Mrs E Simpson v Red Band Chemical Co. Ltd: 8000173/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000173/2025
Between
Mrs Elaine SimpsonClaimantRed Band Chemical Co. LtdRespondent
Before
Employment Judge A KempMr T Green (instructed by Barrister) for respondentMr R Verrechia for respondentSenior Employment for respondentLaw Adviser for respondentDate 10 July 2025
JUDGMENT
[1]the claimant was not dismissed by the respondent under section 95(1)(c) of the Employment Rights Act 1996,[2]the respondent did not fail to make adjustments required under section 21 of the Equality Act 2010, and[3]the respondent did not harass the claimant under section 26 of the Equality Act 2010; and the Claim is therefore dismissed. E.T. Z4 (WR)
REASONS
[1]This Final Hearing was arranged to address claims of what is normally referred to as constructive unfair dismissal under the Employment Rights Act 1996, although that is not a term of law, and discrimination on the protected characteristic of disability under sections 20/21 and 26 of the Equality Act 2010. It was heard largely in person, and with one witness appearing remotely.[2]Before evidence was heard the Judge explained to the claimant the process of the giving of evidence, including examination in chief covering both liability and remedy, cross examination to dispute any fact not accepted as accurate and to raise a matter that the witness had not covered which may assist the other party, that the Tribunal could ask questions at any time but normally did so after cross examination, and reexamination on matters arising from cross examination or from the Tribunal. The Judge also referred to giving oral evidence about documents so that they were before the Tribunal as evidence as otherwise they may not be considered, leading all the evidence as adding to it later, after the evidence is closed, is allowed only in exceptional circumstances, and finally about the making of submissions, being an opportunity not a requirement.[3]The Judge explained that the Tribunal could assist during the hearing to an extent in light of the terms of the overriding objective in Rule 3, including by asking questions to elicit facts in Rule 41, noting that the claimant was a party litigant and that the respondent was represented by a Barrister. The Judge stated that the Tribunal could not do so in a manner that led to their becoming an adviser of the claimant or acting as if her solicitor.
The evidence
[4]The parties had prepared documentation in the form of a single Bundle, most but not all of which was spoken to in evidence. The claimant gave evidence first. For the respondent evidence was given by Ms Kirsten Bowden, Area Manager; Mrs Jackie Henderson non-Pharmacy Manager (the claimant’s line manager); Ms Eilidh Magill deputy Area Manager and Ms Marta Orkisz deputy Area Manager.
The Issues
[5]A proposed list of issues had been set out in the Note of the earlier Preliminary Hearing held on 19 March 2025. The proposed list was not disputed by either party thereafter, was therefore confirmed. For ease of reference the issues proposed in that Note are repeated: i. Unfair dismissal a) Did the claimant resign in circumstances in which she was entitled to treat herself as having been dismissed in terms of section 95(1)(c) Employment Rights Act 1996. In that regard did the failure of the respondent to address the difficult working relationship between the claimant and her colleagues, Ms Henderson and Ms McArthur such that the claimant felt it necessary to reduce her working hours to a Saturday only to avoid working with them, and in circumstances in which, having worked for those reduced hours between September and November 2024, the claimant formed the view she could not continue to work on that basis because of the financial consequences of the reduction in hours, amount to a fundamental breach of contract. ii. Disability discrimination a) Did the respondent fail in a duty to make a reasonable adjustment in terms of section 21 Equality Act 2010 in relation to ensuring that prescriptions were not placed on low shelves in the pharmacy, such that the claimant was disadvantaged as she struggled to access them. b) Was the claimant subjected to harassment related to disability in terms of section 26 Equality Act 2010, in that the claimant’s colleagues, Ms Henderson and Ms McArthur expected the claimant to carry out the same duties as someone who did not have her condition? In particular did the following amount to acts of harassment or a course of conduct amounting to harassment related to disability:
The Issues
[1]The claimant’s colleagues had excluded the claimant from a social event in October 2023 [it was clarified in evidence that that was in February 2024].[2]Around December 2023, Ms McArthur shouted at the claimant because the claimant had not taken apart a cardboard box and had left it with the rubbish.[3]Around 17 August 2024, asked the claimant to clean a consultation room.[4]Ms Henderson declined the claimant’s request for annual in August 2024.[5]Ms Henderson thanked all staff apart from the claimant and a new pharmacist for their efforts during her leave around 23 September 2024. c) Did the claimant’s resignation amount to discrimination arising from a disability in that she resigned in consequence of the difficult relationship with her colleagues Ms McArthur and Ms Henderson which had been caused by her disability? d) Does the Tribunal have jurisdiction to determine the claimant’s claims in that were they lodged within the statutory period required or should the Tribunal exercise its discretion to extend that period? Remedy iii. If the claimant succeeds in any of her claims what compensation should be awarded to her?
