Mrs J Macpherson v Commissioners for HM Revenue and Customs: 8000065/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000065/2024

Venue Glasgow

Hearing 16, 17, 18 & 19 December 2024

Between

Mrs J MacphersonClaimant

Commissioners for HM Revenue and CustomsRespondent

Before

Employment Judge McCluskey

Mr G Woolfson (instructed by Solicitor) for claimant

Ms A Stobart (instructed by Counsel) for respondent

Date 17 January 2025

JUDGMENT

[1]The complaint of age discrimination, having been withdrawn, is dismissed.

[2]The complaint of breach of contract, having been withdrawn, is dismissed.

[3]The complaint of failure to comply with the duty to make reasonable adjustments relying on a provision criterion or practice of requiring employees to be at work (and not absent from work on sick leave) in order to be considered for the voluntary redundancy exit scheme, having been withdrawn, is dismissed.

[4]The complaint of unfair dismissal is not well founded and is dismissed.

[5]The complaint of constructive unfair dismissal is not well founded and is

[6]The complaints of discrimination arising from disability are not well founded and are dismissed.

[7]The remaining complaints of failure to comply with the duty to make reasonable adjustments are not well founded and are dismissed.

REASONS

[1]At the outset of the final hearing on 16 December 2024 the non-legal member Dr Singh disclosed that his spouse works for the respondent. As far as he was aware from the claim form and response, his spouse worked in a different area of the respondent’s business from that where the claimant worked. Dr Singh did not know the claimant. This was discussed with both legal representatives. We adjourned to allow both representatives to take instructions from their clients about how they wished to proceed. After the adjournment, both legal representatives confirmed to the Tribunal that their clients wished to proceed with the final hearing, with Dr Singh as a panel member.

[2]The claimant brings complaints of unfair dismissal (with an alternative complaint of unfair constructive dismissal), of discrimination arising from disability and of failures to comply with the duty to make reasonable adjustments (relying on two separate PCPs as set out in the agreed list of issues below). The claimant is disabled under section 6 Equality Act 2010 by reason of her cancer diagnosis.

[3]The complaint of failure to comply with the duty to make reasonable adjustments relying on a PCP of requiring employees to be at work (and not absent from work on sick leave) in order to be considered for the voluntary redundancy exit scheme, the complaint of age discrimination and the complaint of breach of contract, all having been withdrawn by the claimant at the outset of the final hearing, are dismissed.

[4]It was agreed that the Tribunal would determine liability only, with remedy to be determined at a separate hearing if needed.

[5]The agreed final list of issues on liability was provided by parties at the beginning of this final hearing. Both parties agreed at the beginning of the final hearing that these were the final list of issues for determination by the Tribunal.

[6]The claimant gave evidence on her own behalf. She also called her husband Mr Ian MacPherson. Ms Gayle McNally – the claimant’s line manager and Mr Paul Grey - Deputy Head of the respondent’s HR Expert Advice Service gave evidence on behalf of the respondent.

[7]There was a joint file of productions extending to 289 pages. The respondent added a further document to the file after the examination in chief of the claimant (pages 290 – 293). The claimant did not object to this being added. The claimant’s representative had an opportunity to ask the claimant about this document during re-examination.

[8]On the final morning of the hearing, after evidence of the claimant, her husband and of Ms McNally had been completed the claimant made an application to amend her claim form. The application was to add the words “and/or timeline” to the pleadings and accordingly the list of issues, on each occasion where the claimant had referenced “provide a definitive date”. This arose in her complaints of unfair constructive dismissal, of discrimination arising from disability and of failures to comply with the duty to make reasonable adjustments. The application to amend was opposed by the respondent.

[9]We considered the application to amend with reference to the principles in Selkent Bus Co Ltd v Moore

1996 ICR 836

, EAT, and considered the guidance in Vaughan v Modality Partnership

2021 ICR 535

, EAT.

[10]We concluded that the proposed amendment made entirely new factual allegations which changed the basis of the existing complaints. It was a substantial alteration, pleading a new cause of action.

[11]We considered the applicability of time limits. The new causes of action were out of time, the date of the allegations now been sought to be added having occurred on 19 June 2023.

