Ms V Tilford v Secretary of State for Justice: 6020546/2024

EMPLOYMENT TRIBUNALS

Case No 6020546/2024

Between

Ms V TilfordClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge EP Morgan KC

Ms. Ibbotson (instructed by Counsel) for claimant

Mr.McLean (instructed by Counsel) for respondent

Date 4 December 2025

JUDGMENT

[1]The claim of indirect discrimination on the grounds of age is not well founded and is hereby dismissed.

[2]The claim of indirect discrimination on the grounds of sex is not well founded and is hereby dismissed.

[3]The claim of harassment related to the protected characteristic of age and/or sex is not well founded and is hereby dismissed.

[1]The Tribunal delivered its judgment orally on 20 November 2025. By email transmitted on 26 November 2025 those acting for the Respondent requested written reasons pursuant to Rule 60.4(b) of the Tribunal Rules. These Reasons are provided pursuant to that application. Introduction

[2]By her claim form issued on 2 December 2024, the Claimant brought claims of indirect discrimination and harassment. In respect of both claims, she relied upon the protected characteristics of age and gender. The Claims were resisted in their entirety. The issues requiring resolution were identified in the course of a preliminary hearing. Subject to what follows, the issues for determination are those set out in the appendix to the consequential case management orders.

[3]At the outset of the hearing, Ms. Ibbotson confirmed that for the purpose of the indirect discrimination claim, the Claimant relied upon essentially a single allegation and PCP, namely: the requirement that the Claimant satisfactorily complete a recruitment fitness test. It was confirmed that —for reasons which will become apparent in the course of what follows— the Claimant was not at any time called upon to participate in an annual fitness test. Evidence

[4]The Tribunal was provided with an agreed bundle extending to in excess of 730 pages. It was made clear to the parties that the Tribunal would have regard to those documents to which its attention was specifically drawn. The parties and the Tribunal proceeded by reference to this convention.

[5]The Claimant gave evidence before the Tribunal. She did not call any supporting witnesses. The Respondent adduced evidence from Mr. Connolly (Acting Governor); Mr. Whitehead (Deputy Governor); and Mr. Tune (Head of Testing). Findings of Fact

[6]The Tribunal is mindful that it is not required to resolve every factual dispute between the parties. Rather, it is required to address those matters which are necessary to inform its resolution of the issues and claims before it. With this in mind, and having considered the evidence provided by the parties, and upon the balance of probabilities, the Tribunal has made the following principal findings of fact:6.1 During the Spring of 2020 —and at the height of the COVID pandemic—the Claimant sought and obtained a temporary position as a reserve officer within the Prison Service [p71]. At that time, it was made clear that such appointment was made subject to pre-employment checks and procedures. The Claimant had previously served as a prison officer. However, but at the time of making her application in 2020, she had been out of the Prison Service for a period of 18 years;

6.2 By June 2021, the Claimant had completed the required pre-employment security clearance checks [p74]. She was scheduled to commence duties on 9 August 2021 at HMP New Hall;

6.3 For this purpose, the Claimant was required to participate in a course of refresher training. This was scheduled to take place in autumn 2021. It was made clear [p76] that additional training might be required at the discretion of the Governor;

6.4 In advance of her commencement, the Claimant received an email detailing her reporting schedule and place of work [p74]. It was made clear that the contract (and any appointment) was temporary. There was an issue between the parties as to whether the Claimant received a letter dated 22 July 2021 enclosing her principal terms and conditions of appointment. The enclosed terms and conditions incorporated a provision regarding ‘Fitness Standard’. It made clear that, given the appointment was temporary, no fitness test was required at that time. However, it continued: “However, should your fixed term appointment be extended or transitioned into permanent appointment, in line with current policy as you have re-joined the service as an operational prison officer …it will become a condition of your continued employment that you satisfy the fitness criteria set down by HMPPS and that you pass an annual fitness test…”

6.5 The letter dated 22 July 2021 [p77] called upon the Claimant to formally respond to, and indicate her acceptance of, the terms of the offer. By email of 27 July 2022, the Respondent was confirming receipt of the Claimant’s acceptance of the offer made [p89]. Subsequent examination of the electronic records indicated that the Claimant had been chased for a response to the initial offer [p270];

6.6 The Claimant denied receiving the letter of 22 July 2022; with the result that — as far as she was concerned —she was “completely unaware” of the need to participate in any fitness test or regime in the event of her position becoming permanent. The Claimant also contended that – had she been made aware of this requirement at the relevant time- she would not have applied for nor accepted the position of Prison Officer. The Tribunal is unable to accept this assertion;

6.7 In August 2022, Guidance was issued to all prison Governors in connection with the re-appointment of officers who had previously left the Prison Service [p503]. This Guidance confirmed that certain exceptions were directed those who had left the service within the preceding 5 years. The Guidance also made clear that any re-appointment would take effect upon existing terms and conditions and the requirement to undertake a fitness test as a condition of re-employment [p504]. In the view of the Tribunal, as a result of the COVID 19 Pandemic, there was recognised to be a system wide recognition of the shortage of officers and the need to enhance the potential for re-appointment of officers of experience. This Guidance was intended to underscore that ambition; whilst at the same time provide clarity and consistency to the recruitment process itself;

6.8 At the time of her recruitment, the Claimant was signposted to an induction portal [p89]. The “Welcome Pack”— of which the terms and conditions were part— included notification of legal obligations, including those under the Official Secrets Acts;

6.9 Ultimately, the role of Prison Officer is a civil service appointment. The Tribunal is satisfied, given the Claimant’s previous service, that she was aware of the need for such documentation to be issued and, in the event that it had not been provided, she would have had no hesitation in bringing this to her line manager’s attention;

6.10 Furthermore, having returned upon a fixed term contract, the Claimant made overtures for her position to be made permanent. She did so by representations to the then Governor of HMP New Hall. Her working relationships with her colleagues (including Mr. Connelly) were positive and affirming. They endorsed her migration to a permanent position [p92]. This was confirmed in February 2022 [p93]. At no time in this process, did the Claimant make any criticism of complaint about the absence of a contract or terms and conditions. The Tribunal is satisfied that she was already aware of them. The Tribunal is further satisfied that given the nature of the Claimant’s experience and intelligence, had she considered there was any doubt about the terms of her appointment, she would have raised matters with her line manager (Mr. Connelly) or her Prison Officer Association. The relevance of this issue is addressed later in this judgment;

6.11 At all times material to this claim, the Claimant held the position of Grade 3 Prison Officer. It is common ground that the Job Description for that role is that detailed within the bundle before the Tribunal [p65]. The document is detailed. It has been annotated to indicate that it was issued as recently as February 2020 (i.e. the year prior to the Claimant re-joining the service). That document has been compiled with a number of objectives in view. Firstly, it is intended to capture the responsibilities of the Grade 3 officer. Secondly, to detail the activities and prisoner facing roles in which Grade 3 officers become involved. The headline of the role summary is to supervise, manage, and control prisoners. This primary obligation is subject to further detail. Upon an objective reading of that document, one is left in no doubt as to the physicality of this role. This is underscored by the fact that it outlines a variety of circumstances in which the Grade 3 prison officer might be called upon to intervene, to assist and/or or to support prisoners and colleagues; doing so in demanding circumstances and in a time critical environment. Any doubt in this respect is removed when regard is had to the reference to dealing with instances of self-harm, and related strategies and the citation of ‘first on scene’ incident response [p67]. The Tribunal is satisfied that whilst the frequency of such events was uncertain and unpredictable, the physical demands placed upon Grade 3 Prison Officers require to participate, ought to have been self-evident and uncontroversial. In the view of the Tribunal, the potential for such occurrence and the need for effective participation in any response were key to the formulation of the Grade 3 Prison Officer’s role;

6.12 During the course of her employment with the Respondent, the Claimant was referred to Occupational Health. It was the Claimant’s evidence that —in each instance— the referral was not at her request but was, in her view, undertaken in order “to protect the organisation”. Throughout the period with which the Tribunal is concerned, the Respondent utilised the services of an independent third-party healthcare provided for the conduct of occupational health referrals;

6.13 The Claimant was first referred to Occupational Health in October 2022 and arose as a result of a physical intervention involving a prisoner [p94]. The consequential report identified the Claimant as experiencing shoulder pain and— on that account— temporarily unfit for duties. No challenge was made to the detail of that assessment. The Claimant was able to return to full duties in a matter of days;

6.14 Between October 2022 and February 2023, the Claimant experienced modest sickness absence. On each occasion of returning to work, there was no suggestion of any need for adjustment in her duties [p104];