The facts
[6]The Tribunal found the following facts, material to the issues before it, to have been established on the evidence. Parties[7]The claimant is Mrs Elaine Simpson. Her date of birth is 29 October 1954.[8]The respondent is Red Band Chemical Co Ltd. It is a pharmacy and operates about 32 premises in the areas of Fife and Edinburgh. It has around 350 employees. Employment[9]The claimant was employed by the respondent from November 2019 as a dispenser. She initially worked in a branch at Dunfermline and latterly, from around April 2020, at one called the Cross, Inverkeithing.[10]The claimant initially worked for 24 hours per week. She was made redundant, but almost immediately re-employed working 4 hours per week on Saturdays. Shortly thereafter her hours increased to 12 per week, which was in four hour shifts on Tuesday and Wednesday afternoons, and Saturday mornings.[11]One of the claimant’s colleagues was Ms Fiona McArthur. From a relatively early point the claimant and Ms McArthur did not get on well.[12]The claimant worked in the street level area of the branch, which was a dispensary for prescription medicines. with a pharmacist. Ms McArthur worked in a lower, basement, area of the branch with another employee Ms Jackie Henderson. Both were dispensers. The basement area was known as a care home hub. The two levels were in general terms different businesses doing different work.[13]Stock and other items were generally kept in the basement area and required to be brought to the upper area. The basement also had a kitchen and the toilet. The claimant would on occasion go to that area.[14]Where a prescription for a customer had not been completed it was referred to as an “owing”, and was kept at counter level initially before being moved to a lower shelf for a period, after which the respondent arranged to place them at counter level for the claimant on each Friday evening. Disability[15]In or around June 2023 the claimant was admitted to hospital for a bowel condition, and tests revealed that she had a cancerous tumour. On or around 25 July 2023 she had an operation to remove it, known as a colon re-section. It was an operation that took over six hours. After discharge from hospital she was off work recovering for a period of about 7 weeks.[16]The claimant returned to work in October 2023. The claimant was advised to do light duties only, which included no bending or lifting of weights such as a load of washing. She was advised not to undertake tasks such as hoovering, sweeping or putting washing out.[17]The claimant’s line manager at that time was Mr Jeff Canale, who was a Pharmacist. The claimant enjoyed a good working relationship with him. He left the respondent in around December 2023.[18]The claimant’s line manager from January 2024 was Ms Henderson. She was not a Pharmacist, and was appointed initially as non-Pharmacy Manager on an interim basis, on the understanding that if the respondent recruited a Pharmacy Manager she would step back to her former role. In around July 2024 Mrs Henderson was confirmed in her post as no Pharmacy Manager was recruited.[19]The line manager above Mrs Henderson was the Area Manager, but her deputy Ms Eilidh Magill, in effect was the first point of contact.[20]The respondent initially arranged that another employee Ms Avril McAulay attend the branch to assist her every second Saturday. Ms McAulay was however transferred to weekdays by Mrs Henderson after working with the claimant on about two occasions. That was decided by Mrs Henderson to have effective use of her resources. Box incident[21]In about December 2023 the claimant had been in the basement area on a Saturday, and had taken bottles from a cardboard box. She left the empty box there by mistake. She returned to work on the Wednesday following and Ms McArthur told her when passing her on the stairs to the basement “I’ve left your rubbish downstairs for you to clean up”. The claimant followed her downstairs and asked her “Could you not just have put it out I’ve quite a lot on my mind”. In addition to recovering from cancer the claimant had been told that her elderly mother was ill. Ms McArthur said something to the effect “It’s not the first time you’ve left it and I’m fed up with tidying up after you.” Ms McArthur spoke to her in a raised voice when doing so, but was not shouting. February 2024[22]The claimant had a health review meeting with Ms Magill on 7 February 2024. She explained that issues including bending down were difficult for her. She also said that she felt that she was being bullied at work, and left out of things. She said that Ms McArthur does not acknowledge her, and that Ms Henderson was changing matters at the pharmacy without speaking to her about it.[23]Shortly afterwards the claimant discovered that there was to be a social event on a Saturday, 16 February 2024. She had not been invited to it. It involved the other members of staff, and another member of staff who had left called Alison Beveridge. It had been arranged by Ms Beveridge.[24]The claimant emailed Ms Magill about that. After a discussion it was agreed that there would be a mediation meeting involving the claimant, Ms McArthur, Mrs Henderson and Ms Magill to seek to address the difficult relationship between the claimant and Ms McArthur. Grievance against claimant[25]A mediation took place involving the claimant, Ms McArthur and Ms Magill on or around 20 March 2024. During the course of that meeting the claimant was asked by Ms McArthur something to the effect whether not inviting her to the social event was bullying and the claimant said to Ms McArthur “You are a bully.” Ms McArthur left the mediation at that point.[26]Shortly afterwards, on a date not given in evidence, Ms McArthur commenced a grievance against the claimant. She alleged that the claimant had called her a bully and that there was no evidence for that. The claimant was not given a copy of the grievance [and it was not before the Tribunal]. The claimant considered that she had not called Ms McArthur a bully but had said that she felt bullied by her.[27]The grievance by Ms McArthur was investigated by Ms Magill. She was advised to do so by an HR adviser external to the respondent. A meeting was held with the claimant on 10 April 2024. A note of the meeting is a reasonably accurate record of it. Other members of staff were also interviewed by Ms Magill, who prepared written notes of those meeting [which were not before the Tribunal]. Ms Magill prepared an initial draft letter of decision but decided to undertake further investigations. She met again with all those she had spoken to earlier. A note of her discussions with them that she took is a reasonably accurate record of them.[28]A decision on the grievance was issued by Ms Magill on 2 May 2024, which partially upheld the grievance.[29]The grievance decision was then appealed by Ms McArthur on 4 May 2024, and the appeal was heard by Ms Kirstin Bowden. Ms Bowden interviewed the claimant for that appeal on 10 May 2024. The note of their meeting is a reasonably accurate record of it. Ms Bowden also spoke to Ms McArthur.[30]Ms McArthur’s appeal was successful, confirmed by letter of 21 May 2024, which held that a further investigation was required. That investigation was conducted by Ms Rachel Potter, a deputy Area Manager who had not been involved in matters. Ms Potter interviewed staff, including the claimant on 22 May 2024. The note of the interview with the claimant is a reasonably accurate record of it. Ms Potter interviewed other staff members and took statements from them. No written record of the outcome of that investigation exists. Ms Potter told Ms Magill what she had decided orally.[31]Ms Magill emailed the claimant about the possibility of flexible working and sent her a form to complete on 20 May 2024. At that stage the claimant did not pursue that.[32]On 30 May 2024 Ms Magill had a health review meeting with the claimant. No issue as to adjustments not being carried out in relation to the claimant’s disability was raised at that stage by the claimant. The claimant told Ms Magill that she agreed that there had been no bullying.[33]Following the intimation of the grievance outcome Ms McArthur and the claimant had very little contact, and very largely ignored each other.[34]On 13 June 2024 Mrs Henderson had a meeting with Ms McArthur and spoke to her about her interactions with other staff and a view that she could be blunt. July 2024[35]The claimant was informed at a meeting around the end of May 2024 held with Ms Magill and Mrs Henderson that the complaint against her had been upheld, but no disciplinary action was taken against the claimant. That was said as Ms Magill believed that Ms Bowden had upheld the grievance, although she had not done so. The claimant was offered mediation, and weekly check-in discussions.