[12]We considered the timing and manner of the application. We reminded ourselves that amendments can be made at any stage of the proceedings. The claimant’s submission was that the timing of the application was because Ms McNally had referred to a “timescale” for return in her evidence, in the context of what she and the claimant had discussed about the OH report. The documentary evidence in the file of productions included a contemporaneous file note by Ms McNally of her call with the claimant on 19 June 2023, which referred to their being “no clear indication of a timeline to return”. The claimant had been in receipt of this documentation since at least the date of disclosure of documents, some time before the final hearing had started. Ms McNally’s evidence was consistent with the file note. There had been a significant delay in making the application to amend.

[13]We considered the balance of injustice and hardship in allowing or refusing the amendment application. We considered any injustice or hardship to the claimant. Her own evidence and that of her husband is that she was asked to provide a definitive date for a return to work, not a timeline or a timescale. Each of her existing complaints, where relevant, include that allegation about a definitive date, and each of those complaints will be determined by us. The claimant is not losing her right to bring any of her existing complaints but would be deprived of the ability to bring new complaints if the amendment is refused. On the other hand, If the new complaints sought by amendment are allowed, the respondent would need to be given an opportunity for further cross examination of the claimant and her husband and for further evidence to be led from Ms McNally. This will lead to further cost and delay, and likely a continuation of the final hearing. There is injustice and hardship to the respondent if they are required, on the conclusion of evidence about the call on 19 June 2023, to respond to new complaints. Considering the injustice and hardship to both, we concluded that the balance fell in favour of the respondent. Accordingly, the amendment application was refused.

Issues

[14]For the complaint of unfair dismissal, the claimant relies on the assertion that there was a forced resignation.

[15]For the complaint of unfair constructive dismissal, the claimant relies on the following asserted conduct on the call on 19 June 2023:a. Ms McNally informed the claimant that she could either return to work, resign or be dismissed;

b. failing to await the biopsy result before presenting the options to the claimant of either return to work, resign or be dismissed and failing to await further occupational health advice or medical advice and have discussions with the claimant further to the existing occupational health advice;

c. requiring the claimant to provide a definitive date by which she could return to work;

d. failing to consider alternatives to an immediate or imminent return to full duties;

e. failing to consider or implement reasonable adjustments.

[16]For the complaint of discrimination arising from disability the claimant relies on the following acts of asserted unfavourable treatment:a. on the call on 19 June 2023 Ms McNally told the claimant she could either return to work, resign or be dismissed;

b. the respondent forced the claimant to resign, or the respondent dismissed the claimant (whether such dismissal is under section 95(1)(a) or section 95(1)(c) ERA.

[17]The “something” upon which the claimant relied upon as arising in consequence of her disability is: being unable on 19 June 2023 to return to work on full duties, provide a definitive date by which she could return to work and being absent from work on sick leave.

[18]For the failure to comply with the duty to make reasonable adjustments the claimant asserts two PCPs:a. the requirement that employees work their full duties;

b. the requirement that employees who are absent from work provide a definitive date by which they can return to work.

[19]For both PCPs the substantial disadvantage relied upon, in comparison with persons who do not have the claimant’s disability is: a. they are unlikely to be able to work their full duties or provide a definitive date by which they can return to work. Findings in fact

[20]The claimant commenced employment with the respondent on 7 January 2002. She submitted her resignation on 28 June 2023, providing notice. Her employment ended on 12 September 2023. At the time her employment ended the claimant was employed as an Administrative Officer.

[21]In August 2021 the claimant received a diagnosis of skin cancer. The claimant was absent from work on sick leave from around 23 August 2021 until around 26 January 2022.

[22]The claimant returned to work for a period from around 27 January 2022 to 17 March 2022. The claimant returned to work on a phased return. She was building up her hours each week, starting with working around one and half hours per day. During that time her line manager was Ms Gayle McNally. Ms McNally remained the claimant’s line manager until the end of the claimant’s employment.

[23]The claimant went on a second period of sick leave on around 18 March 2022. At the time of starting this absence she was still on a phased return to work and had not yet resumed her full hours of work each day. The claimant did not return to work in the period from 18 March 2022 until her employment ended on 12 September 2023.

[24]The claimant and Ms McNally had a good working relationship throughout the time that Ms McNally was the claimant’s line manager.

[25]The respondent obtained an Occupational Health report on the claimant on 13 September 2022. The report said “Mrs MacPherson is in the middle of her treatment for her skin cancer. In my opinion she remains unfit for work. It is difficult at present to predict any timescales for her recovery or her return to work, however, based on her prognosis so far, I doubt that she will be able to return to work within the next 2 to 3 months. I am at present unable to identify any adjustments that would facilitate a return to work”.

