the protected characteristic. The fact that the person, when using the word, did not know that it had such a meaning or connotation, would not prevent the word used being related to the protected characteristic. That does not necessarily mean the person who used the word would be liable for harassment, because it would still be necessary to consider whether the conduct violated the complainant’s dignity. If the use of the word had that effect but not that purpose, the Employment Tribunal would go on to consider the factors in sub-paragraph (4) of section 26 EQA. That said, there could be circumstances in which, even though a word was used without knowledge of the offensive connotations, having considered the factors in subparagraph (4), the perception of the recipient, other circumstances and whether it is reasonable for the conduct to have that effect, the use of the word would nonetheless amount to harassment under section 26 EQA.” Proscribed Purpose or Effect

[55]Section 26(1) EqA requires that the unwanted conduct in question has the purpose or effect of: violating the Claimant’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The Claimant only has to show one of these two strands, i.e. that the conduct had either the proscribed purpose or the proscribed effect.

[56]The Court of Appeal gave guidance on determining whether the conduct has had the proscribed effect in Reverend Canon Pemberton v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham

[2018] EWCA Civ 564

as follows. “In order to decide whether any conduct falling within subparagraph (1)(a) has either of the proscribed effects under subparagraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all other circumstances - subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.” [88]

[57]Not all unwanted conduct is capable of amounting to a violation of dignity, or being described as creating an intimidating, hostile, degrading, humiliating or offensive environment. This is the case even if it may have caused the recipient to be upset. Grant v HM Land Registry

[2011] EWCA Civ 769

“Tribunal’s must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[58]Other circumstances of the case must also be taken into account under section 26(4) of the EqA. These will inevitably vary from case to case and may assist the Tribunal to determine the Claimant’s perception and the reasonableness of it. The EHRC Employment Code at paragraph 7.18 sets out that such circumstances can include the claimant’s health, including mental health; mental capacity; cultural norms; and previous experience of harassment. It can also include the environment in which the conduct takes place.

[59]Section 212(1) of the EqA states the following in relation to the definition of a detriment: ““detriment” does not, subject to subsection (5), include conduct which amounts to harassment”. Therefore, the correct sequence for addressing the Claimant’s complaints is to take harassment first, for if the acts amounted to harassment, they would not be detriments under section 212(1) EqA. Burden of proof in relation to EqA complaints

[60]The provisions relating to the burden of proof are to be found in section 136 of the EqA: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[61]Efobi v Royal Mail Group Ltd

2021 ICR 1263

, SC: the claimant is required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer an unlawful act of discrimination.

[62]Igen v Wong

[2005] EWCA Civ 142

remains the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It is not 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. It is clear that the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent did commit an unlawful act of discrimination it can.

[63]It is not sufficient to shift the burden of proof (in relation to a direct discrimination complaint) for a claimant to show only a difference in status and a difference in treatment. These are bare facts which 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 unlawful act of discrimination. (Madarassy v Nomura International Plc

[2007] EWCA Civ 33

[64]Madrassy further sets out that “could conclude” “must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later) the tribunal would need to consider all the evidence relevant to the discrimination complaint”.

[65]In Artem Limited v Edwins

[2024] EAT 136

this was also emphasised by HHJ Tayler, who stated that in relation to considering whether there was sufficient evidence to shift the burden of proof “an Employment Tribunal should not ignore evidence that suggests discrimination. However, I should also add that it is important that Employment Tribunals do not ignore evidence that suggests there has not been discrimination. What must be ignored at the first stage is any exculpatory explanation for the treatment.”

[66]Per Igen, in which the Court of Appeal approving the revised “Barton Guidance” if the burden of proof has moved to the respondent: “10) 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. 11) 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] ... 12)That requires a tribunal to assess not merely whether the Respondent has proven an explanation for the facts from which such inferences can be drawn, but further 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.” [76]

[67]In relation to a complaint of discrimination arising from disability, in order to establish a prima facie case of discrimination, the claimant has the burden of proving(i) that they were treated unfavourably by the employer;

(ii) that the “something” they rely on arose as a consequence of disability. If these elements are established and there are facts from which it could be inferred that the “something” was the reason for the unfavourable treatment, the burden of proof will shift to the respondent (Pnaiser v NHS England

2016 IRLR 170

, EAT). Time Limits

[68]Section 120 EqA permits an employee to bring a complaint as follows. “120 Jurisdiction (1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to— (a) a contravention of Part 5 (work);”

[69]Section 123 EqA provides that: “123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[70]Section 140B EqA permits an extension of time where ACAS early conciliation is undertaken: “In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.