[36]A note of the meeting was emailed to the claimant by Ms Magill that day. The claimant did not respond to challenge the note.[37]In July 2024 the claimant suffered bleeding, and was admitted to hospital. She had a hysteroscopy and was off work for about two weeks. There were two check-in discussions held by Mrs Henderson with the claimant on 9 and 16 July 2024. The claimant did not raise any issue as to adjustments not being undertaken, or that additional adjustments were required, during those discussions. August 2024[38]The claimant returned to work in early August 2024. She asked for holidays by WhatsApp message on 11 August 2024 [not before the Tribunal], which Ms Henderson refused by message sent on 12 August 2024 stating that other members of staff were off for the dates that the claimant proposed, one of whom was Ms Henderson herself. The respondent’s policy that only one member of staff should be off for holidays at any one time, which Mrs Henderson followed when doing so.[39]On 17 August 2024 Ms Henderson sent the claimant a message asking her to clean a consultation room. The claimant did not respond to that message, but did with assistance clean the room. The message did not set out what cleaning was required.[40]On 29 August 2024 the claimant applied for flexible working to undertake four hours per week on Saturday mornings. That meant that she would not work with Ms McArthur or Ms Henderson. Her application was granted by Ms Magill on a trial basis for three months effective on 29 August 2024. That was confirmed by a variation to contract document. She then worked with a new pharmacist called Phoebe, with whom she got on well. As her hours were reduced, her pay reduced to that for four hours per week. September 2024[41]The respondent has an app called HighFive which allows staff to send supportive messages to each other. The claimant noted a message on 23 September 2024 that thanked the team at the branch, but did not include either her or Phoebe, a pharmacist who also worked at the branch. Mrs Henderson was intending to thank those of her staff who had carried out her managerial duties during her holiday.[42]The claimant emailed Ms Magill about it on 24 September 2024, considering that she had been excluded wrongly. October 2024[43]Ms Magill replied on her return from holiday on 2 October 2024. Initially the claimant wished to raise a grievance, and an arrangement for a grievance hearing was made, but after considering it said that she did not wish to do so by email on 14 October 2024. Ms Magill replied the same day to state that she wished to investigate the issues that had been raised. The claimant was asked if there was anything else that the respondent could do. On 15 October 2024 the claimant emailed to ask inter alia about vacancies in other branches. On 17 October 2024 Ms Magill replied to refer to one at Sauchie on Saturdays. She separately emailed the claimant about the investigation and said that she should be able to provide an update.[44]On 31 October 2024 Mrs Henderson was interviewed under the disciplinary procedure and Ms Henderson was issued with a first written warning as a result of that investigation on 1 November 2024 by Ms Marta Orkisz, a deputy Area Manager. It noted exclusionary behaviour in the HighFive message, and thereafter by an apology to Phoebe but not the claimant. Mrs Henderson accepted the warning and did not appeal it. The claimant was not aware of that at the time. November 2024[45]The claimant met Ms Magill on 13 November 2024 to review the flexible working arrangement. The claimant said that she wished to return to 12 hours per week on the same days as before. The claimant was asked if she felt that she needed support and said that she did not think so but was not expecting to be welcomed with open arms. That return to the former hours was confirmed by letter to the claimant the following day, with the new hours to commence on 30 November 2024.[46]The claimant considered that there was a toxic atmosphere at work. She decided to start to look for alternative employment. The claimant had an interview for a post with Boots in Edinburgh on or around 20 November 2024, which she was successful with. It involved more travel but higher hours, being 17.5 per week.[47]The claimant emailed Ms Magill on 27 November 2024 to set out her resignation, referring to the toxic atmosphere at work. She thanked her for her efforts for the claimant. Ms Magill replied the same day. December 2024[48]The claimant worked her notice period, and did so up to on or around 21 December 2024. For some of that notice period the claimant worked 12 hours per week.[49]The claimant had an informal meeting with Ms Magill and Ms Henderson on 17 December 2024, as although Ms Magill had been informed by the claimant of her resignation the claimant had not done so with Ms Henderson. During that meeting Ms Henderson did not engage with the claimant, but looked at her mobile telephone.[50]The claimant’s employment with the respondent terminated on 21 December 2024[51]The claimant started at Boots on or around 31 December 2024. Her earnings are higher than those with the respondent. Early Conciliation[52]The claimant commenced Early Conciliation on 10 January 2025. The Certificate for that was issued on 15 January 2025. The Claim Form was presented on 21 January 2025. The claimant’s submission[53]The claimant was content that everything she wished had been covered in the evidence and she did not wish to make a more detailed submission. Respondent’s submission[54]The following is a very basic summary of the submission that was provided. Helpfully Mr Green had provided a skeleton argument in advance of the Final Hearing, which he supplemented orally. He argued that there had been no dismissal. There had been no repudiatory breach of contract. The respondent had addressed the issues to do with relationships. They could not compel employees to be friends, and had done all that could practically be done. The claimant had not raised any grievance. In relation to the case on reasonable adjustments the respondent accepted that a PCP was applied of putting owings on a lower shelf, and that that disadvantaged the claimant. Their position was that owings were placed on the counter each Friday evening. That was spoken to by Mrs Henderson, but there had also been no complaint by the claimant about it. That tipped the balance of evidence against her. In relation to harassment there was no evidence of what happened being related to the claimant’s disability. Timebar was raised and addressed. Submissions on remedy were made if liability was decided in favour of the claimant. The law (i) Unfair dismissal
The law
[55]There is a right not to be unfairly dismissed provided for in section 94 of the 1996 Act.[56]Section 95 of the 1996 Act defines what a dismissal is and provides, so far as material for this case, as follows: “95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only 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.”[57]Section 98 of the 1996 Act addresses the issue of fairness and provides, so far as material for this case, as follows: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …………… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”………………..[58]The onus of proving such a dismissal where that is denied by the respondent falls on the claimant. From the case of Western Excavating Ltd v Sharp [1978] IRLR 27 followed in subsequent authorities, in order for an employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer, actual or anticipatory.(2) That breach must be significant, going to the root of the contract, such that it is repudiatory.(3) The employee must leave in response to the breach and not for some other, unconnected reason.(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may have acquiesced in the breach.[59]The Inner House considered the issue of a constructive dismissal in Aberdeen City Council v McNeil [2014] IRLR 113, doing so from the perspective of Scots Law. It required a material breach of contract.[60]In every contract of employment there is an implied term derived from Malik v BCCI SA (in liquidation) [1998] AC 20, heard in the House of Lords, which was slightly amended subsequently in Baldwin v Brighton and Hove City Council [2007] IRLR 232. In Leeds Dental Team Ltd v Rose [2014] IRLR 8 it was held that the test was objective: “The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…”[61]The law relating to constructive dismissals was reviewed in Wright v North Lanarkshire Council [2014] ICR 77. The reasonableness or otherwise of the employer's actions may be evidence as to whether there has been a constructive dismissal, but the test is contractual: Courtaulds Northern Spinning Ltd v Sibson and Transport and General Workers' Union [1988] IRLR 305, Prestwick Circuits Ltd v McAndrew [1990] IRLR 191.