[26]The claimant remained absent from work on sick leave. Ms McNally kept in regular contact with the claimant, usually by telephone. She kept file notes summarising what had been discussed.

[27]During the claimant’s sickness absence Ms McNally was following the respondent’s Supporting Your Attendance policy (SYA policy) to direct her interactions with the claimant. Ms McNally was also taking advice from the respondent’s Expert Advice Service, which is an internal HR support service and from the HR Business Partner for her area. Ms McNally referred to the respondent’s SYA policy on various calls with the claimant.

[28]The respondent's SYA policy sets out the process to follow when an employee is absent from work, including on long term sickness absence. The claimant was on long term sickness absence. The SYA policy provides for an informal process which is conducted by the line manager and a formal process which is conducted by an independent decision manager.

[29]The SYA policy says “Our aim is always to support you to return to work, but in some circumstances the evidence available will lead your manager to decide that you’re unlikely to be able to return to effective and reliable attendance within a reasonable timescale, taking into account the definition of sustainable attendance. In these circumstances your manager will refer your case to an independent Decision Manager..... to consider whether your absence can continue to be supported”.

[30]On 8 March 2023 Ms McNally and the claimant spoke by telephone. Ms McNally referred to the SYA policy which she was following. Ms McNally explained how the SYA policy works and the options available. The claimant asked Ms McNally to write to her with these options. Ms McNally discussed dedicated home working (DHW) with the claimant on the call. The claimant told Ms McNally that dedicated home working was not something she wished to do.

[31]Ms McNally wrote to the claimant by letter dated 16 March 2023. She sent this letter to the claimant by email on the same date. On 20 March 2023 the claimant forwarded the email and attached letter to her trade union representative. Her trade union representative was assisting the claimant during her sickness absence. The claimant’s email said “Have forwarded an email sent to me from Gayle following a phone call from her when I asked for information /options she was giving me to be sent on by email. Would really like to speak to you regarding this”.

[32]The letter dated 16 March 2023 said “As discussed in our telephone call of Wednesday 8th March, please see the options available to you as per the guidance on Supporting your attendance. I did talk about these, but I understand that you weren’t able to take all the information in and requested it in writing”. The letter went on to set out the relevant parts of the SYA policy which were applicable to the claimant. The letter set out that where there is a concern that an employee’s time off pattern is unsustainable, the case will be referred to a decision manager. The decision manager will then meet with the employee to determine next steps.

[33]Ms McNally was the claimant’s line manager. She was not a decision manager in accordance with the SYA policy.

[34]On 19 April 2023 Ms McNally called the claimant. She explained the position with the SYA guidance and said the next step from the business point of view was to get an up to date OH report. The claimant agreed to getting another OH report.

[35]On 25 May 2023 Ms McNally called the claimant who confirmed she had attended the OH appointment. She told Ms McNally she was still very selfconscious and anxious about going out due to the wounds on her face.

[36]On 7 June 2023 Ms McNally called the claimant as she had not received the OH report. The claimant told Ms McNally that she had consented to the OH report being shared with the respondent.

[37]By 19 June 2023 Ms McNally was aware that the claimant was awaiting the outcome of a biopsy which had been classed by those treating the claimant as non-urgent.

[38]On 19 June 2023 Ms McNally called the claimant. She recorded a summary of what she had discussed in a contemporaneous file note after the call. She wrote “Spoke to Jean discussing the OH report as there is still no clear indication of a timeline to return to work. With this I let Jean know that we would be looking to take the route of unsustainable absence and the option from the business perspective, would be dismissal. I advised Jean to have a think about any options that she may feel are available to her from a personal perspective and if I didn’t hear back from her by COB 21 June I would go ahead and issue the relevant paperwork”.

[39]On the call on 19 June 2023 Ms McNally set out the next steps under the SYA policy as she had decided that from a business perspective the claimant’s non-attendance (for a period of over a year) had become unsustainable. The next steps involved referral of the claimant’s case to an independent decision manager. The reference to relevant paperwork was the referral by Ms McNally to the independent decision manager.

[40]On the call on 19 June 2023 Ms McNally did not say that the claimant needed to provide a definitive date for returning to work or she would have to resign or be dismissed.

[41]On the call on 19 June 2023 Ms McNally said that there was no indication in the OH report of a timeline for a return to work. The claimant agreed with Ms McNally that there was no timeline in the OH report. The claimant said she was not fit to return to work and that this was supported by the OH report. The claimant did not give any timeline for a return to work. The claimant said she needed to speak to her husband and her trade union representative for advice.