[71]If the claim is brought outside of the three-month time limit, the Tribunal must make a determination in relation to section 123(1)(b) EqA: whether the claim has been brought within “such other period as the employment tribunal thinks just and equitable”. Conduct extending over a period

[72]For the purposes of calculating time limits, 123(3)(a) EqA refers to the concept of “conduct extending over a period” in relation to which the time will start to run at the end of that period. The case of Commissioner of Police of the Metropolis v Hendricks

[2002] EWCA Civ 1686

, related to predecessor legislation, but can be applied in relation to 123(3)(a) EqA regarding the concept of conduct extending over a period as follows. “52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”

[73]Conduct extending over a period may as a matter of law relate to more than one different protected characteristic – there is no requirement that the conduct relates to the same protected characteristic (Worcestershire Health and Care NHS Trust v Allen

2024 EAT 40

[74]The EAT in South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

made clear that any act which is found not to be an act of discrimination cannot be part of a continuing act. The claimant cannot rely on acts which are found by the Tribunal not to be breaches of the EqA for the purposes of establishing conduct extending over a period. Should the Tribunal use its discretion to extend time?

[75]The Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

summarised the position at paragraphs 18 and 19: “[18] … It is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the equality act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in the circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list … [19] that said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”

[76]Legatt LJ went on to say [25] “As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.”. Harassment: Conclusions 4.1.1. Penny Endersby’s comments in the 12 March 2024 briefing

[77]The act complained of is described in the List of Issues as being “Penny Endersby’s comments in the 12 March 2024 briefing”. In submissions, the Respondent sought to argue that this could not, without an amendment application, be expanded to the whole briefing but only on the excerpt quoted in paragraph 6 of the Grounds of Claim. I note that the Respondent did not write to the Tribunal in order to narrow it the alleged discriminatory act in the List of Issues to the words set out in paragraph 6. This despite having done so to correct other matters in relation to the List of Issues.

[78]Paragraph 22 of the Grounds of Claim refers to “Penny Endersby’s comments in the 12 March 2024 briefing”. This is the wording mirrored in the List of Issues. I therefore find that all of the words set out in the briefing can be taken into account because that was the pleaded case in paragraph 22.

[79]The Respondent concedes that this was unwanted conduct.

[80]The Respondent concedes that it related to the Claimant’s protected characteristic, namely disability.

[81]The Claimant accepts that it was unlikely that this had the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. In my finding there is no evidence of any such intent, and I find that it did not have the proscribed purpose.

[82]I find that the Claimant did subjectively perceive the conduct as creating the proscribed environment. This is based on her evidence that she felt humiliated and belittled which was not challenged by the Respondent, and that it contributed to her becoming unwell with stress.

[83]The Respondent’s position is that it was not reasonable for the conduct to have this effect, and that the Claimant only managed to take offence at this briefing by entirely misconstruing what the message said and omitting chunks of text.

[84]I consider that that on one reading, the one intended by Professor Endersby, the needs of those who are neurodiverse were being acknowledged. However taking all of the circumstances into account, it is relevant to my consideration that 84.1. the Claimant had previously had a very distressing experience with a floorplate move conducted by the Respondent; 84.2. the Claimant had been told earlier the same day about changes (removal of barriers in E2) which would affect whether her own reasonable adjustments could be accommodated; 84.3. Ms Gilchrist had, following discussions with the Claimant, raised serious concerns about the Respondent’s proposals with the senior leadership the previous day in relation to the impact on disabled people (and particularly neurodiverse people); and 84.4. whilst some other employees had had positive reactions to the messaging, others had reactions similar to that of the Claimant.