[62]Where it is argued that there was a final straw, being a last act in a series of acts that cumulatively lead to repudiation, that last straw must not be entirely trivial – Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833. The questions that a Tribunal should ask were summarised as follows: “(1) 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? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term?........ (5) Did the employee resign in response (or partly in response) to that breach?”[63]Omilaju is a reference to the Court of Appeal decision in Omilaju v Waltham Forest LBC [2005] IRLR 35. Breach of the implied term as to trust and confidence set out above, where that is held to have occurred, is inevitably a fundamental breach amounting to repudiation - Morrow v Safeway Stores Ltd [2002] IRLR 9. The reason[64]If there is held to be a dismissal, there must then be consideration of what the reason, or principal reason, for that dismissal was, and if it was a potentially fair reason under section 98(2), it is for the respondent to prove the reason for a dismissal under section 98(1) and (2) of the Employment Rights Act 1996.[65]In Abernethy v Mott Hay and Anderson [1974] ICR 323, the following guidance was given by Lord Justice Cairns: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[66]These words were approved by the House of Lords in W Devis & Sons Ltd v Atkins [1977] AC 931. In Beatt v Croydon Health Services NHS Trust [2017] IRLR 748, Lord Justice Underhill observed that Lord Justice Cairns’ precise wording was directed to the particular issue before that court, and it may not be perfectly apt in every case. However, he stated that the essential point is that the 'reason' for a dismissal connotes the factor or factors operating on the mind of the decision-maker which caused him or her to take that decision.[67]If the reason proved by the employer is not one that is potentially fair under section 98(2) of the Act, the dismissal is unfair in law. Fairness[68]If the reason for dismissal is one that is potentially fair, the issue of whether it is fair or not is determined under section 98(4) of the 1996 Act which states that it “(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[69]The issue of whether or not it was fair under section 98(4) also applies to a constructive dismissal: Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166. It is possible, if somewhat unusual, for a dismissal under section 95(1)(c) to be held not to be unfair. Wells v Countrywide Estate Agents t/a Hetheringtons UKEAT/0201/15 is an example of such a case, where it was held that if the employee's demotion for an act of gross misconduct did constitute a constructive dismissal that dismissal was for a potentially fair reason (conduct) and was reasonable in all the circumstances, such that it was not unfair.[70]In regard to questions of fairness the Tribunal should take account of the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures, so far as relevant.[71]The Tribunal must not substitute its own views for those of the employer. The test is the band of reasonable responses both for the decision being made and what is to be done about it – British Leyland (UK) Ltd v Swift [1981] IRLR 91 and Iceland Frozen Foods Ltd v Jones 1982 IRLR 439 albeit that those authorities are in the context of a dismissal by the employer directly, nor constructively. Nevertheless the same principle of the band of reasonable responses applies. (ii) Discrimination[72]The law relating to discrimination is found in statute and case law, and account may be taken of guidance in the statutory Code of Practice issued by the Equality and Human Rights Commission: Employment. (i) Statute[73]Section 4 of the Equality Act 2010 (“the 2010 Act”) provides that disability is a protected characteristic. It was conceded that the claimant was at all material times a disabled person, she having been diagnosed with cancer, and that the respondent had knowledge of that.[74]Section 20 of the 2010 Act provides: “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……”[75]Section 21 of the 2010 Act provides: “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….”[76]Section 26 of the Act provides: “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B……… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are …. disability…”[77]Section 39 of the 2010 Act provides: “39 Employees and applicants …… (2) An employer(a) (A) must not discriminate against a person(b) (B) – ……..(c) by dismissing B(d) by subjecting B to any other detriment ……. (7) In subsections (2)(c) and (4)(c) the reference to dismissing B includes a reference to the termination of B’s employment…… (b) by an act of B’s (including giving notice) in circumstances such that B is entitled, because of A’s conduct, to terminate the contract without notice……”[78]Section 123 of the Act provides “123 Time limits (1) Subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable……. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[79]Section 136 of the 2010 Act provides: “136 Burden of proof 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. But this provision does not apply if A shows that A did not contravene the provision.”[80]The provisions of the Act are construed against the terms of the Equal Treatment Framework Directive 2000/78/EC. Its terms include Article 5 as to the taking of “appropriate measures, where needed in a particular case”, for a disabled person, “unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”[81]The Directive was retained law under the European Union Withdrawal Act 2018, since renamed assimilated law by the Retained EU Law (Revocation and Retention) Act 2023. (ii) Case law (b) Reasonable adjustments (c) Harassment General[82]Guidance was given by the then Mr Justice Underhill in Richmond Pharmacology v Dhaliwal [2009] IRLR 336, in which he said that it is a 'healthy discipline' for a tribunal to go specifically through each requirement of the statutory wording, pointing out particularly that(1) the phrase 'purpose or effect' clearly enacts alternatives;(2) the proviso in sub-s (2) is there to deal with unreasonable proneness to offence (and may be affected by the respondent's purpose, even though that is not per se a requirement);(3) 'on grounds of' is a key element which may or may not necessitate consideration of the respondent's mental processes (and it may exclude a case where offence is caused but for some other reason);(4) while harassment is important and not to be underestimated, it is 'also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase'. Environment[83]The extent of the protection conferred by the section was examined by the Court of Appeal in Land Registry v Grant 2011 IRLR 748 which focused on the words “intimidating, hostile, degrading, humiliating and offensive” and said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upset being caught”.[84]There can be harassment under this provision arising from an isolated incident; for an example, see Lindsay v London School of Economics [2014] IRLR 218.[85]In Weeks v Newham College of Further Education UKEAT/0630/11 the EAT stated the following: “A decision of fact in a context such as this must be sensitive to all the circumstances. Context is all-important. ……..We would urge caution for a tribunal in placing too much weight upon timing. Where conduct is directed toward the sex of the victim, it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The fact of there being no immediate complaint cannot prevent a complaint being justified, but equally we cannot say that it is a factor that a tribunal is not entitled to consider as part and parcel of the overall circumstances that it has to gauge….. However, it must be remembered that the word is “environment”. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration.” Related to[86]The test for “related to” is different to that for whether conduct is “because of” a characteristic. It is a broader and more easily satisfied test – Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and another EAT 0039/19. The fact that the claimant considers the conduct related to a particular characteristic is not necessarily determinative, nor is a finding about the motivation of the alleged harasser. There must be some basis from the facts found which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in the manner alleged in the claim. In that case the Employment Appeal Tribunal held it is a matter for the Tribunal to determine making a finding of fact drawing on all the evidence before it. There must be some feature of the factual matrix identified by the Tribunal which leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal should articulate clearly what feature of the evidence leads it to that conclusion. The Tribunal should consider the matter objectively.