[42]As of 19 June 2023, the claimant was not fit to return to any work. She considered that a phased return, as she had done before, would only be possible when she was fit to return. She considered that any option to work from home would only be possible when she was fit to return.

[43]It was a stressful time for the claimant, dealing with her cancer diagnosis. Observations on the evidence

[44]This judgment does not seek to address every point upon which the parties gave evidence. If we have not mentioned a particular point, it does not mean that we have overlooked it. It is not included simply because it is not relevant to the question of whether the claim succeeds or fails. Any references to page numbers are to the paginated bundle of productions.

[45]The standard of proof is on a balance of probabilities. This means that if we consider that, on the evidence, an event's occurrence was more likely than not, then we are satisfied that it occurred. Likewise, if we consider that, on the evidence, an event's occurrence was more likely not to have occurred, then we are satisfied that it did not occur.

[46]The Tribunal found the respondent’s witnesses to be credible and reliable. There were several conflicts in the evidence between what was said on telephone calls between the claimant and Ms McNally. We have resolved these in favour of the respondent, based mainly on contemporaneous documentary evidence. We did not regard the fact that we preferred the evidence of the respondent as tainting the claimant’s overall credibility or that of her husband. These were differences in recollection of what had been said, at a time when the claimant had received a cancer diagnosis.

[47]There was a dispute in the evidence about what was said by Ms McNally and the claimant on a call on 19 June 2023. This call forms the basis of all the claimant’s complaints.

[48]Before looking at this call, there was also a dispute in the evidence about whether Ms McNally had ever referred to the respondent’s SYA policy on her calls with the claimant or in writing to her.

[49]The claimant’s evidence in chief was that Ms McNally had discussed the claimant’s absence with her but had never made any reference to the SYA policy in telephone calls or in writing to her. In relation to the call on 8 March 2023 the claimant agreed that the rest of the file note of 8 March 2023 was broadly accurate but not the part about the SYA policy being discussed with her or that she had asked for anything in writing. The claimant agreed that the part of the file note about her saying that dedicated home working (DHW) was not an option for her was accurate. In evidence she said that this was because dedicated home working would have been too isolating for her.

[50]The claimant’s evidence in chief was that she had not received the letter of 16 March 2023 which had been included in the joint file of productions. The respondent’s representative said that it had not been understood until the claimant’s evidence in chief that she disputed having received the letter. For the purposes of cross examination, the respondent applied to add an additional document to the file of productions which was a copy of Ms McNally’s cover email of 16 March 2023 and the email from the claimant forwarding the email to her trade union representative. The claimant’s representative did not object to this but in any event we would have allowed it to be added if it had been opposed, given the importance of the document to the issues we had to decide.

[51]The claimant’s evidence in cross examination was that she must have received the letter as she had forwarded it to her trade union representative but that she did not recall this. The claimant’s evidence in cross examination was that she could not recall the SYA policy being discussed with her on other calls with Ms McNally, but that she may have forgotten as it was a very stressful time.

[52]Ms McNally’s evidence was that she was following the SYA policy, was taking advice about the SYA policy as it applied to the claimant from internal HR specialist resource, and that she had referred to the SYA policy in various calls as noted in the file notes of her calls. This included on the call with the claimant on 8 March 2023 where the file note referred to having discussed the SYA policy and the letter to the claimant on 16 March 2023 which said “As discussed in our telephone call of Wednesday 8th March, please see the options available to you as per the guidance on Supporting your attendance. I did talk about these, but I understand that you weren’t able to take all the information in and requested it in writing”.

[53]We concluded without hesitation that the SYA policy had been discussed with the claimant on the 8 March 2023 given the contents of the letter of 16 March 2023 sent to the claimant thereafter.

[54]We were satisfied on balance that it was more likely than not that Ms McNally had referred to the SYA policy in other calls with the claimant. This is because she was following the SYA policy and getting internal HR advice on the SYA policy in her interactions with the claimant. She had referred to the SYA policy in various file notes of calls with the claimant. We were satisfied that it was more likely than not that due to the claimant being absent on sick leave and dealing with her cancer diagnosis she may not have remembered everything which was said by Ms McNally to her on the calls. The claimant’s evidence was that dealing with the cancer diagnosis was a stressful time for her.