6.15 By March 2023, the Claimant was suggesting that a recent bout of migraine headaches might be referrable to the menopause [p105]. This prompted a further referral to Occupational Health by the Claimant’s line manager, Mr. Connelly. A Formal Attendance Meeting had been scheduled for April 2023 [p107]. In advance of that meeting, the Claimant had again been assessed by Occupational Health [p110]. At that stage, and for the first time in her interaction with Occupational Health, it was reported by the Claimant that the migraine headaches were potentially menopausal symptoms and/or the side effect of HRT medication. The OH advisor confirmed the Claimant to be otherwise fit for work and advocated the use of a migraine diary. The Occupational Health advisor did not attempt any form of diagnosis or offer other clinical conclusion. The Respondent drew upon that report in order to action the Menopause at Work toolkit [p113]. At the same time, the Claimant was signposted to other forms of potential adjustment in terms of flexible working arrangements [p114];

6.16 By June 2023, it had been identified that – as a new permanent recruit— it was necessary for the Claimant to participate in the recruitment fitness test [p119]. This was in accordance with the terms and conditions of appointment previously issued to the Claimant. At the time of raising this issue, the Staff Fitness and Delivery Manager confirmed that participation in such a test was relevant to the duty of care owed to the Claimant. The need for this test was cascaded to local management to implement the necessary arrangements [p122];

6.17 By 7 July 2023, the Claimant was absent on account of prisoner related injury [p125]. By this stage, the Claimant was expressing her own view that she was not required to participate in any fitness test. Her direct managers encouraged her to seek union advice [p126]. At that time, the Claimant had also volunteered the view that she would not be in a position to pass any test [p127]. Pausing there, from a very early stage, the Claimant formed the view that she was being singled out for negative treatment and that, in reality, she was the only person required to undertake this test. The Tribunal does not accept that position. From first to last, the Claimant was being encouraged and supported by her line managers to seek guidance regarding the requests being made of her and practical support and assurance concerning the need for and requirements of the fitness test itself;

6.18 By email of 23 August 2023, the Claimant was informed that arrangements had been made for her to participate in the recruitment fitness test [p136]. This email confirmed that the Claimant was being given time for preparation for the test itself. The Tribunal is satisfied that the scheduling of the fitness test was intended to ensure that those participating had the ability to access support and enhance their level of fitness in readiness for the test itself. These arrangements, included access to training advice, fitness staff and facilities;

6.19 The Claimant had queried whether she was in fact required to undertake any test. This prompted Mr. Connelly to obtain a copy of the Claimant’s contract. Having done so, he wrote to the Claimant on 18 August 2023 [p149]. By that stage, the Claimant had made clear her intention not to attend the fitness test scheduled for 23 August 2023. This was due to her insistence that there was no contractual obligation upon her to do so [p160]. The Claimant was provided with a copy of her contractual terms [p150];

6.20 By 1 September 2023, the Claimant had been off work due to migraine headaches. She associated these headaches with menopause [p154]. As before, this prompted a further referral to Occupational Health. It was by means of this Report that the Respondent was informed —for the first time— of the suggestion that the Claimant perceived herself unable to complete the fitness test by reason of her menopause [p155]. The Claimant provided details of symptoms to the Occupational Health advisor. However, she reported herself able to discharge her full duties. Despite this, and in answer to direct question from the Respondent’s managers, the Occupational Health advisor indicated that the Claimant “does not appear to be fit enough to complete the required fitness test and she is unlikely to pass the fitness test due to the combination of her menopausal symptoms…”. As with previous assessments, this was undertaken telephonically. The advisor was not given access to the Claimant’s medical records or the details of any treatment being provided by the Claimant’s GP. There was no attempt on the part of the Occupational Health advisor to explain why it was considered that the Claimant was fit to carry out her occupational duties but not undertake the fitness test. At this stage, the objection was to the test in its entirety and no to any specific element of it;

6.21 By letter of 12 September 2023, the Deputy Director of Prisons issued a notification confirming the suspension of the annual fitness test. This decision was as a consequence of a recently conducted review exercise [p157]. It was made clear that the recruitment fitness test would remain in place. Insofar as this decision involved a dispensation, it did not extend to the Claimant;

6.22 The Respondent continued its efforts towards the Claimant’s participation in a fitness test. However, it was recognised that the Claimant would require support to do so [p167];

6.23 By 26 September 2023, the decision had been made that the Claimant should not be on full duties until the fitness test had been completed [p167]. The communication of this decision made clear that this was on account of perceived risk and health and safety concerns. A plan of support had already been devised [p168]. This development prompted a request that the Claimant permit her medical Occupational Health assessments to be shared [p173]. This request was made for the purpose of identifying adjustments for the benefit of the Claimant. The Claimant declined to give her consent. The Claimant was also signposted to the grievance process at that time. A further request was made for consent to share information on 9 October 2023 [p175]. In the absence of the Claimant’s consent, a further fitness test was scheduled for 26 October 2023. As a consequence, no informed adjustments could be made. The Claimant was informed of this position [p189]. The Claimant attended on 26 October 2023 and following triage by the assessor, and her recital of her medical history, she was not allowed to proceed to undertake the test itself;

6.24 The Claimant was once more referred for Occupational Health assessment. The resultant report is dated 15 November 2023 [p193]. Despite recitation of menopausal symptoms, the advisor reported the Claimant’s view that she remained fit for full duties: [p194]. The Report relied upon the same symptoms —as recounted by the Claimant— to opine that the Claimant was unfit to complete the fitness test. The outcome was a suggestion of deferral of the fitness test. There was no engagement with the detail of the Claimant’s role, the nature of her symptoms and their significance, or the safety of her continued engagement in the working environment in the light of the symptoms relied upon. The result is a recommendation for deferral of the fitness test. This was acted upon;

6.25 The Respondent confirmed its intention to retain the Claimant on adjusted duties [p201]. It was made clear that these measures were intended to support the Claimant and were the product of a risk assessment [p203]. The effect of these arrangements was to require the Claimant to discharge the duties of an operational support grade (OSG). This was recorded by the Respondent’s management as a ‘reasonable adjustment’ [p204]. At that stage, the Claimant indicated that she consented for her ‘menopausal symptoms’ to be shared with the fitness centre and gym staff [p202];

6.26 The sharing of information with specialist training staff prompted the offer of direct help and support to assist the Claimant in her preparation for the fitness test [p206]. The proposal included the formulation of a training plan spanning between 6 and 12 weeks. In the view of the Tribunal, this ought to have provided the Claimant with assurance as to the Respondent’s commitment in facilitating a successful outcome and restoration to full operational duties;

6.27 By 30 November 2023, consideration was being given to the formulation of an adjusted fitness test; known as the RAFT. Mr. Tune informed the Claimant’s manager that the RAFT had been formulated to accommodate mobility restrictions but did not involve any accommodation for those experiencing ‘menopause symptoms’ [p209]. The Respondent had, by 20 November 2023, accepted the Occupational Health Report recommendation that the fitness test be deferred but was exploring the means by which the Claimant’s own circumstances might be accommodated. These efforts prompted the suggestion that one component of the fitness test (i.e. the bleep test) might be removed, and a treadmill test substituted [p213]. Training plans for both were proposed [p213]. The Claimant considered that this substitution was inadequate and suggested that the bleep test should be replaced with a ‘static bike test’ [p214]. However, at the same time, the Claimant was resistant to the need for her to participate in any form of fitness test. She was of the view that no such test was required on the ground that she had passed the relevant tests “last time I worked for the service” [p214]. As previously noted, her previous service had ended over 18 years earlier;

6.28 A further Occupational Health assessment report was provided. It is dated 7 December 2023. As with each of the previous reports, it was consequent upon a telephone assessment of the Claimant. It did not involve physical examination or consideration of the Claimant’s medical records. In the view of the Tribunal, it was entirely dependent upon the information provided by the Claimant. The advisor recorded that the Claimant was —at that stage— absent from work on grounds of sickness. The author was informed by the Claimant that she had been ‘downgraded’ to OSG and that this decision had ‘caused a decline in her mental wellbeing’. The author opined that the Claimant was experiencing symptoms of ‘severe anxiety and moderately severe depression’. Whilst this opinion is said to be the product of assessment, no further details were provided. The Report records that whilst the Claimant had reported the introduction of a new form of HRT treatment, it was not possible to indicate whether the revised therapy would be effective in addressing her reported symptoms. In relation to the Claimant’s ‘Current Capacity for Work’, the author of the Report commented: “In my opinion, Ms. Tilford is fit for her substantive role however I do not recommend she undergoes fitness testing as she is experiencing uncontrolled side effects relating to the menopause. In my opinion, it is advisable to consider deferring testing for 3-6 months when hopefully the effects of her new HRT are notable and her symptoms have subsided. We discussed alternative tests, such as the treadmill test, and the requirement to walk at a brisk pace, with an increasing gradient for 10 minutes. Ms Tilford does not believe this would be possible and given that it is the same overall measure of level of fitness, I do not feel she would manage with her current symptoms as they are.”