[87]Warby v Wunda Group Plc EAT 0434/11 held that the conduct should be viewed in context in assessing whether the conduct is related to the protected characteristic. The then President of the Employment Appeal Tribunal, Mr Justice Langstaff, upheld a Tribunal’s decision that an employee accused by her superior of having lied about a miscarriage was not subjected to conduct “related to” her sex within the meaning of the sex discrimination provisions then in force. Langstaff P held that context was important and that the tribunal had been entitled to find that the accusation was made in the context of a dispute over a work matter, about which the employer believed that the employee was lying. Thus the conduct complained of was an emphatic complaint about alleged lying; it was not made because of the employee’s sex, because she was pregnant or because she had had a miscarriage. While that case considered the predecessor legislation, the issue was whether the conduct was “related to” the protected characteristic.[88]In Kelly v Covance Laboratories Ltd [2016] IRLR 338 an instruction not to speak Russian at work, so that any conversations could be understood by English speaking managers was not related to race or national origins, even though it potentially could have been. The conduct was because the employer was suspicious about what was being said and could not understand. Viewed in the context of the company’s business and risks the employer’s explanation for the conduct was accepted and the conduct was not related to race or national origins.[89]In UNITE the Union v Nailard [2018] IRLR 730 the Tribunal had held that a failure to address a sexual harassment complaint made against elected officials of the union could amount to harassment related to sex “because of the background of harassment related to sex”. The Court of Appeal considered that went too far. There was a reminder that Tribunals should focus on the conduct of the person who carried out the act and determine whether that conduct is related to the protected characteristic (not whether the conduct of someone else or some other conduct is related to the protected characteristic).[90]Para 7.9 of the Equality and Human Rights Commission Code of Practice: Employment states that the provisions in section 26 should be given 'a broad meaning in that the conduct does not have to be because of the protected characteristic'. This was applied in Hartley v Foreign and Commonwealth Office UKEAT/0033/15 where it was held that whether there is harassment must be considered in the light of all the circumstances; in particular, where it is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[91]At paragraph 7.10 of the Code the breadth of the words “related to” is noted and some examples are provided. It gives the example of a female worker who has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex. At paragraph 7.11 the Code states that in the examples there was “a connection with the protected characteristic”.[92]The question of whether the conduct in question “relates to” the protected characteristic requires a consideration of the mental processes of the putative harasser (GMB v Henderson 2017 IRLR 340) bearing in mind that there should be an intense focus on the context in which the words or behaviour took place (Bakkali v Greater Manchester 2018 IRLR 906). In Bakkali the question was whether a comment as to whether an individual was said to be still promoting ISIS/Daesh was related to race. The Tribunal found it was not as it related to a previous conversation. The Employment Appeal Tribunal emphasised that context is important and the words used must be seen in context. In considering whether the conduct is related to the protected characteristic there should be an intense focus on the context of the offending words or behaviour. The mental processes of the perpetrator are relevant in assessing the issue.[93]In Raj v Capita 2019 UKEAT 0074/2019 the Employment Appeal Tribunal upheld a Tribunal which had found that the massage at his desk by a manager was not conduct related to sex. The conduct was misguided encouragement by a manager. It was an isolated incident and the context was key: a standing manager over a sitting team member in a gender neutral part within an open plan office. In that case the Tribunal did not expressly consider the burden of proof provisions but had found that the conduct was in no sense whatsoever related to sex.[94]Further guidance in relation to “related” to was given in Carozzi v University of Hertfordshire [2024] EAT 169 in which it is stated that “the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”.[95]In Windsor Clive v Forsbrook [2024] EAT 183 it was said that “the concept cannot be so broad as to be meaningless. I am of the view that, as Ms Roddick argues, the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary, therefore, for an ET to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.” Reasonable[96]In Pemberton v Inwood [2018] IRLR 542 the claimant alleged direct discrimination arising from the revocation of his permission to officiate ('PTO') as a Church of England priest and refusal to grant him an Extra Parochial Ministry Licence ('EPML') because he had entered into a samesex marriage, contrary to the doctrines of the Church. The Tribunal held that the claimant’s view was not reasonable as he had entered into his marriage knowing it was considered contrary to Church doctrine and would have the consequence that his PTO would be revoked and an EPML refused. It also held that the enforcement of those decisions involved no aggravating features. The Court of Appeal (approving the decision of the EAT) upheld the tribunal's decision. It held that the claimant's understanding of the position formed part of the relevant context and the employment tribunal had been entitled to take it into account when determining whether his response was reasonable. More specifically, given that the conduct in question was covered by the defence permitted by the Equality Act 2010, Schedule 9, paragraph 2, if there were no aggravating factors, it could not be unreasonable for that conduct to have the effect proscribed in s 26(1)(b): 'to conclude otherwise would make a nonsense of providing the defence to Schedule 9 in the first place'.[97]In Driskel v Peninsula Business Services Ltd [2000] IRLR 151 the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered and that throughout the tribunal should remain conscious of the burden and standard of proof.”[98]The Tribunal is required to determine both the actual effect on the particular individual complainant and the question whether that was reasonable in the circumstances of the case - Fidessa plc v Lancaster UKEAT/0093/16 in which an appeal was allowed on the basis that the employment tribunal, whilst finding that it would have been reasonable for the particular conduct to have had the necessary effect, had failed to make a finding as to what the effect on the claimant had been.[99]In Ali v Heathrow Express Operating Co Ltd [2022] IRLR 558 as part of a security exercise at Heathrow a suspicious package was placed in a public part of the airport to see if it would be discovered by staff. It had wires sticking out of it and written on it the phrase 'Allahu Akbar' in Arabic. The claimant, a Muslim, learned about it in an email giving the results of the security exercise. The Tribunal that in the circumstances it had not been reasonable to take the offence that he had. Those circumstances included in particular that the employer had been carrying out the security exercise in the light of recent terrorist incidents in which the phrase had been used and the claimant should have appreciated this. The EAT held that the ET had been within its discretion in reaching this decision. (iii) Unlawful constructive dismissal[100]The test of whether or not there was a dismissal under section 39(7) of the 2010 Act, often also called a constructive dismissal (used in the sense focussing on the dismissal, not the issue of its fairness) is essentially the same as in section 95(1)(c) of the 1996 Act, and the issue of such a dismissal was examined by the EAT in De Lacey v Wechseln Ltd (t/a The Andrew Hill Salon) [2021] IRLR 547. Observations on the evidence[101]The witnesses are addressed in the order in which they gave evidence. The claimant was we considered seeking to give honest evidence. There were a number of inconsistencies between her oral evidence and the documentation. She accepted for example that the notes of meetings indicated that she had agreed that there had not been bullying of her, but said that she should have challenged that at the time. Notes of meetings appeared on their face to have been signed by her, and were not challenged by her when sent to her. Some of her evidence was not consistent with the evidence of others, in particular Ms Magill in material respects. For reasons we shall come to we accepted Ms Magill’s evidence, and in fact the claimant did not cross examine her. The claimant did not consider that she had called Ms McArthur a bully, but the evidence from Ms Magill and Mrs Henderson was that she had done, there was written evidence supporting that, and we considered their evidence more reliable. The claimant did not consider that there had been a second investigation, but from the written evidence, timeframe and oral evidence it was clear that there had been.