[85]Taking all of the circumstances into account, it was reasonable for the Claimant to feel that the chosen wording minimised the difficulties experienced by those who struggled with change, that she felt that the words “a particular lot of angst” were directed at the issues which had been raised by the neurodiversity networks in Ms Gilchrist’s email, and to feel that the words about “the rest of us” needing to put matters in proportion created a sense of “otherness” about those who were neurodiverse. In short, it was reasonable for the briefing to have the proscribed effect.

[86]This allegation of harassment related to disability is well-founded and is upheld. 4.1.2 Penny Endersby’s post on Viva Engage on 14 March 2024

[87]The post and that it was unwanted conduct are not in dispute.

[88]The Respondent denies that it related to the Claimant’s protected characteristic, namely disability, on the basis that Professor Endersby’s post was aimed at everyone who had made unkind and/or inconsiderate posts. The Respondents further submission was that insofar as it was related to the Claimant’s posts, it was not the Claimant’s disability which led her to “misread Ms Endersby’s briefing so spectacularly and then broadcast her view of it to 2,500 people” [69].

[89]Professor Endersby’s evidence was that the Claimant’s 12 March 2024 post had been hurtful to those who had helped plan the floorplate move and those who had worked on the All Staff Briefing (referring to staff in the HR, communications and property teams). Professor Endersby’s post was directed at a number of posts on Viva Engage which she described as unnecessarily hostile in tone. However, she says at paragraph 18 of her witness statements that the Claimant’s posts were “among the most aggressive”. The Claimant’s posts were, in my finding, a material reason for Professor Endersby’s post.

[90]The Claimant’s post of 12 March 2024 primarily made the point that the way the floorplate move was being implemented by the Respondent did not take into account the needs of disabled individuals, as well as saying that she felt that autistic people were being targeted for speaking up in an attempt to get their needs met. Her post of 13 March 2024 was a reply to Ms James’ post about those with disabilities, it referred to “those of us whose needs are routinely not met” and referred to her “disability-related needs” being deprioritised in a previous office move. This post can therefore also be easily understood to be referring to the same group as her previous post had – namely disabled people. The connection between the Claimant’s posts, which primarily relate to her attempts to advocate for those with disabilities and autism in particular, and the protected characteristic is clear. There is no scope to sever the Claimant’s posts in the way the Respondent suggests from the relevant protected characteristic of disability. The unwanted conduct was because of these posts about disability and therefore, in my finding, related to disability.

[91]The Claimant accepts that it was unlikely that this had the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. In my finding there is no evidence of any such intent, and I find that it did not have the proscribed purpose.

[92]I find that the Claimant did subjectively perceive the conduct as creating the proscribed environment. This is based on her evidence which was not challenged by the Respondent.

[93]The Respondent’s position is that it was not reasonable for the conduct to have this effect.

[94]The Claimant felt that this post was directed at, and critical of, hers and others’ attempts to raise concerns about their needs as disabled people. As set out above, this was also in fact what the post was, at least in part, directed at. Taking this and all of the circumstances into account which I have referred to in relation to the previous allegation, I consider it was reasonable for the conduct to have the proscribed effect.

[95]This allegation of harassment related to disability is well-founded and is upheld. 4.1.3 Penny Endersby’s comments relating to her “personal style” during a meeting with the Claimant on 3 July 2024 following her email to Prospect on 25 June 2024 referring to “relentless hostility and negativity” and followed by comments about it not being “fair to the exec” to have to work with the Claimant and a “broken relationship with the autism network” at the meeting on 18 July 2024.

[96]The facts are not in dispute. Based on the Claimant’s evidence this was unwanted conduct.

[97]I find that all of these comments relate to the Claimant’s Viva Engage posts but also, and more significantly to the meeting between the Claimant and Ms Lille on 18 June 2024.

[98]The Respondent disputes that these comments relate to disability. It is argued that this relates to the Claimant’s conduct, which is said is separable from her communication differences. However, there is no clarity as to what it was about her conduct which could be separated from the way in which she communicated. Ms Lillie felt under attack and that she was being used as a punchbag because of the Claimant’s and Ms James’ conduct in the 18 June 2024 meeting. I consider that this arose because of the Claimant’s way of communicating as well as Ms Lillie’s perception of this as being aggressive. There is no identifiable separate conduct which can be said to be separate from communication.