6.29 The Claimant maintained her own view that fitness testing was unnecessary and her allocation to OSG duties constituted a downgrade [p224]. It had been explained to the Claimant that her restoration to full grade 3 duties was dependent upon completion of the fitness test [p225]. The Claimant remained on sickness absence on account of her mental health;

6.30 For its part, the specialist training staff team, continued to provide the Claimant with advice regarding the best means by which to prepare for participation in the fitness test. This was intended to serve as preparation for participation (in due course) in the RAFT. A training plan was compiled. It anticipated progression over a 6-week period [p221]. It was made clear to the Claimant that the RAFT would only involve ‘power walking’ and running was neither required nor permitted [p222];

6.31 By email of 3 January 2024, the Claimant indicated her willingness to undertake the fitness test. She expressed the view that —far from being supported— she was in fact being ‘victimised and bullied…’[p231]. At the same time, arrangements were being adopted to manage the Claimant’s sickness absence. In the course of this correspondence, the Claimant reported: “I am not too good with all this victimisation”[p238]. A meeting was convened on 16 January 2024. In the course of that meeting, the Claimant reported that she was ‘depressed’ but otherwise fit for duties. The Claimant repeated her position that the fitness test was unnecessary and, should not have been required in her own case because she was not a new recruit [p240]. The Claimant was supported in that meeting by her trade union representative. At that time, it was suggested on the Claimant’s behalf that no offer of permanent employment should have been made to the Claimant without first requiring her to participate in a fitness test and the fact that —on the Claimant’s view— this had not occurred was the responsibility of the Respondent. In the same meeting, the Claimant reported that the noncompletion of the fitness test in October 2023 was due to the content of the Occupational Health report and not any physiological examination of the Claimant at the time of the test [p244]. It was confirmed that the Claimant intended to submit a grievance [p246] in relation to the allocation to OSG duties. It was made clear that the Claimant considered the requirement to participate in a fitness test amounted to victimisation, discrimination and workplace bullying [p250];

6.32 On 17 January 2024, and in line with its ongoing risk assessment, the Respondent devised a bespoke shift pattern which required the Claimant to participate in OSG duties. The Claimant consented to this arrangement [p254];

6.33 The Respondent received a further Occupational Health report dated 26 January 2024 [p260]. Having recounted the symptoms reported by the Claimant, the author recorded the Claimant’s wish to participate in the RAFT when in receipt of appropriate HRT treatment. The advisor opined that the Claimant remained fit for ‘modified duties’ which ‘management had accommodated’. A recommendation was made for the completion of a risk assessment when the Claimant was fit to return to her substantive role. In line with the agreed regime, this Report was shared with management and the Claimant. Upon receipt, the Claimant objected to its contents. In doing so, she declared the report to be inaccurate regarding her current fitness for work. According to the Claimant, she was fit for full substantive duties at that time. She relayed this challenge to Mr. Connelly on 1 February 2024 [p264]. The Claimant objected to the report being shared with those crafting training support for her. Mr. Connelly escalated these challenges but, despite his repeated attempted interaction with the company, he was unable to resolve matters [p268]. He determined that the matter could be resolved by a new referral;

6.34 By 28 January 2024, the Claimant had submitted a formal grievance [p287]. The grievance template was populated to indicate assertions of harassment on the grounds of gender and discrimination. Reference was also made to the issue of victimisation on the grounds of gender. It was said: “…been singled out to complete a test which no other prison officer throughout the country has to do unless they are a new recruit…”

6.35 The remainder of the form has been populated to indicate the Claimant’s view that all fitness tests had been suspended. This was not the case. Whilst the annual fitness test had been suspended pending formulation of a substitute assessment regime, the tests applicable to those recruited to the service remained in place. It is important to note that the grievance included the following assertion: “I must point out that other staff here at New Hall and other jails have been remployed [sic] and not been told to take the fitness test…”

6.36 The Tribunal is unable to accept this assertion. During the course of evidence —and in answer to a direct question from the Tribunal— the Claimant was asked to clarify her own understanding of the level of those re-employed and, in respect of the re-employed cohort, the number who migrated from fixed term to permanent officer status. The Claimant indicated that there had been a cohort of 6 officers. She was unable to provide any evidence as to the number who had migrated to permanent employment. The Respondent’s witness indicated that the Claimant was the only person to transition from temporary to permanent officer at HMP New Hall. The Tribunal accepts that evidence as accurate;

6.37 In her grievance, the Claimant also contended that she had been ‘downgraded’. This was a reference to the removal from Grade 3 Officer duties and temporary assignment to OSG. In the view of the Tribunal, this was fundamentally inaccurate. As had been made clear, the Claimant’s duties had been adjusted pending resolution of fitness related issues as part of a risk assessment. There was no suggestion at any time that her substantive post was otherwise affected or that the temporary allocation to OSG was permanent;

6.38 Central to the grievance was the Claimant’s assertion that she had not received her contract. For reasons already addressed in this judgment, the Tribunal is unable to accept that evidence. The Tribunal is satisfied and finds that the relevant documentation was received by the Claimant electronically within the recruitment process;

6.39 The grievance was not upheld. The Claimant exercised her right of appeal [p295]. Following a grievance appeal on 15 April 2024, the appeal was dismissed. Importantly, by the time of formulating her appeal, the Claimant conceded that there was a contractual provision requiring her to undergo a fitness test. However, she remained of the view that all tests had been suspended [p295]. For the reasons previously set out, the Tribunal is satisfied that this was not correct. More fundamentally, in completing her notice of appeal, the Claimant had chosen to enlarge the basis of her complaint. In addition to raising matters of victimisation, the Claimant cited the requirement to undergo a fitness test as being evidence of ‘ageism’. She also made the point that she considered herself a ‘returning officer’. It is implicit to this assertion (as it was in the course of the Claimant’s evidence before the Tribunal) that she did not regard herself to be a new recruit to whom the recruitment test would otherwise apply. The Tribunal does not accept this proposition. The terms of the contract issued to and received by the Claimant were clear. They required completion of a fitness test on recruitment. The Claimant had been out of the service for in excess of 18 years. In the view of the Tribunal, the Claimant understood that—at the time of such recruitment— the Respondent operated fitness assessments and she would be required to participate in them. The fact that this was unwelcome is a different matter;

6.40 The grievance appeal outcome was communicated to the Claimant on 7 May 2024. The Claimant had remained on sickness absence. She was notified of reduction to half pay by letter of 9 May 2025;

6.41 In the meanwhile, and by March 2024, the Respondent had invited the Claimant’s agreement to a further Occupational Health referral with the purpose of facilitating support for participation in the RAFT. The Claimant consented to this process [p278]. The Occupational Health report is dated 16 April 2024 [p281]. It refers to the Claimant’s mental health, her dispute regarding the need to undertake the RAFT test ‘in any form’. The author expressed the view that the Claimant was ‘fit for work’ subject to advice. The advice was confined to the recommendation of a risk assessment. The author expressed the view that the issues in the case were ‘not primarily medical’ . The RAFT was endorsed as a reasonable adjustment;

6.42 A further Occupational Health report was provided to the Respondent dated 10 May 2024 [p306]. At that time, the Claimant was absent from work by reason of ‘depression’. Following the conduct of unparticularised tests, the author of the Report assessed the Claimant as experiencing “severe symptoms of Anxiety and Depression which in themselves would be a barrier to her returning to work in any capacity at the present time…” The author opined that the Claimant was unfit for work. There was no mention of any menopausal symptoms. The clear burden of the Report was the Claimant’s mental welfare;

6.43 By email transmitted on 12 May 2024, the Claimant informed Mr. Connelly of the obligation to record menopause related absences separately [p308];

6.44 By letter of 30 May 2024, the Claimant was informed that the issue of return to work had been escalated to senior management [p313]. This prompted the direct involvement of Mr. Whitehead;

6.45 Despite her objection to participation in the fitness test, the Claimant was in fact inviting proposals from the relevant training staff concerning the form of the assessments and the adjustments which might be made. On 19 June 2024, the Claimant queried the possibility of another adjustment: “due to my age and gender e.g. treadmill at 5 km/hr. Doesn’t so like much of a difference but really is…” [p315].