[102]The claimant did not think that Mrs Henderson was an appropriate person to be a manager, and there was some evidence of her not being respectful towards her. It was not the claimant’s decision on who her manager was, and she did not appear to have a full understanding of what Mrs Henderson was doing in making changes, which was to follow company procedures which changed. She thought that she should have been consulted first, but it was not clear that that was necessary unless it was to be an issue for adjustments for her, which we did not consider to be the case. Some of the claimant’s criticisms in this regard we considered to be without proper foundation.[103]The claimant has however suffered from cancer, and other health issues, and has had two significant operations. She has had a difficult time at work for a considerable period, and accepted that her disputes with Ms McArthur pre-dated her diagnosis with cancer. Given the stresses she had it is not perhaps surprising that some of her recollections, or her perception of matters, is not we considered reliable evidence.[104]Ms Bowden was we considered a credible and reliable witness. She had conducted the appeal hearing, and the outcome was that there should be another, and independent, investigation. We considered that outcome reasonable, and we generally accepted her evidence.[105]Mrs Henderson was we considered a witness seeking to give honest evidence. She accepted that the claimant had not been included in a message of thanks and that she was wrong not to have done so, for which she apologised. That was to her credit, although a first written warning had been issued to her after a disciplinary process. It was also to her credit that she accepted that how she had messaged the claimant about cleaning the consultation room and rejected her request for holidays could have been more clearly expressed. It was however relevant that Ms Orkisz had rejected some of the explanations Mrs Henderson gave for her actions when she undertook a disciplinary investigation, for reasons we agreed with, and that affected to an extent our assessment of her reliability as a witness. Given that there were some aspects where Mrs Henderson had acted negatively towards the claimant we considered her evidence of compliance with an adjustment with care, but for reasons explained below we ultimately accepted Mrs Henderson’s position over that of the claimant. There was a dispute over whether the claimant had or had not posted an entry on Facebook, and although Mrs Henderson said that she had proof of it it had not been provided in the Bundle of Documents. The absence of it meant that we did not consider that that evidence from Mrs Henderson could be accepted, and on that particular point we preferred that of the claimant.[106]Ms Magill was we considered a credible and reliable witness, in fact we considered her an impressive witness. She had clearly tried her best to resolve the difficulties caused by the poor relationship between the claimant and Ms McArthur firstly, and later with Mrs Henderson. She had explained potential ways of dealing with issues including by formal grievance, which the claimant had decided against doing. Whist we were surprised that HR had advised that she, a witness, should investigate Ms McArthur’s grievance (which was simply wrong, that should not have happened) she had done so. She had dealt with later issues when they arose, and dealt sympathetically with the claimant throughout. The claimant had thanked her for that in her resignation email.[107]Ms Orkisz had investigated the HighFive message, and issued a first written warning about it. She gave her evidence in a way we considered credible and reliable.[108]We also note that some witnesses who might have been called by the respondent were not. In particular Ms McArthur, with whom the claimant worked and had a difficult relationship, against whom the claimant made allegations, and Ms Potter who had carried out the investigation after the appeal which led to the grievance against the claimant being upheld.[109]We might also say that the Bundle of Documents was not in an order that was easy to follow, in that some documents were out of chronological order, some were split between other documents, and some had no identifier or date in relation to them, nor for example an email which attached them which might have revealed what they were and when sent. In addition many documents we would have expected to be before us were not – including the grievance Ms McArthur intimated, the grievance policy, the Bullying and Harassment Policy that was spoken to, the statements Ms Magill took, and something from Ms Potter setting out the result of her investigation (or that she was called to explain that). That all made our task in determining matters more difficult than it ought to have been. . We took those matters into account, including where matters had not been put to the claimant in cross examination (which we suspect was as Mr Wood had not been informed about them). We might add that in making these comments we do not intend to criticise Mr Wood, who we strongly suspect came into matters relatively late in the day.
Discussion
[110]The Tribunal considered all of the evidence it heard. It answers each of the issues which had been identified as above in the following paragraphs. It reached an unanimous decision. Did the respondent dismiss the claimant in terms of section 95(1)(c) of the Employment Rights Act 1996 (“the 1996 Act”)?[111]This is often referred to in shorthand as a constructive dismissal. It is, the Tribunal considers, helpful to re-state that the test is an objective one. Neither the subjective intention of the respondent, nor the subjective perception of the claimant, are determinative. The test has different elements within it, addressed further below.[112]Breach of an implied term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely seriously to damage or to destroy the relationship of trust and confidence between the respondent and claimant, may be a dismissal. For there to be a dismissal requires firstly conduct likely (the relevant term in this context as the Tribunal did not consider that there was any calculation by the respondent) seriously to damage or destroy the relationship of trust and confidence, to paraphrase. If so, there is secondly consideration of whether the employer did or did not have reasonable and proper cause for its acts – if it did, there is no dismissal even if there is a fundamental breach of contract. The other conditions in Sharp then are engaged, which include deciding to leave in response to the breach rather than affirming it, and that being the reason to do so. Breach of the implied term if it occurs is however itself material or repudiatory.[113]The Tribunal concluded that the claimant had not established that there had been a dismissal. There are a number of reasons for that. Firstly, the issue was set out at the Preliminary Hearing and not then challenged by either party. It has as a central point that the respondent did not address the issue of relationships at work. But it did. It engaged with the claimant on many occasions. There was a mediation on 12 March 2024 which was somewhat informal and not as a mediation would often be conducted, but was an informal attempt at resolution which the claimant had decided on after being told by Ms Magill of the option of a formal grievance. There were a number of one to one meetings or review meetings where the claimant was asked something to the effect if there was anything else that could be done. The claimant generally said no. There was an investigation into a grievance against the claimant which included whether she had been justified in calling Ms McArthur a bully. The claimant had denied using the words alleged, but it is clear from the evidence obtained that the claimant had indeed done so. Ms Magill’s investigation was said on appeal not to have been sufficient, and a new one conducted by Ms Potter who was independent. Whilst the outcome of that was less than clear, it had at least been conducted, and led to what were informal warnings, or at least discussions, with Ms McArthur and Mrs Henderson.