[99]The Respondent made submissions the Claimant’s case as to “how she communicates and is perceived to communicate” was insufficiently clear. However, the concession made by the Respondent in relation to this is also lacking in particularity.

[100]I was asked by Mr Jarvis to take account of what the Claimant had said in evidence and the communication differences raised by the Claimant and Ms James in the 18 July 2024 meeting.

[101]The Claimant’s evidence was that people sometimes misperceive the Claimant as an autistic person, particularly in person. The Claimant’s tone, body language, eye contact, word choice and literal language without padding could sometimes be interpreted as being rude and offensive. Similar things were raised in the 18 July 2024 meeting, in particular that people misunderstand the intent of autistic people when there were communication difficulties between them.

[102]I was also asked to take judicial notice of the information on the NHS website regarding autism and that on the National Autistic Society website. No objection was made by Ms Palmer to this suggestion. The NHS records common signs of autism include seeming blunt or rude without meaning to and finding it hard to say how you feel. I note that the National Autistic Society website states that for autistic people distressed behaviour that may present as aggression. The website also contains information about the “double empathy problem”, saying that autistic people can struggle to process and understand the intentions of others within social interactions, but that this can often go in both directions with this being a mutual problem. This refers to non-autistic people struggling to read the emotions of autistic participants or forming negative first impressions of autistic people.

[103]Professor Endersby acknowledged in cross examination that the Claimant’s “personal style” could not be separated from her style as an autistic person.

[104]I find that Professor Endersby’s references to “relentless hostility and negativity” as well as her comments about it not being “fair to the exec” to have to work with the Claimant and there being a “broken relationship with the autism network” are all a reflection of both the Claimant’s communication in the Viva Engage posts and, more materially, to her communication to Ms Lillie in the meeting on 18 June 2024. Whilst there is mention of previous incidents, I find that the March 2024 posts and 18 June 2024 meeting are what, in fact, precipitated the comments.

[105]These are in essence, once again, comments as to the Claimant’s communication style as an autistic person. The Claimant’s conduct in this context is not properly separable from her style as an autistic person, and Ms Lillie’s perception of that communication style as being aggressive also results from the way in which the Claimant communicates.

[106]There is no evidence to support a finding that the conduct had the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.

[107]I find based on the Claimant’s evidence that subjectively, it had the proscribed effect.

[108]In all of the circumstances and in circumstances where such personal and direct criticism was being made of the Claimant by the CEO, it was reasonable for the conduct to have had this effect.

[109]This allegation of harassment related to disability is well-founded and is upheld. Discrimination arising from disability: Discussion and

Conclusions

[110]The Respondent has conceded disability and knowledge of disability.

[111]There are two allegations which remain to be determined as alleged acts of discrimination arising from disability. 3.1.2 Tammy Lillie’s email to the Claimant and Sara James on 19 June 2024, which notified the Claimant of potential disciplinary action. 3.1.3 The decision to no longer support the Claimant as Co-Lead of the Autism Network.

[112]These are factually accepted and accepted as being unfavourable conduct.

[113]The Claimant withdraws the contention that her position as Co-Lead of the Autism network arises from her disability.

[114]The Respondent concedes that the way in which the Claimant communicates arises from her disability. The Respondent’s Grounds of Resistance appear to rely on justification arguments only, but the Respondent’s submissions seek to create a distinction between the reason for the unfavourable treatment, saying that this is conduct which can be separated from the Claimant’s way of communication, and is therefore not because of the “something” arising from disability.

[115]I refer to my previous findings regarding the way in which autistic people communicate and how that communication is perceived by non-autistic people. I find that this also arises from disability.

[116]I do not repeat my findings as to the interactions between the Claimant and Ms Lillie on 18 June 2024. I have found that the Claimant’s conduct is not separable from her way of communicating as an autistic person, and the way that was perceived by Ms Lillie as a non-autistic person.