6.46 In the view of the Tribunal, the Claimant was by this stage already formulating a strategy. It did not include undertaking or otherwise participating in any form of fitness test. The Claimant was informed that age and gender were not reasons for being tested on the RAFT [p314];

6.47 An absence management meeting was held on 19 June 2024 [p320]. During that meeting, a number of options were discussed. The Claimant confirmed that she was not prepared to accept a re-grading to OSG and would not participate in the fitness test or avail herself of the preparation or support offered by gym staff. It was made clear that other options —including ill health retirement— would be explored. Transcripts of the meeting were provided. There was no challenge made before the Tribunal to their accuracy. The transcript confirms the Claimant’s continuing absence from work by reason of depression [p325] and her unwillingness to participate in the fitness test [p331 and 333]. The discussion also confirmed the Claimant’s intention to initiate a legal challenge [p332]. It is clear from the transcript that the offer of an OSG role would involve a commitment by the Respondent to look for other positions across the region and not confined to HMP New Hall [p333];

6.48 As a result of the meeting of 19 June 2024, a further Occupational Health referral was made. The report is dated 27 June 2024 [p317]. The purpose of the assessment was the potential for ill-health retirement review. The author reported that the Claimant’s return to work was ‘unknown’ but recounts the Claimant’s perception that she was fit for her full duties. A recommendation was made to the effect that the Claimant was given time to prepare for the fitness test, provision of a fitness plan, and management in line with fitness policy requirements. The Report concluded that the Claimant would not be eligible for ill-health retirement. The Tribunal is satisfied that the recommendations proposed by this report had already been pursued by the Respondent. Unlike the previous Occupational Health reports, this report had been compiled by an occupational health physician as distinct from an advisor;

6.49 By letter dated 8 July 2024, and in line with the matters discussed in the course of the meeting of 19 June 2024, the Claimant was invited to participate in a further management absence meeting [p345]. The meeting was held on 10 July 2024. As with previous meetings, an audio recording was made and a transcript provided. No challenge has been made to the accuracy of the transcript [p349]. In the course of the meeting, the Claimant declared her preparedness to undertake the fitness test [p351] if it could be further modified to suit the Claimant’s gender and age. The Claimant also repeated her position that she would not have taken the post had she been made aware of the need for a fitness test. She explained this on the basis that she was —in her view— unable to complete such a test [p355]. Later in the meeting, the Claimant added: “No. I’m quite clear that I don’t think I want to train him [sic] for seven months and that ai [sic] could pass it another eight weeks, with or without the help of Glenn or somebody else in this prison… I don’t believe that given the amount of time that I can get to that level required the 5.4. on the beep test or the RAFT test, I’ll take the money…” [p360-361]

6.50 In the same meeting, the Claimant expressed the view that she did not have the skills to undertake the OSG role in administration [p358];

6.51 In the meantime, Mr. Tune (and specialist training staff) had been formulating an adjusted test and training programme for the Claimant. They included a further deferral or lead up period of 6 weeks [p369]. As at 16 July 2024, Mr. Tune was proceeding upon the basis that the Claimant was preparing to undertake the test, that the scheduling of the test was in line with the Occupational Health recommendation and that the Claimant had communicated a wish to complete the test as soon as possible [p369]. These supportive measures had been underway in one form or another since January 2024 (at the latest). The Claimant was informed of the proposed scheduling of the RAFT to be held at Rugby by email of 17 July 2024 [p374];

6.52 Unbeknown to Mr. Tune, the then Governor of HMP New Hall was also corresponding with the Claimant on 17 July 2024 [p382]. The letter detailed options to facilitate the Claimant’s return to work. In the Tribunal’s view the letter accurately captures the content of the previous meeting and provided the Claimant with a further opportunity to consider participation in additional training for alternative roles. This was an opportunity which the Claimant welcomed;

6.53 The Claimant participated in a further Occupational Health assessment. The Report is dated 20 August 2024 [p388]. It had been compiled adopting the same template as the earlier report; including an annotation to the effect that the Report has been discussed with the Claimant who had provided consent for its release to the Respondent. In addressing the ‘Current Health Issues’ the Report records that the Claimant wishes to undertake the ‘standard fitness test’ and adds: “She reports no health conditions that would effect her fitness to complete the standard fitness test and does not identify any need for adjustments or additional support at work…”

6.54 The Report continues: “Based on today’s assessment and my clinical opinion Ms. Tilford is fit for work with no restrictions and is fit to complete the standard fitness test with no adjustments… Current Outlook I was unable to identify any health issues or concerns that are impacting or are likely to impact Ms. Tilford’s ability to complete the standard fitness test. She is aware to report any changes…”

6.55 These opinions are repeated in response to direct questions posed by management [p389]. As a consequence of this report, the Respondent scheduled a test for 29 August 2024 at Leeds. The Claimant was informed of this position by email [p386]. During the course of evidence before the Tribunal, it was apparent that the Claimant did not agree with the terms of this Report. It was the Claimant’s position —as presented to the Respondent’s witnesses in cross-examination— that the Report was clearly erroneous and ‘at odds’ with the previous reports. The Respondent’s witnesses confirmed their own recollection that the Claimant did not seek to challenge the contents of the Report or its accuracy. As previously noted, there had been one prior occasion upon which the Claimant considered the contents of a Report to be inaccurate. On that occasion, she raised her challenge swiftly with her line manager. The Tribunal is satisfied that the Claimant was aware of her right to challenge or correct errors where such errors were being made. The Tribunal finds that the Claimant was provided with a copy of this Report by email of 20 August 2024. At that time, Mr. Connelly specifically sought the Claimant’s agreement for the sharing of that report with Mr. Tune in order to facilitate the booking of the test. In doing so, Mr. Connelly drew the Claimant’s attention to the proposed use of the standard fitness test. The Claimant responded to that request by email [p385]. In doing so, she consented to the release of the report. She made no challenge as to its contents or the recommendation made. There was no suggestion to the effect that the Report did not correspond with the contents of the assessment in which the Claimant had participated. During the hearing, it was suggested to the witnesses for the Respondent that the Occupational Health reports were the product of information provided by the Claimant. The Tribunal has previously noted the fact that the assessments were conducted telephonically and did not involve access to or provision of medical records, sickness absence records or other underlying material. By way of illustration, the Claimant did not at any stage provide any direct correspondence from her GP to the Respondent or occupational health. In these circumstances, the Tribunal finds that the contents of the occupational health report were fundamentally dependent upon the narrative provided by the Claimant in the course of the telephonic assessments. As such, the Tribunal is satisfied that the report of 20 August 2024 was informed by (and reflected) the Claimant’s presentation and participation at that time. The Tribunal rejects the suggestion that its contents were inaccurate and/or that the Respondent ought to have recognised the Report as the product of error. In the Tribunal’s view, through the provision of her consent, the Claimant was affirming her acceptance of the accuracy of the Report and its contents and its use by the Respondent in its engagement with her;

6.56 By letter dated 26 August 2024, the Claimant was issued with a formal outcome of a fitness attendance meeting. It confirmed the imposition of a Stage 2 notification [p391]. The Claimant chose not to appeal that decision;

6.57 The Claimant participated in the scheduled fitness test on 29 August 2024. She was not successful; having failed to reach 5.4 on the bleep test [p393]. She was provided with information regarding the scheduling of a third and final attempt. This prompted the Claimant to confirm that she had ‘no intention of trying’ the test again. She added: “5.4 is beyond reach for most women of my age…” [p394].

6.58 The Governor responded with the proposal of a re-grade. She confirmed there were no Band 3 roles at HMP New Hall [p399]. The Claimant confirmed that she wished to proceed to termination of her role and compensation [p401]. She observed: “Unless the matters of mismanagement and unreasonable fitness test could be resolved, I will not be returning to New Hall.”

6.59 In the course of a further email of 29 August 2024 [p403] the Claimant confirmed that she would not be participating in any further meetings and declared herself to be “fit and able to carry out my duties…” [p403]. She requested that the Respondent proceed with the inefficiency policy and provide compensation and her P45 [p405]. This was confirmed in a conversation with HR the following day [p406]. Notwithstanding the terms of this correspondence, the Respondent invited the Claimant to confirm her position following a cooling down period. The proposals included the potential to identify OSG Band 3 roles away from HMP New Hall [p410]. In response to that invitation, the Claimant proposed the completion of the RAFT test or migration to a Band 3 post. After expressing the view of her legal advisors, the Claimant repeated her own perception that she was ‘fit and able’ and further that she considered the fitness test did not in any case reflect capability [p412- 413]. In a further email of the same date, the Claimant indicated that she could travel to Wakefield but would require a full-time role [p418];

6.60 The formal attendance meeting was held on 4 September 2024. The Claimant attended that meeting supported by her union representative. As at that date, the Claimant had been on restricted duties for 10 months. In the course of the meeting, the Claimant referred to her age, menopause, and, notwithstanding the Report of 20 August 2024, indicated there was no prospect of completion of the fitness test. The Respondent made a number of offers to the Claimant in the course of that meeting. These included a phased return to work with training support and allocation to OSG Band 2 with pay protection for 2 years [p422-3]. According to the letter of 9 September 2024, the Claimant opted for the appointment to OSG Grade 2 with pay protection. Other adjustments were adopted to ameliorate the financial impact of these changes;