[114]Thereafter the claimant did initially raise a grievance about the HighFive message, then withdrew it, and yet the respondent investigated and later issued Mrs Henderson with a first written warning.[115]It is in our view therefore not correct that the respondent did not address matters that the claimant complained about. Ms Magill explained on various occasions that a grievance could be raised, but the claimant either did not or when she did, withdrew it.[116]The second aspect of the issue as it is framed is that of the financial consequences of working four hours per week on the interim basis agreed on 29 August 2024. Firstly the claimant asked for that. Secondly towards the end of the three month trial period there was another meeting, and the claimant asked to go back to twelve hours per week. Thirdly the respondent agreed to that on 14 November 2024 and that was to be with effect from 30 November 2024. The claimant therefore knew that the financial consequence was to end, all with her agreement.[117]The two factual bases of the issue as framed are not therefore established in the evidence. There are also other indicators against a dismissal under the section. The claimant for example asked about work in other branches and one possibility in Sauchie was mentioned by Ms Magill. That is not consistent with the breach of implied term required. Secondly on more than one occasion but in particular in her resignation email the claimant thanked Ms Magill for her efforts. That is not the act of someone alleging a material breach of contract. Thirdly it was the claimant who chose not to present a grievance when that was pointed out as an option, and who withdrew the one grievance she did raise. That is not indicative of someone who regarded there to have been a material breach of contract.[118]We considered whether there was a last straw, as explained in Kaur. The claimant did not say in her evidence what there was, and the resignation email referred to the toxic atmosphere. But not long before she had had a meeting with Ms Magill, and had asked to return to her former hours. When Ms Magill asked if there was anything that she wished the respondent to do, the claimant said that she did not think so. It did not appear to us that the financial consequences of four hours per week, which in any event started in late August 2024, could be the last straw in such a situation. It was ending, by agreement. Going back in time, the HighFive message was known of on 23 September 2024, but the claimant withdrew her grievance about it, and not only did not resign at that stage, but engaged in discussions about returning to her former hours with Ms Magill on 13 November 2024. We consider that that was affirming any breach from that message.[119]What we were somewhat troubled by was the meeting on 12 July 2024 when the claimant was told that the grievance against her had been upheld. In our view that was wrong – it had not been. The appeal had been upheld and a new investigation ordered, but there was no evidence before us of what that investigation led to in relation to the grievance against the claimant. The respondent could have called Ms Potter to explain that or provide documentary evidence. That it did not we consider can lead us to infer that the respondent had not upheld the grievance, and to tell the claimant that it had been was wrong. But the claimant did not resign at that point, nor did she argue that as her case (on which we are we consider bound by the issue as found at the first Preliminary Hearing). In any event, we cannot make a case for the claimant she has not made herself. Whilst we were troubled by that aspect, it does not affect our decision that the claimant has not established a dismissal.[120]We also consider it appropriate to add that it was not clear that the respondent understood what bullying was. It may well have been something defined in a policy, but the relevant policy had not been put before us. ACAS has issued a Guide on Bullying at Work, which includes the following: “Although there is no legal definition of bullying, it can be described as unwanted behaviour from a person or group that is either: offensive, intimidating, malicious or insulting an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone Bullying might: be a regular pattern of behaviour or a one-off incident happen face-to-face, on social media, in emails or calls happen at work or in other work-related situations not always be obvious or noticed by others It's possible someone might not know their behaviour is bullying. It can still be bullying even if they do not realise it or do not intend to bully someone. Examples of bullying Examples of bullying at work could include: …………. excluding someone from team social events putting humiliating, offensive or threatening comments or photos on social media”[121]Applying that general guidance it was at the very least possible that the exclusion of the claimant from the social event in February 2024 was itself an act of bullying, although the respondent did not appear to consider that it could be. If so, the claimant alleging that she had been bullied and that Ms McArthur had done so might have been considered in a different light by the respondent at that time. Separately, the message sent on 23 September 2024 could also have been considered as bullying of the claimant and Phoebe. The claimant did not state either in evidence or within the List of Issues that she had resigned because of those individual matters, nor that the second of them was a last straw, and in any event even if she had for reasons addressed elsewhere in our view she had affirmed the contract afterwards in each case, such that there was not a dismissal under the section.[122]Separately the respondent addressed the incidents in both cases, such that the allegation of not doing so was not correct, and in any event not every incident of what can be described as bullying will amount to something that could be described as a breach of the implied term, even assuming that the respondent has vicarious liability for the acts of its employees in this regard. In each of the two cases in our view the incident was not one, either in isolation or taken together, which is a breach of the implied term. That is in our view supported by two further factors, firstly that the claimant did not raise a grievance for the first incident and for the second she did initially but then withdrew it, and secondly that the respondent issued a first written warning in penalty for it, which we consider an appropriate outcome in all the circumstances rather than something more serious.[123]These incidents ought not to have happened, but that does not make them a dismissal in law. That includes either matters in isolation or collectively with other areas we consider the respondent did not handle matters well as we note below. The respondent may nevertheless wish to reflect on what is or is not bullying and have regard to the Guide to which we have referred.[124]In conclusion having regard to all the evidence we heard we did not consider that there had been a dismissal under section 95(1)(c) of the 1996 Act.[125]Even had there been what otherwise might be a dismissal we considered that the respondent had reasonable and proper cause for all that it did. This is addressed further below for each particular matter, but we consider that the respondent, in brief summary, acted as a reasonable employer could in seeking to handle matters involving disputes between employees given the circumstances at the time, which included the lack of grievance maintained by the claimant, and the withdrawal of the one grievance she did initiate. It could not compel friendship, as Ms Bowden said in her evidence.[126]Further, we considered that if hypothetically there had been a dismissal the respondent had a potentially fair reason for it and acted within the band of reasonable responses in addressing the matters before it. The reason for its conduct towards the claimant was to manage relationships at work. That was some other substantial reason for section 98. It is potentially a fair reason. The respondent did so in the manner a reasonable employer could do. If there was considered to be a dismissal, in our view, it was not an unfair dismissal for section 98. But as we found that there had not been a dismissal, there cannot in law have been an unfair dismissal. This claim must therefore be dismissed. Was there a discriminatory dismissal?