[117]In relation to the email of 19 June 2024, the Respondent also points to Ms Jame’s obscene gesture being a major reason for the email. It is clear that Ms Lillie’s email was because of the 18 June 2024 meeting. Whilst Ms James’ gestures at the end of the meeting played a part, the Claimant would not have been included in the email from Ms Lillie if her alleged conduct was not also a material reason for sending the email.

[118]The Respondent’s decision not to provide an executive sponsor to the Autism Network unless there was a change in leadership was also based on the meeting of 18 June 2024. I find that this related primarily to the relationship between Ms James and the Claimant and Ms Lillie, rather than preceding events regarding Viva Exchange posts, however this did form part of the relevant background.

[119]I have found that there was no conduct in that meeting which is separable from the pleaded “something arising from”. Therefore, the unfavourable treatment was because of something arising from disability.

[120]The Respondent says that its legitimate aims were ensuring the well-being of other staff and ensuring that staff behaviour was acceptable and in accordance with its values.

[121]I consider that the stated aims are legitimate aims. They are not discriminatory in themselves and represent real, objective considerations for the Respondent’s business.

[122]I go on to consider whether the treatment complained of was an appropriate and reasonably necessary way to achieve those aims.

[123]Both sides were clearly upset by the interaction on 18 June, and Ms Lillie herself was able to observe that the Claimant had also been upset during the meeting. It is not self-evident why Ms Lillie’s wellbeing should be prioritised over that of the Claimant’s. This does not appear to strike a balance between the needs of both parties.

[124]I consider that the evidence in relation to other employees finding the Claimant’s Viva Exchange posts upsetting is relevant. Professor Endersby referred in both contemporaneous exchanges and in her witness evidence to the fact that individuals became very upset and unwell as a result of the Claimant’s posts. On that point, all I have on this is Professor Endersby’s evidence, there is no documentation before me on this such as emails to her or HR records. I was told by the Respondent that there is no such documentation. One might have expected that there is some documentation, given this appears to be a key part of the Respondent’s justification argument. Or perhaps even a grievance given the level of seriousness attributed to this by the Respondent by effectively saying it is the Claimant’s fault that other employees became ill. I do not doubt Professor Endersby’s evidence that she was told others were upset by the Claimant’s post and took time off work, it is clear that there are very strong feelings on both sides. It is worth noting that Professor Endersby’s post had the same effect on the Claimant. She was very upset and also became unwell with stress.

[125]I consider that there was not the appropriate balance struck between both parties’ needs. I find that both acts of unfavourable treatment were a disproportionate way to deal with the clear breakdown of the relationship in the relevant meeting. Ms Lillie used her position of seniority to make serious accusations of bullying against the Claimant coupled with a threat of unspecified “action”. In saying she would withdraw an executive sponsor whilst the Claimant remained in post, Professor Endersby did not take a neutral approach but rather appeared to simply accept Ms Lillie’s perspective on what took place during the meeting. Despite Dr O’Sullivan, the Claimant’s and Ms James’ attempts to explain communication differences, this does not appear to have been taken into account, but was simply dismissed with little consideration on the basis that the relevant conduct could not be excused by neurodiversity.

[126]A more proportionate and less discriminatory approach would have sought to approach the matter more neutrally and to have a carefully planned and coordinated discussion regarding both parties’ experiences of the meeting. There could have been an attempt to provide support and constructive feedback. There should have been a more considered approach to how the Claimant’s communication differences might have had an impact on what took place.

[127]I consider that the treatment complained of was not an appropriate and reasonably necessary way to achieve those aims.

[128]These complaints of discrimination arising from disability are well founded and upheld. Remaining Allegations

[129]The remaining allegations are duplications of acts which have been upheld as either discrimination arising from disability or acts of harassment related to disability. I agreed with the parties that the correct approach was not, therefore, to go on and consider them under another section of the EqA. Jurisdiction: conclusions

[130]Professor Endersby was involved in all but one of the acts complained of. All relate to a chain of events which arose out of the floorplate move and I consider that this is a series of connected acts. They cannot be described as unconnected or isolated.

[131]I consider that the acts complained of form part of conduct extending over a period and are therefore not out of time.

[132]I therefore find that the Tribunal has jurisdiction to determine all of the acts complained of. Approved by