[55]Turning to the call on 19 June 2023, there was a dispute in the evidence about what was said on that call. The claimant’s evidence was Ms McNally told her that if she did not give a definitive date for a return to work, she would have to resign or be dismissed. Her evidence was that Ms McNally had said that there was no indication of a timeline for a return to work. The claimant agreed with Ms McNally that was the case as the OH report said the claimant was not fit to return to work and did not give a timeline for a return. The claimant’s evidence however went further than this. Her evidence was that notwithstanding the OH report which said there was no indication of a timeline for a return to work, Ms McNally insisted that the claimant provide a definitive date for a return to work.

[56]The SYA policy referred to a phased return. The claimant accepted in cross examination that as of 19 June 2023 she was not fit to return to any work and that a phased return, as she had done before, would only be possible when she was fit to return.

[57]Ms McNally’s evidence was that on the call with the claimant on 19 June 2023 she had said what was recorded in the file note of her call. We accepted that this record was an accurate summary of what was discussed. It was a contemporaneous record. We were satisfied that Ms McNally was taking internal HR advice on the SYA policy and was following the SYA policy in her interactions with the claimant. We were satisfied that what Ms McNally recorded in her file note summary accorded with the process as set out in the SYA policy.

[58]Ms McNally’s evidence was that she had not said the claimant needed to provide a definitive date for returning to work or she would have to resign or be dismissed. We accepted on balance that Ms McNally had not said this. It is not recorded in the file note which is contemporaneous and which we accepted as being accurate. The SYA policy which we accepted Ms McNally was following, did not provide that the claimant required to provide a definitive return date to Ms McNally, or that the options open to the claimant were to resign or be dismissed. Rather the SYA policy provided that if the line manager (Ms McNally) decided that the employee was unlikely to be able to return to effective and reliable service the line manager would refer the case to an independent decision manager to consider whether the absence could continue to be supported. The SYA policy set out the formal process which would then be followed with the independent decision manager. We were satisfied that what Ms McNally was doing on the call on 19 June 2023 was setting out what the SYA policy said. We accepted that the claimant and Ms McNally discussed the OH report and that it did not provide a timeline for a return to work. We accepted Ms McNally’s evidence that the reference to the relevant paperwork in her file note was the referral to the independent decision manager.

[59]We had regard to the claimant’s evidence in cross examination. It was put to the claimant in cross examination that as she had a good relationship with Ms McNally, she could have asked her if she had any concerns or questions about what had been said on the call on 19 June 2023. She could also have spoken to her trade union representative and indeed had referred to getting support from her trade union representative after the call on 19 June 2023. The claimant agreed she had a good relationship with Ms McNally and was getting support from her trade union representative.

[60]We considered the evidence of Mr MacPherson. His evidence was that the claimant put the call on 19 June 2023 on speaker phone and he could hear what had been said. His evidence was that Ms McNally said to the claimant she needed to provide a definitive date for a return to work or resign or be dismissed. Mr MacPherson accepted that he had not said to Ms McNally at the time that he was present on that call. Mr MacPherson’s evidence in cross examination was that even if the call had not been on speaker phone, or not on speaker phone for all of the call, he would have heard what was being said anyway. We were not satisfied that Mr MacPherson had heard all the call. Additionally, tor the reasons already given, we preferred the evidence of Ms McNally (and not the claimant and her husband), about what was said and not said on the call. We were satisfied that the Ms McNally did not say the claimant needed to provide a definitive date for a return to work or resign or be dismissed. Relevant law Unfair dismissal

Relevant law

[61]Section 94 Employment Rights Act 1996 (ERA) provides “(1) An employee has the right not to be unfairly dismissed by his employer.”

[62]Section 95 ERA (circumstances in which an employee is dismissed) provides, so far as relevant to the primary unfair dismissal complaint in this case – “(1)….an employee is dismissed by his employer if…. (a) the contract under which he is employed is terminated by the employer (whether with or without notice)...” Unfair constructive dismissal

[63]Section 95 ERA (circumstances in which an employee is dismissed) provides, so far as relevant to the alternative complaint of constructive dismissal in this case – “(1)….an employee is dismissed by his employer if…. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” This is commonly referred to as constructive dismissal.

[64]It is for the claimant to satisfy the Tribunal that they have been constructively dismissed in terms of section 95(1)(c) ERA.