6.61 By email of 9 September 2024 (i.e. 5 days after the adoption of the proposal) the Claimant confirmed that she had no wish to undertake the OSG Role [p429]. In response to that communication, the Claimant was issued with formal confirmation of the termination of her employment: [p448]. The reason for the termination of employment is recorded as the Claimant’s inability to return to full duties within a reasonable timescale. The Claimant’s last day of service was 16 September 2024. No criticism is made of the process by which this decision was reached or the decision itself;

6.62 Throughout its engagement with the Claimant, the Respondent —and its managers— have made consistent attempts to obtain appropriate Occupational Health advice and, thereafter, act upon the advice received. Whilst it was suggested in the course of the Claimant’s evidence that Occupational Health advice had not been acted upon, when called upon to provide an example, the Claimant was unable to do so. In the view of the Tribunal, the documentation confirms the contrary position. Advice was sought, and when provided, utilised to inform the Respondent’s engagement with and support of the Claimant;

6.63 The Respondent had endeavoured to provide the Claimant with support throughout the period from June 2022 to September 2024. Insofar as that support brought the Claimant into conflict with employment related policies and procedures, those matters were not within the control of local management. Insofar as it is necessary to do so, the Tribunal finds that there was not at any time any antagonism on the part of the Respondent’s managers towards the Claimant. She was not singled out for mistreatment. The response of the local managers was at all times appropriate and proportionate. The Tribunal has been provided with a significant volume of employment related policies. It has not been suggested that the Respondent acted in breach of any of the procedures which can be identified within them. Where the Claimant raised concerns, they were responded to. Where the Claimant challenged decisions and/or sought to suggest that her own position ought to be addressed differently, these were addressed and indeed, the Claimant was encouraged to pursue those matters with the assistance of the Prison Officers’ Association. Similarly, the documentation confirms that repeated efforts were made by the Respondent’s local management to support the Claimant by other practical means; including the provision of repeated opportunities for the Claimant to reflect upon her own position and make informed choices regarding her employment. Contrary to the suggestion made by the Claimant in cross-examination, these were not the behaviours of an organisation seeking to undermine the Claimant or remove her from the organisation;

6.64 The Respondent had adopted a “Supporting Menopause at Work” toolkit [p535]. This has been in use from October 2019. The document identifies the potential age range of those likely to be affected by menopausal symptoms, namely: 45-55. However, it is acknowledged that “Every experience will be different…” The variable nature of menopausal symptoms is acknowledged; as is the potential for such symptoms to impact upon an individual’s performance. A self-identification list is provided in Annex A [p546]. The point is made that it is not the role of local managers to assume the knowledge of a healthcare professional [p542]. There is a clear exhortation to keep in mind that every individual’s experience is unique;

6.65 The Respondent has also produced a Menopause at Work Policy [p643].Issued in April 2022, the Policy draws upon many of the themes identified within the Toolkit. There is a recognition that menopausal symptoms have the potential to impact upon a person’s performance and abilities [p657]. It signposts the fact that – in certain cases— the impact of the symptoms may be considered to amount to the protected characteristic of disability within the meaning of the Equality Act 2010. In relation to the impact upon employee fitness testing, it is recognised that occupational health advice may be required and, in some cases, GP referral [p658];

6.66 Similar observations are to be found in the Respondent’s policy on workplace adjustments and the benefits of occupational health advice [p564];

6.67 At the time of the Claimant’s temporary engagement, the Respondent operated two discrete fitness testing regimes. The first related to the assessment of an individual’s fitness following recruitment. The second has been referred to as the annual fitness test; a regime in which officers were required to demonstrate levels of fitness upon an annual cycle. Before the Tribunal, it was common ground that whilst directed to different cohorts, the substance of the tests was the same. The purpose of each was to assess and determine the candidate’s aerobic output. This was achieved by a number of means, including the so-called ‘bleep’ test; a test which required the candidate to run between fixed pre-determined points against varying time constraints communicated to the candidate acoustically. It was the unchallenged evidence before the Tribunal (which the Tribunal accepts) that the test had been compiled and authenticated with detailed independent scientific input;

6.68 The Respondent operated a Staff Fitness Testing Policy [p633]. As the preamble to the policy makes clear, its purpose is to ensure that staff are physically fit for the role to which they are appointed. This is declared to be consistent with the Respondent’s duty of care. The policy confirms that the test is itself intended to assess the physical capability of the candidate by reference to a ‘grip test’, ‘shield hold test’, ‘multi-stage fitness test’ and speed and agility. It is the third component (i.e. multi-stage) which has been referred to in these proceedings as the “bleep test” and requires the candidate to demonstrate a fitness level of 5.4 [p637]. The detail of this component is explained [p638]: “The test involves continuous running between two lines 15m apart in time to recorded beeps… The speed at the start is slow. The subject continues running between the two lines, turning when signalled by the recorded beeps. A sound indicates an increase in speed. And the beeps will be closer together. This continues at each level. If the line is not reached in time, the subject must run to the line and turn and try to catch up with the pace within 2 more beeps…”

6.69 It is clear from the terms of the Staff Fitness Test Policy itself that unsuccessful participation in the standard test is intended to trigger management support, with the opportunity for occupational health referral. Where the number of attempts has been exceeded, it is intended that further management procedures are activated. The procedure is determined by the existence or otherwise of health-related factors;

6.70 The detail of the RAFT is also considered in the Staff Fitness Test Policy [p640]. It confirms that the RAFT is only available following occupational health involvement. According to the terms of the Policy, the RAFT incorporates the Chester Treadmill Police Walking Test in substitution for the bleep test; thereby ameliorating the demands and exertions required by the bleep test itself;

6.71 It is expressly recorded that the fitness test is reviewed in order to ensure that it remains ‘relevant and fit for purpose’. The policy makes clear that the attainment of the necessary fitness standard had been a feature of prison officer employment since 2001 [p635]. It is further recorded that the tests are reasonable and appropriate having regard to inter alia the Equality Act 2010 and the Health & Safety at Work legislation;

6.72 In June 2014, the Ministry of Justice responded to a Freedom of Information Request. Whilst the Tribunal has not been provided with the Request, the Claimant relies upon the response [p661]. The document confirms that the request was concerned with the implications of age upon the success or failure rates of those who were required to undertake the fitness test. Two age ranges were identified (i.e. 20-30 and 31-40). The results relate to the tests undertaken in the period 2011-2014 inclusive. The figures suggest that those within the age group 40-49 had a higher failure rate; with the failure rate being higher for women than men across each of the age groups identified. The document does not detail the scale of the male/female cohorts;

6.73 The Tribunal was also provided with a document Analytical Summary 2018 Prison Officer Fitness Testing [p663]. This was directed to the annual fitness test results. The findings were said to support the retention of the fitness test itself providing ‘an adequate benchmark’ of fitness for the prison officer role. On 14 March 2022, Justin Madders MP posed a question on the floor of the House of Commons concerning the equality of the fitness test. The response [p666] provided indicated that in the 6-month period ended February 2022, 202 male officers failed the fitness test at their first attempt. This compared to 265 female officers. In relation to the second attempt, the numbers were 10 and 25 respectively. The reply indicates that there were (in relation to those cohorts) no failures at the time of the 3rd test. However, the material also indicates that those figures relate to a total of 11,170 male officers and 3,318 female officers (i.e. of the tested cohort 77% and 23% respectively);

6.74 By July 2023, the suitability of the annual fitness test for bands 3-5 officers had been the subject of a review. The Tribunal was informed during submission (and accepts) that the authors of the Report hold managerial positions and do not profess any scientific expertise. The resultant Report [p670] made a number of recommendations. These included the replacement of the annual fitness test with a “scenario based” assessment. According to the Report, the testing model indicated that there was a disproportionately higher failure rate (at first attempt) for women [p673]. The Report recognised the need for an entry test and conceded the retention of continued testing for those occupying specialist roles [p675]. The Review’s point of reference included the Drake Hall Pilot [p687]. The authors conceded that this was not an official test but involved ‘scenario based’ assessment amongst 40 volunteers. The test is said to comprise 9 components. Contrary to what might be expected, there are no accompanying scenarios. Instead, the was reference to specific exercises. According to the Respondent’s witnesses, these elements could not be readily reconciled with the physicality of the role of a Grade 3 officer. The Tribunal accepts this evidence as accurate. Whatever else may be said, the proposed substitution of the annual testing arrangements may —at best— be considered a work in progress. This is acknowledged in the review itself: [p701];