[65]The breach must be a significant one going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more essential terms of the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

[66]There is implied in every contract the fundamental term of trust and confidence. It is a fundamental breach of contract for an employer to conduct itself in a manner which impinges on the relationship in a way in which, looked at objectively, is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer (Malik v BCCI [1998] A.C.20). The implied term of trust and confidence imposes an obligation that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employer.

[67]The conduct must be such that the employee cannot be expected to put up with it. The employer demonstrates by its behaviour that it is abandoning altogether to perform the contract.

[68]The breach may consist of a one-off act amounting to a repudiatory breach. Alternatively, there may be a continuing course of conduct extending over a period and culminating in a last straw, which considered together amount to a repudiatory breach.

[69]The test for whether there has been a repudiatory breach is an objective one that does not depend on the subjective intentions of the employer (Leeds Dental Team v Rose

[2014] ICR 94

, EAT).

[70]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the Court of Appeal listed five questions that it should be sufficient to ask in order to determine whether an employee was constructively dismissed(i) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered his or her resignation?

(ii) Has he or she affirmed the contract since that act?

(iii) If not, was that act (or omission) by itself a repudiatory breach of contract?

(iv) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation, because the effect of the final act is to revive the right to resign.)

(v) Did the employee resign in response (or partly in response) to that breach?

[71]Section 15 EqA provides: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”.

[72]Sections 20 and 21 EqA provide: “20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2)The duty comprises the following three requirements.(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage....” and “21 Failure to comply with duty (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person....” Time limits

[73]Section 123 EqA provides “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.

(2) .....

(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.” Burden of proof

[74]Section 136(2) and (3) EqA states: “Burden of proof (2) If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. (3) But this provision does not apply if A shows that A did not contravene the provision.”

[75]The burden of proving the facts referred to in section 136(2) EqA lies with the claimant. If this subsection is satisfied, then the burden shifts to the respondent to satisfy subsection 136(3) EqA.

[76]This is described in case law as a two-stage process. The claimant must first establish a first base or prima facie case by reference to the facts made out. If she does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the claimant’s allegation is to be upheld. If the explanation is adequate, that conclusion is not reached (Igen v Wong

[2005] IRLR 258

; Madarassy v Nomura International Plc

[2007] IRLR 246

[77]Schedule 8 EqA paragraph 20 provides as follows: “Part 3 Limitations on the Duty 20 Lack of knowledge of disability, etc.(1) A is not subject to a duty to make reasonable adjustments if A does not know and could not reasonably be expected to know—... (b) .... that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.” Submissions

[78]Both representatives made oral submissions. We carefully considered the submissions of both parties during our deliberations. We have dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching our decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision Unfair dismissal

[79]The claimant asserts that on the call with Ms McNally on 19 June 2023 she was forced by Ms McNally to resign. The claimant relies upon what she asserts that Ms McNally said to her, namely that the claimant could either return to work, resign or be dismissed. We were satisfied that Ms McNally did not say to the claimant that she could either return to work, resign or be dismissed. We were satisfied that the claimant and Ms McNally discussed the OH report and that there was no clear indication of a timeline to return to work. We were satisfied that Ms McNally was following the SYA policy and told the claimant about the next steps under the SYA policy as she had decided that the claimant’s non-attendance had become unsustainable . We were satisfied that Ms McNally had referred to the SYA policy in previous calls and had had written to the claimant about the SYA policy on 16 March 2023, which the claimant had received. We were satisfied that the reference to relevant paperwork was the referral by Ms McNally to the independent decision manager.

[80]We concluded that the claimant had jumped the gun when she resigned with notice on 28 June 2023. It is unfortunate that the claimant did not recall having received the letter of 16 March 2023 which referred to the SYA policy and which was underpinning the calls which Ms McNally was having with the claimant. The claimant sought advice from her trade union representative about the letter though there was no evidence about that advice. The claimant chose not to give evidence about that, as she is entitled to do. Essentially it appears, from the claimant’s evidence, that she thought that the call on 19 June 2023 was the end of the line and that she was about to be dismissed by Ms McNally or somebody more senior, instructing Ms McNally to do so. We were satisfied that was not the case at all. The claimant’s case would have been referred to an independent decision maker and there would have been a formal process, as set out in the SYA policy. That is what Ms McNally was explaining to the claimant.

[81]Both representatives referred to the case E Pascoe v Hallen & Medway

1975 IRLR 116

where an Industrial Tribunal (as then called) held that if an employer gives an employee the alternative of resigning or being dismissed and the employee opts to resign, there is a dismissal in law. We were satisfied that Ms McNally had not given the claimant the alternative or resigning or being dismissed. She had set out the business case which was to recommend dismissal to the independent decision manager. The SYA policy clearly set out the process that would follow with the independent decision manager. Whilst clearly this is not a conduct case, we were satisfied that the SYA policy is akin to the investigation stage of a conduct allegation where the investigation manager may make a recommendation of dismissal, but this is still subject to a formal hearing with an independent decision manager.

[82]Accordingly, the complaint of unfair dismissal, relying on a forced resignation, is dismissed. Unfair constructive dismissal

[83]We reminded ourselves of the terms of section 95(1)(c) ERA and the legal test for constructive dismissal as set out by Lord Denning in Western Excavating. There had to be a breach of contract which went to the root of the contract. It had to be sufficiently serious to entitle the claimant to resign immediately, regardless of whether she actually did so.

[84]The claimant asserted that there was a breach of the implied duty of trust and confidence because of the respondent’s conduct during the call between the claimant and Ms McNally on 19 June 2023. The claimant’s representative submitted that this was not a series of events culminating in a ‘last straw’ event. Rather the claimant relied upon conduct, all of which she asserted as having taken place on the call on 19 June 2023.

[85]We asked ourselves whether the acts or omissions relied upon by the claimant as taking place on 19 June 2023 amounted to a repudiatory breach of contract. Although they all took place on 19 June 2023, we first considered each of the acts and omissions separately to determine whether any of them were by themselves a repudiatory breach of contract. We concluded that they were not.

[86]We considered the alleged act that on the call on 19 June 2023 Ms McNally informed the claimant that she could either return to work, resign or be dismissed. For the reasons already given in our observations on the evidence above, we are satisfied that Ms McNally did not say this.

[87]We considered the allegation that the respondent had failed to await the biopsy result before presenting the options to the claimant of either return to work, resign or be dismissed. As already found, we are satisfied that Ms McNally did not say return to work, resign or be dismissed. We saw no reason why the respondent ought to have waited for the outcome of the biopsy report. We were satisfied that Ms McNally knew the biopsy outcome was non urgent. We were not satisfied that it was discussed on 19 June 2023, but we accepted that Ms McNally knew that the claimant was waiting for a biopsy result. We were satisfied that this would have been discussed by the parties at the formal stage with the independent decision manager.

[88]We considered whether the respondent failed to await further occupational health advice or medical advice and have discussions with the claimant further to the existing occupational health advice. We were satisfied that any further occupational health advice or medical advice or discussion about existing occupational health advice would have been discussed by the parties at the formal stage with an independent decision manager. Ms McNally, following the SYA policy had concluded that the claimant’s absence was unsustainable, there being no timeline in the occupational health report for a return to work and the claimant having been absent on her most recent period of absence since March 2022. We were satisfied that there were no failures as asserted by the claimant which were themselves a repudiatory breach of contract.

[89]We considered the allegation that the respondent required the claimant to provide a definitive date by which she could return to work. For the reasons already given in our observations on the evidence above, we are satisfied that Ms McNally did not say this.

[90]We considered the allegation that the respondent had failed to consider alternatives to an immediate or imminent return to full duties. We were satisfied for the reasons already given that on the call on 19 June 2024 the respondent had not insisted on an immediate or imminent return to full duties by the claimant.

[91]We considered the allegation that the claimant had failed to consider reasonable adjustments. For the reasons given below, in our discussion and decision about reasonable adjustments, we were satisfied that the respondent had not failed to consider or implement reasonable adjustments.

[92]We were satisfied that none of the allegations made were of themselves a repudiatory act. We next considered whether there were any acts and omissions which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence. We were satisfied that there were not.

[93]Objectively, we were satisfied from the perspective of a reasonable person in the position of the claimant that the call with the claimant on 19 June 2023 was not calculated or likely to destroy or damage the relationship of trust and confidence, without reasonable and proper cause. Rather the call followed the respondent’s SYA policy, which the claimant had been told about and sent information about. There was no repudiatory breach and accordingly the claimant did not terminate her contract in circumstances in which she was entitled to terminate it by reason of the respondent’s conduct. The claimant was not therefore constructively dismissed and instead resigned voluntarily.

[94]In the circumstances it is not necessary for us to consider whether the alleged breach was a factor (i.e. played a part) in the claimant’s resignation or whether the claimant affirmed the alleged breach.