6.75 The Claimant relies upon Appendix 3 of the Review [p706]. This is said to indicate disadvantage by age group and gender. The probative value of these details is addressed later in this judgment. Counsel for the Respondent did not otherwise seek to challenge the accuracy of the data itself. Preliminary Observation

[7]Before addressing the submissions made by the parties, it is necessary to address two additional aspects of the evidence. The first concerns the quality of the “medical” information which has been provided to the Tribunal. The Tribunal recognises that the Claimant does not within these proceedings rely upon the protected characteristic of disability. Despite this, it is an important aspect of the Claimant’s claims that she was —at the material time— experiencing menopausal symptoms which impacted upon her ability to satisfy the fitness requirements and standards operated by the Respondent. The Tribunal notes that the attempted resolution of this issue spanned over 2 years. Throughout that period, there were sickness related absences and accompanying fitness certificates. The Respondent proceeded upon the basis that the descriptions provided by the Claimant were accurate. This position was replicated by the Occupational Health advisors. The Occupational Health reports make anecdotal reference to HRT medication and its side effects. Specific symptoms said to be attributable to the menopause are also cited. No further detail is given. Nor is any meaningful detail provided concerning the treatment plan formulated by the Claimant’s GP. In the Tribunal’s view, this is striking; especially where —as here— there is (save for the Report of August 2024) a consistent expectation that any challenges facing the Claimant would be addressed by revised medication.

[8]Additionally, despite the fact that the bundle extends to in excess of 747 pages, no material has been provided by the Claimant to detail her own medical position. This has presented the Tribunal with a number of evidential challenges concerning the impact of menopausal symptoms upon the Claimant at the material time. For the reasons set out above, it has been required to proceed upon the basis that the Occupational Health reports accurately capture the source and character of the Claimant’s presentation. Concessions

[9]Within the course of its Grounds of Response, the Respondent has conceded that it applied a number of PCPs to the Claimant [p47 §32]. In relation to the Recruitment Test, it was further conceded that this requirement put the Claimant and ‘persons sharing the protected characteristic of sex’ at a particular disadvantage [p48 §34] on the ground that the test was more difficult to pass for women. No concession is made in relation to the protected characteristic of age.

[10]At the Preliminary Hearing in May 2025, Judge James identified the issues requiring determination [p59]. However, at the outset of the hearing, Ms Ibbotson on behalf of the Claimant confirmed:(i) the claim was in reality about the Recruitment Test only; and

(ii) whilst the PCPs had been expressed in a number of forms, the claim rested on one matter: the requirement to pass the Recruitment Test in order for the Claimant to remain in her role. The evidence led before the Tribunal (and the submissions made) have been crafted accordingly.

[11]Additionally, whilst the List of Issues anticipated the need to address the Tribunal in relation to time limits, Mr. McLean confirmed that no issue of time limits was to be taken. Neither parties made submissions on this issue. Submissions

[12]On behalf of the Claimant, Ms Ibbotson filed a written closing submission and supplemented it with oral submissions. The Tribunal means no discourtesy in its failure to recite those submissions in detail. In the light of those carefully crafted submissions, the Claimant’s position distils to the following:12.1 The application of the PCP is conceded;

12.2 The PCP placed persons of age and sex at a material disadvantage. In this respect, reliance is placed upon the statistical material before the Tribunal and the Review document published in 2023. The Claimant also cites in support the withdrawal of the annual fitness test;

12.3 The PCP -as applied to the Claimant- did have the effect of putting her at a disadvantage; as demonstrated by her inability to complete and/or pass the Recruitment Test and/or the diminution in her mental welfare as a result and the removal of the Claimant from her Grade 3 role; and

12.4 The Respondent cannot demonstrate that the PCP was justified. In this respect, particular emphasis was placed upon the withdrawal of the annual fitness test, and what the Claimant contends was the lack of correlation between the fitness test itself and the day-to-day operational duties required of the Grade 3 Prison Officer role. Additionally, it is said that the Respondent has failed to consider and address the non-discriminatory option: the adoption of scenario-based assessment. It is said that the Drake Hall Pilot demonstrates the viability of this option and the Respondent has failed to act upon it.

[13]In relation to the harassment claim, Ms Ibbotson emphasised that this is a discrete claim and is not dependent upon the viability of the section 19 claim. She submitted that the position was clear: the Claimant would not have been requested to undertake the test but for her menopausal symptoms and/or her age. It is said that the request was presented repeatedly over the two period in circumstances in which it was not justified. In short: these requests had the ‘effect’ of violating the Claimant’s dignity and/or creating a degrading etc environment for the Claimant.

[14]On behalf of the Respondent, it was submitted that the claims were not well founded. Mr. McLean cautioned the Tribunal regarding potential reliance upon statistical material which could not be considered recent. He maintained that there was a contractual obligation upon the Claimant to complete the Recruitment Test and every effort was made to enable her to do so.

[15]Having conceded the PCP, the primary burden of Mr. McLean’s submission was directed to proportionality. He reminded the Tribunal of the demands of the Claimant’s role, the evidence of the Respondent’s witnesses concerning the demands of the Grade 3 Officer’s duties, the efficacy of the existing test regime and the fact that candidates were able to meet the relevant threshold of fitness by their third attempt. He invited the Tribunal to conclude that the various legitimate aims previously identified [p61] were clearly served and achieved by the Recruitment Test. He reminded the Tribunal that —as at the date of the assessment in August 2024—the Claimant had affirmed her ability to undertake the standard test (i.e not the RAFT) and was fit and able to do so.

[16]In relation to the harassment claim, he invited the Tribunal to conclude that the Respondent’s managers had demonstrated consistent support for the Claimant and, to that end, had adopted extensive efforts to support the Claimant in discharging a contractual obligation to which she was subject. However, he submitted, the Claimant had “set her face” against the requirements of the test. By contrast, the Respondent had directed its efforts to providing supportive arrangements to address her concerns. Those concerns could not be allayed; hence the Claimant chose the route of departure from the service.

[17]Ms. Ibbotson cited a number of judicial authorities which, in her submission, were intended to aid and direct the Tribunal’s determination of the claims, namely: Essop v Home Office (UK Border Agency)

[2017] UKSC 27

R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

Hardy & Hansons plc v Lax

[2005] ICR 1565

Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

Advocate General for Scotland v Brown and anor

[2024] EAT 189

[18]No authorities were cited by the Respondent. The Law Indirect Discrimination

[19]Section 19 of the Equality Act 2010 provides: “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[20]The PCP relied upon in this instance, as expressed on behalf of the Claimant, is the requirement to participate in and satisfactory complete the recruitment fitness test. As confirmed by the Supreme Court in the case of Essop v Home Office, there must be a causal link between the PCP and the particular disadvantage suffered by the group and the individual claimant. As expressed by Baroness Hale, indirect discrimination is concerned with ‘hidden barriers’. As the Supreme Court confirmed the collective disadvantage need not be experienced by every member of the group. Nor is there any requirement on the part of the Claimant to show why a particular disadvantage is experienced. It is enough that that it is. In Essop Baroness Hale summarised the position as follows: “27 A fourth salient feature is that there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage…

[28]A fifth salient feature is that it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence… Statistical evidence is designed to show correlations between particular variables and particular outcomes and to assess the significance of those correlations. But a correlation is not the same as a causal link.”21. In the context of specific qualification tests or assessments, the point has been made that it may be appropriate to draw a distinction between the claimant who attempts and fails and the claimant who makes no attempt at all. In its decision in Essop recognised that such a distinction may—on the facts of a given case— be validly drawn if relied upon to demonstrate that the relevant PCP did not disadvantage the claimant at all.

22. Where these features are present, consideration will need to be given to the issue of justification. In Essop, Baroness Hale gave the following guidance: “29. A final salient feature is that it is always open to the respondent to show that his PCP is justified - in other words, that there is a good reason for the particular height requirement, or the particular chess grade, or the particular CSA test. Some reluctance to reach this point can be detected in the cases, yet there should not be. There is no finding of unlawful discrimination until all four elements of the definition are met. The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question - fitness levels in fire-fighters or policemen spring to mind. But, as Langstaff J pointed out in the EAT in Essop , a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result.” [emphasis added]

23. As Baroness Hale made clear, the burden of justifying the PCP rests with the Respondent. The Statutory Code of Code underscores [§4.26] the need for direct evidence. However, such evidence may take the form of reasoned and rationale judgment. Generalities — particularly when founded upon assumption— will not be sufficient.

24. Proportionality is central to the assessment of justification. As noted by the Supreme Court in Homer: “To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably necessary) in order to do so."

25. As both the authorities and the Statutory Code confirm, proportionality has its origins in community legislation. It requires consideration of appropriateness and, inter alia, whether the legitimate aim relied upon could be achieved by ‘less discriminatory’ means: [Statutory Code of Practice §4.31].

26. Furthermore, as submitted by Ms Ibbotson, there must be a correlation between the means adopted by the Respondent and the attainment of the aim to which the measure is directed: R (Elias) v Secretary of State for Defence

[2006] EWCA Civ 1293

27. In seeking to resolve these issues, it is necessary for the Tribunal to look to the granular detail and conduct a balancing exercise as between the authenticated needs of the Respondent’s undertaking and the discriminatory effects of the PCP: Hardy & Hanson plc v Lax

[2005] ICR 1565

: “The principle of proportionality requires the tribunal to take account of the reasonable needs of the business, but at the end of the day it was for the tribunal to make its own judgment as to whether the rule imposed was 'reasonably necessary'. It is not enough that the view is one which a reasonable employer could take.” 28. The balancing exercise will, necessarily, involve consideration as to whether there were non-discriminatory measures available to the Respondent: Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 14

[at 25]. If the Tribunal is of the view that such an alternative was available, it must identify it and do so with precision: Advocate General for Scotland v Brown and Anor

[2024] EAT 189

[at 51-53] Harassment

[29]Section 26 of the Equality Act 2010 provides: “(1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (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.”

[30]For this purpose, the Claimant relies upon the protected characteristics of age and sex.

[31]No authorities were cited to the Tribunal in relation to this claim. In the course of her submissions, Ms. Ibbotson emphasised that it was the Claimant’s case that the unwanted conduct (i.e. the participation in the recruitment test in conformity with the PCP) related to the protected characteristics of age and/or gender and had the effect of creating the proscribed conditions identified in section 1(b) (i) or (ii).

[32]The Tribunal has reminded itself that harassment may arise irrespective of the motivation or intentions of the employer and that this is reflected in the language of the statutory provision. Similarly, the fact that the Claimant perceives the conduct in question to relate to the protected characteristic whilst a consideration is not determinative. It remains clear, however, that the conduct said constitute harassment must be ‘related to’ the protected characteristic relied upon. This calls for a broader assessment and —it has been said— is likely to be informed by consideration of the deliberative processes of the employer. The resolution calls for a fact-sensitive assessment by the Tribunal.

[33]If and to the extent that the Tribunal concludes that the conduct complained of is both related to the protected characteristic and unwanted, it must consider its purpose or effect. Ms. Ibbotson helpfully clarified that the claim in the present case is advanced by reference to the effect of the conduct itself. In engaging with this aspect of the statutory test, the Tribunal must view assess the conduct from the vantage point of the Claimant (i.e. the subjective perception). It must go on to consider that perception having regard to an objective assessment of the same conduct in order to resolve the reasonableness or otherwise of the Claimant’s perception. Each must be informed by all of the circumstances of the case. Discussions and Conclusions Indirect Discrimination

[34]The Tribunal has reminded itself that the Claimant relies upon the protected characteristics of sex and age.

[35]At the time of temporary re-deployment, in August 2022, the Claimant was aged 57. For the previous 18 years she had worked as a counsellor. Throughout the course of the hearing, the Claimant relied upon the age of 40-59 as the relevant group with which she identified.

[36]It is accepted that the Respondent applied a PCP, namely the requirement to pass a Recruitment Test. As previously noted, it is conceded that the PCP placed women at a particular disadvantage. No concession is made in relation to age generally.

[37]The Tribunal has been referred to a number of sources of information. The figures provided in response to the Freedom of Information Act request in 2014 [p661] indicate a potential detriment to females undertaking the assessment; particularly in the age range 40-59. By contrast, the figures provided from Hansard [p666] offer no indication of age; being focused entirely by reference to gender. The material relied upon for the purposes of the 2023 Review [p706] is directed to the annual fitness test (both standard and RAFT). It suggests that the failure rate (and thus the challenge facing the candidate) is most acutely experienced at the first stage of the assessment (i.e. first attempt). In the period 2019-2020, the highest failure rate (32.8% of the total cohort) was in the age group 40-49. In the RAFT test, the higher rate in the age range 50-59.

[38]In the view of the Tribunal, those figures do support the proposition that those in the older age range may find it necessary to undertake a second or third attempt at the relevant fitness test before attaining the standard of fitness required. The data indicates that by that stage, the prospect of support, focused training and timetabling of the subsequent attempts go some way to ameliorating the disadvantage to which women or those over the age of 40 would otherwise be exposed.

[39]However, those percentage figures are directed to an overall cohort which is materially different to that which to which the Claimant belonged. For the purposes of this test, the claimant was a new recruit and was being required to undertake the recruitment test. The statistics provided are directed to the annual fitness test. They were —as at the date of the hearing before the Tribunal— beyond several years old. No statistical evidence has been provided in relation to the recruitment test itself. As such, this material does not in and of itself enable provide the Tribunal with a sufficient evidential basis to conclude that the protected characteristic of age (as distinct from gender) exposed individuals to detriment on account of age.

[40]The Tribunal has borne in mind that there is commonality of physical demands to which the candidate is exposed in both the recruitment and annual fitness tests. However, whilst the gender differential is clear, the Tribunal has been unable to proceed by reference to this information alone on the alternative ground of age. Particular Disadvantage

[41]However, in the event that the Tribunal is wrong in that view, it has considered whether the PCP would put the Claimant at a disadvantage on the grounds of age or gender.

[42]The primary evidence relied upon for this purpose, is the suggestion that the Claimant was at the material time experiencing menopausal symptoms. The Tribunal repeats its earlier observation regarding the quality of the medical evidence with which it has been provided. This indicates that the first mention of menopausal symptoms occurred during March 2023 and was then repeated in September 2023 [p110/155]. During 2024, these references were replaced by citation of anxiety and depression. As identified by Mr. McLean, the consistent message from the occupational health advisors was to the effect that the Claimant was experiencing temporary difficulties which —it was anticipated— would be addressed by revision of her medication.

[43]Throughout the process which ensued, and prior to August 2024, the Claimant repeatedly asserted that she was fit to return to her substantive role. Other than the Claimant’s own perception that she was / would likely be unable to pass the relevant fitness test (as adopted by occupational health) there is no additional evidence to that effect. The Tribunal records its difficulty in reconciling the Claimant’s position regarding her professed inability to undertake or complete the Recruitment Test on the one hand, and her insistence that she could — notwithstanding the symptoms reported to occupational health— discharge her substantive role without difficulty on the other.

[44]On balance, the Tribunal has concluded that the PCP would put persons of the Claimant’s age group and gender at a particular disadvantage, including the Claimant. Justification

[45]The judicial guidance confirms that when engaging with issue of justification, the Tribunal is required to consider the detail of the PCP and the manner in which it is operated. Having done so, the Tribunal is satisfied that the policy documentation and the procedures adopted by the Respondent involved the following elements of the PCP in this case:45.1 A requirement that the candidate participate in a fitness test which was capable of assessing their aerobic output and thus eligibility to undertake their duties;

45.2 The recognition that the candidate would be afforded three opportunities to reach the necessary standard;

45.3 The provision of direct and focused support to enable the candidate to optimise their fitness levels as part of a supported guidance regime;

45.4 The scheduling of fitness tests at intervals which permitted the attainment of the required level of fitness by means of such support;

45.5 The potential for an adjusted test (i.e. the RAFT);

45.6 The expectation of occupational health input; and

45.7 The potential for redeployment of the candidate in the event of exceeding the three attempts provided.

[46]In the view of the Tribunal, to view the PCP as the simple application of a fitness test threshold would be contrary to the evidence and the terms of the policies which have not been the subject of challenge.

[47]The evidence confirms that there was and remained a direct correlation between the level of fitness adopted for assessment and the unpredictable and highly variable physical demands of the role of a Grade 3 Prison Officer. In forming this view, the Tribunal has borne in mind that the fitness tests were formulated with the assistance of independent external experts. The elements of the tests had been crafted to ensure that the tests results provided an objective and verifiable benchmark of general fitness considered necessary for the safe discharge of a Grade 3 officer’s duties. The Claimant did not challenge the provenance of the tests or the matters which had led to their design and specification. Instead, she contended that the elements of the test—and in particular the bleep-test— were artificial, unnecessary and enjoyed little or no correspondence to the demands of the Grade 3 Prison Officer Role. By contrast, the witnesses called on behalf of the Respondent gave detailed evidence of their own experience the needs for demonstration of fitness in line with the physical exertions to which a Grade 3 Prison Officer might be exposed. In the view of the Tribunal, there was a lack of realism in the Claimant’s position. The job description (which was not disputed) confirms the physicality of the role. In seeking to play down that aspect of duties, the Claimant seemingly made no allowance for the unpredictability of the duties, and extremes of behaviour (and circumstances) which she might be called upon to address. The Tribunal recognises that —in relation to the annual fitness test— there is continued consideration being given to the potential for scenario-based assessments. However, given the operational nature of the Prison Officer’s duties, it is not difficult to see why the formulation of such tests would require careful examination, independent scientific output and assessment, if the objectivity and reliability of the tests are to be preserved and their benefit retained. There is no evidence before the Tribunal to suggest that similar review was required in respect of the recruitment test. In the Tribunal’s view, it is possible to infer from this fact that there was a recognition on the part of stakeholders that the recruitment fitness test remained appropriate and relevant. This is not, of course, determinative of the issue of proportionality. It is nonetheless, one of the many factors to which the Tribunal is entitled to have regard.