[95]Accordingly, the complaint of unfair constructive dismissal is dismissed. Discrimination arising from disability

[96]For a complaint under section 15 EqA to succeed it must be shown that the claimant was unfavourably treated by reason of ‘something’ arising in connection with her disability. If a valid complaint is provisionally made out, the respondent in question may be able to argue that the treatment is justified by being a proportionate means of achieving a legitimate aim. If it can do so the treatment will not be unlawful.

[97]“Unfavourable treatment” is not defined in EqA but the EHRC Employment Code states at para. 5.7 that it means that a disabled person “must have been put at a disadvantage’.

[98]The claimant relies upon two acts which she asserts amount to unfavourable treatment. The first is that on the call on 19 June 2023 Ms McNally told the claimant she could either return to work, resign or be dismissed. For the reasons already given we are satisfied that Ms McNally did not say this. Accordingly, the claimant was not unfavourably treated, as she asserts.

[99]The second act relied upon is that the respondent forced the claimant to resign, or the respondent dismissed the claimant (whether such dismissal is under section 95(1)(a) or section 95(1)(c) ERA. For the reasons already given we are satisfied that the respondent did not force the claimant to resign, and that the claimant was not constructively dismissed. Accordingly, the claimant was not unfavourably treated, as she asserts.

[100]In the circumstances it is not necessary for us to consider whether the “something” upon which the claimant relied arose in consequence of her disability (the “something” identified in the agreed list of issues being unable on 19 June 2023 to return to work on full duties, provide a definitive date by which she could return to work and being absent from work on sick leave). Nor is it necessary for us to consider any of the subsequent provisions set out in section 15 EqA or whether any jurisdiction issues by reason of time bar arise.

[101]Accordingly, the complaints of discrimination arising from disability are Reasonable adjustments complaints

[102]For the purposes of this claim, a failure to make reasonable adjustments requires that a provision, criterion or practice (PCP) put the claimant at a substantial disadvantage compared with people not sharing her disability, and that it would be reasonable for the respondent to make an adjustment which would wholly or partly alleviate the disadvantage. The respondent must have known or reasonably been expected to know about the disability and the disadvantage caused at the time the adjustment allegedly should have been made. Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (i.e. what the respondent ought reasonably to have known).

[103]The claimant relies on two PCPs which she says put her at a substantial disadvantage compared with people not sharing her disability. The first PCP asserted in the agreed list of issues is the requirement that employees work their full duties. The second PCP asserted in the agreed list of issues is the requirement that employees who are absent from work provide a definitive date by which they can return to work.

[104]For both PCPs the substantial disadvantage relied upon, in comparison with persons who do not have the claimant’s disability is that they are unlikely to be able to work their full duties or provide a definitive date by which they can return to work.

[105]We asked ourselves whether the respondent had a PCP of requiring that employees work their full duties. We were satisfied that the respondent did not have such a PCP. The claimant herself had worked on a phased return in the period 27 January 2022 to 17 March 2022 when returning from her first period of absence after her cancer diagnosis. She was still working a phased return (that is not working her full duties) by the time her second period of absence began. The SYA policy referred to a phased return and we were satisfied that Ms McNally was following the SYA policy. The respondent’s evidence which we accepted, in accordance with the SYA policy, was that employees including the claimant could come back to work on a phased return when they were fit to do so. The claimant accepted in cross examination that as of 19 June 2023 she was not fit to return to any work and that a phased return, as she had done before, would only be possible when she was fit to return.

[106]Next, we asked ourselves whether the respondent had a PCP of requiring that employees who are absent from work provide a definitive date by which they can return to work. For reasons already given we were satisfied that the Ms McNally had not required the claimant to provide a definitive date by which she can return to work. Nor were we taken to any provision in the SYA policy which referred to employees being required to provide a definitive date of return to the manager.

[107]We are satisfied that the respondent did not have either of the PCPs relied upon by the claimant. In the circumstances it is not necessary for us to consider the question of substantial disadvantage relied upon, or any of the subsequent provisions set out in section 20/21 EqA or whether any jurisdiction issues by reason of time bar arise.

[108]Accordingly, the complaints of failure to comply with the duty to make reasonable adjustments are dismissed.

Conclusion

[109]Having concluded that each of the complaints are not well- founded there is no requirement for us to consider whether any jurisdiction issues by reason of time bar arise or to consider remedy. Accordingly, the claimant’s claim is