[48]The Respondent’s witnesses confirmed the provenance and underlying purpose of the recruitment test. It was clear from that evidence that the deliberations of the Respondent had been conducted over an extended period of time and as evidenced, in the course of its associated policies, sought to reconcile the need for objective verifiable assessment on the one hand and insulating against the challenges which such assessment might pose to candidates. As previously noted, the result was a policy and practice in which the Recruitment Test was maintained as part of a regime. However, in contrast to the tests which might be encountered elsewhere, this did not involve a single opportunity of pass or fail. Rather, it deployed as part of series of arrangements by which the candidate would be supported toward a satisfactory outcome and provided with extended opportunities to demonstrate the fitness required. Upon the evidence before the Tribunal, including the statistics provided, this regime had proven largely effective in ensuring satisfactory completion of the Recruitment Test. Those measures, including the RAFT, were intended to secure —as far as possible— an equality of opportunity for candidates.

[49]In the course of its Response [p42] the Respondent relies upon 5 objectives as legitimate aims to which the PCP in this case was directed. These comprise:49.1 Ensuring fitness to discharge allocated duties;

49.2 Maintaining the safety and security of the prison environment;

49.3 Operational efficiency;

49.4 Contributing to the health and wellbeing of officers, and reduction of absenteeism and prospective injury; and

49.5 Contributing to the public interest that prisons are secure, safe and wellmanaged.

[50]In reality, in the presentation of her claim, the Claimant did not seek to challenge these as legitimate objectives or, for that matter, principles, which ought to inform the operational efficiency of the Prison Service. In the view of the Tribunal, the Claimant was right to adopt this position. Instead, the kernel of the Claimant’s submission was to the effect that the PCP was not necessary for the attainment of those aims and/or that those aims could have been achieved by less-discriminatory means. The former submission was predicated upon the basis of what was said to be a lack of correlation between the Recruitment Test and the duties required of a Grade 3 Officer. The latter placed reliance upon the Review exercise and the suspension of the annual fitness tests for serving officers.

[51]The suggestion that security and operational efficiency are irreplaceable requirements of the Prison Service ought not to be controversial. Experience has shown that the prison environment is a place in which both prisoners and those supervising them can be exposed to harm. Any doubt in this respect, is removed when regard is had to the fact that the Claimant was herself absent on two occasions, by reason of injuries sustained following interaction with prisoners. Such occasions can result in injury, sickness related absence and thus, in the view of Tribunal, additional operational demands upon the Prison Service. Upon the evidence before the Tribunal, it is clear that the Recruitment Test is intended to ensure that candidates have demonstrated a sufficient level of aerobic fitness to be able to safely participate in operational duties and do so in a manner which enables them to safeguard themselves and others from injury and harm. This should not be taken as suggesting that the Recruitment Test removes the risk of injury or harm altogether. It is, however, clear that it is an important evaluation tool by which the Respondent assesses both individual and institutional resilience.

[52]The Respondent’s published policies demonstrate both an awareness of and commitment to the objectives detailed in the course of the Ground of Response. They corroborate the purposes to which they are directed.

[53]Having regard to all of the circumstances of this case, the Tribunal is satisfied that each of the aims relied upon by the Respondent are evidentially supported. The Tribunal is further satisfied that the application of the PCP in the manner described above was a proportionate means of achieving those aims. In the course of her submissions, Ms. Ibbotson reminded the Tribunal of the need to consider whether lesser measures would have been sufficient to attain these objectives. The Tribunal is satisfied that the regime (as described earlier in this Judgment) was necessary and proportionate. There was no lesser means by which those aims could or should have been achieved.

[54]The fact that the Claimant and certain of her colleagues formulated a different view is nothing to the point. It was and remained a matter for the Respondent to assess the risk components with which Grade 3 officers might be confronted in their day-to-day activities. The Recruitment Test had been specifically designed with scientific assistance in order ensure an appropriate benchmark objectively formulated and tested. The Tribunal has not lost sight of the fact that the annual test has been suspended pending the design of substitute tests to assess continuing fitness for duty. However, the Review which prompted that decision endorses the retention of the Recruitment Test for those joining the service. In the view of the Tribunal, the Claimant fell squarely within that cohort. The suggestion made by the Claimant in her evidence that she had previously undertaken a fitness test some 18 years earlier in no way detracts from the need of the Respondent to carry out an assessment. It would be failing in its wider legal obligations and inconsistent with its legitimate aims if it had resolved to do so.

[55]In these circumstances, the Tribunal is satisfied that the claims of indirect discrimination fail and are dismissed. Harassment

[56]The harassment claim is predicated upon the basis that the Claimant was subjected to unwanted conduct in the period 18 August 2023 to 29 August 2024. This corresponds directly with the period during which the Claimant was being invited to participate in efforts to address the fitness requirement. The unwanted conduct relied upon is the ‘repeated’ requests of the Claimant to participate in the Recruitment Test and/or RAFT. In this respect, as noted by Judge James upon the Preliminary Hearing, the following was identified as the relevant conduct and acts of harassment:56.1 Informing the Claimant on 18 August 2023 that she was required to take a fitness test on 23 August 2023;

56.2 Requiring the Claimant to attend a fitness test on 26 October 2023;

56.3 On 6 February 2024, following the grievance outcome, maintaining the requirement of a fitness test;

56.4 A requirement to attempt a fitness test on 29 August 2024.

[57]The fitness requirement (and the participation of a test) was a condition of the Claimant’s employment. The Tribunal is satisfied that this was made clear to the Claimant at the time of her recruitment in July 2021.

[58]The Tribunal recognises that the Claimant was resistant to this request and until August 2024 communicated her resistance in a number of ways. However, during that same period, the Claimant communicated to her line managers (at various intervals and in different forms) a preparedness to avail herself of support and participate in some modified form of fitness test. It was not until August 2024 that the Claimant indicated her willingness and ability to participate in the standard test.

[59]With regard to the ‘conduct’ identified, the Tribunal recognises that the communication of a managerial instruction (even if well founded) may conceptually constitute an act of harassment. However, having carefully considered the Respondent’s interaction with the Claimant in the period 2022 to 2024, the Tribunal is satisfied that this was the outworking of a sustained commitment on the part of the Respondent to support the Claimant as a valued member of the Prisoner Officer Grade.

[60]More fundamentally, the efforts taken by the Respondent during this time were extended and varied. The Claimant from time to time expressed herself grateful for the measures which were being adopted and, in various ways, communicated her willingness to avail herself of the support being offered.

[61]As previously noted, the Tribunal must be satisfied that the conduct complained of related to the protected characteristic relied upon by the Claimant (i.e. age and gender). Even allowing for the more expansive interpretation to be given to that term, in the view of the Tribunal, it was not so related.

[62]Having considered all of the evidence, the Tribunal is satisfied that the proposed participation in the fitness test was not related to either the Claimant’s age or gender. It was related to her status as recent recruit to the Prison Service. The scheduling of fitness tests (and the Claimant’s intermittent participation in them) related to the Claimant’s recruitment status; having migrated to permanent contract in accordance with the contractual terms previously provided to her.

[63]In the event that the Tribunal is wrong in that view, it has considered the impact of the ‘conduct’ complained of. When properly considered, the evidence supports the conclusion that the Claimant was choosing to participate in a process, was being listened to, supported and otherwise accommodated insofar as the PCP permitted. Whilst the Tribunal can well understand the Claimant’s rationale for categorising this interaction negatively, this is not borne out by the extended opportunities (including the potential for regrading and alternative employment) which were offered to her. Ultimately, the decision to not take up those opportunities was the Claimant’s.

[64]As such, the Tribunal is unable to conclude that the conduct either unwelcome or that the Claimant was entitled to perceive them as intending or otherwise having the effect of creating one of the proscribed results. Whatever, the subjective view of the Claimant, in all of the circumstances of this case, the Tribunal is satisfied that when viewed objectively, it was not reasonable to view the ’conduct’ as having any of the proscribed effects.

[65]Accordingly, the claim for harassment is unsuccessful and is dismissed.