[127]For essentially the same reasons we consider that there was not a dismissal for the purposes of the 2010 Act. Firstly, there was no dismissal within the terms of section 39, which are in essentials the same as for section 95 of the 1996 Act in this regard. Secondly the reason for the respondent’s behaviour towards the claimant was not to any extent caused by her disability. The fundamental reason was the poor working relationships the claimant had at work, primarily with Ms McArthur but to an extent with Mrs Henderson. The exclusion from the social event was not for reasons of disability, but linked to the poor relationship with Ms McArthur, who was inviting people to it after initial discussion with a former employee. Ms McArthur was not called as a witness, and we infer that she did not invite the claimant as she had a poor relationship with her. It was also not fully a work event, as it had been initiated by a former employee. But Ms Magill treated it as if it was, and was fully entitled to do so. It was not just a group of existing friends, as another employee Avril was invited who appeared not to be within that group. That made it more of a work event than otherwise would be the case. Ms Magill spoke to those concerned in relation to omitting the claimant, because of the exclusion of the claimant, but there was no evidence that the omission of invitation was related to disability in any way. That was the first matter listed in the issues, although it had originally been said to be in 2023 when in fact it was in February 2024.[128]The earlier cardboard box incident was somewhat petty, with Ms McArthur showing a surprising lack of consideration for someone who had cancer and substantial surgery for it. It was however two employees having what could be described as a spat, with disability not being a part of that at all. The claimant was not entirely without blame in relation to it. She followed Ms McArthur down stairs and challenged her about it in a manner that was not apt. If there was an issue, she could and should have raised it with a manager. The respondent’s position in evidence was that Ms McArthur also should have raised any issue she had with a manager to deal with, and they were right to say that. Ms McArthur should not have acted as she did. But the way she acted was wholly unrelated to the claimant’s disability in our view.[129]Holidays were refused for what was understood to be policy, not again because of disability. That was spoken to by Mrs Henderson, but also supported by Ms Magill. We accepted Ms Magill’s evidence. Again this was not a matter related to disability for the purposes of the 2010 Act.[130]The request to clean the consultation room was ill-considered, but not thought by Mrs Henderson to be a real issue as she intended to mean more of a tidy up. It had not been well worded but we did not consider it had any relationship to disability at all. It was not sent to try and make the claimant’s life more difficult, which was in effect what she alleged. It was also notable that the claimant had not replied to that message, nor had she raised it with Ms Magill despite her having a good relationship with Ms Magill.[131]Finally the HighFive message was for the reasons Mrs Henderson gave, and whilst not well considered by her was not sent to any extent because of the claimant’s disability. It was sent she said to those who had carried out some of her managerial duties when she was on holiday. It was wrong to exclude the team, but that included Phoebe the new pharmacist, who was not disabled. That emphasised our view that once again the matter was not related to the claimant’s disability.[132]All of the issues founded on as individual matters therefore were not related to the claimant being a disabled person at all. The toxic atmosphere had predated the claimant’s disability. In our view there was no dismissal for the purposes of the 2010 Act. Did the respondent fail to make a reasonable adjustment?[133]The evidence on this aspect was disputed, but helpfully the respondent made concessions in submission. The issue was simply whether or not the owings were on the lower shelf or the counter. The claimant alleged that prescriptions that had been partly completed were kept on the low shelf. The respondent’s evidence was that they were moved to the counter area, at about waist height. Mrs Henderson was adamant that that was the position, and the claimant equally adamant that that was wrong. But the claimant had not complained about that when there was an opportunity to do so, for example in a health review meeting with Mrs Henderson, nor had she done so at any point formally or informally with Ms Magill. No grievance had been raised. If the issue was a material one we would have expected normally to see some form of complaint about it in written form preferably, if not orally, but that was not done. The only place that was seen was in the meeting with Ms Potter, which was in May 2024.[134]Ms Magill’s evidence was that no issue about the owings and the position they were left had been raised with her, including in meetings where adjustments were discussed. It appears to us that that absence of complaint strongly supports the position of Mrs Henderson. The written records also support the position that no complaint was raised by the claimant about the position of the owings prescriptions during the summer of 2024 and later months. That includes open and broad questions to her in meetings when she was asked about any support that was sought.[135]Our conclusion on this point is the evidence of Ms Magill and Mrs Henderson is to be preferred to that of the claimant. We consider it likely that the owings were put on the counter for the claimant on a Friday evening, and that the adjustment was being carried out. As a result, the respondent did not fail to carry out a reasonable adjustment. On this basis the claim under sections 20 and 21 does not succeed and is dismissed.[136]It is possible that at some point the owings were on a lower shelf as that was raised as an issue with Ms Bowden, but that was well before the cut off date for a claim to be in time, there was we considered no evidence of that being part of conduct extending into the period of time that was in time, and we did not consider it just and equitable to allow that matter to be addressed. The claimant had not raised any matter with the respondent after the discussion with Ms Bowden on occasions when she had that clear opportunity. We have accepted Ms Magill’s evidence as to this.[137]Even if therefore there was a delay in time before the matter was addressed that was small, and if there is a claim about that, which is far from clear, it is outwith the jurisdiction of the Tribunal. For that, matters prior to 10 October 2024 are outwith jurisdiction unless part of conduct extending over a period to on or after that date, or it is just and equitable to allow the claim although otherwise late, under section 123. We did not consider that there was evidence of conduct extending over a period. In all the circumstances given the passage of time, the lack of challenge at that time, and the obvious impact on evidence in the light of the lack of challenge, we did not consider it just and equitable to allow that aspect to proceed. Did the respondent harass the claimant?[138]It is relevant to state initially that harassment is not the same concept as bullying. Harassment is addressed within the terms of section 26, and all elements of it must be considered.[139]Whilst there was some conduct towards the claimant that was we considered not appropriate, and could amount to a detriment if other aspects support that, we did not consider that there was evidence that this was related to her disability for all the reasons given above. In short, the fact that she had suffered from cancer, had an operation for that, later had gynaecological problems and a second operation, with absences from work and continuing impact on her, all of which are part of her having the disability, was to any extent at all a factor in her treatment by any of the respondent’s employees. That finding must result in the failure of this claim.[140]The claimant had a difficult relationship with Ms McArthur, but that predated her diagnosis. It continued afterwards, but we did not consider that there was any reliable evidence that it became worse because of her disability or a matter related to that. The claimant had an increasingly difficult relationship with Mrs Henderson, which appeared to us to be largely as the claimant did not consider Mrs Henderson should have been appointed to the managerial role. She resisted at least some of what Mrs Henderson did. The claimant considered, wrongly, that Mrs Henderson should have consulted with her about changes. A manager does not require to do so particularly where changes are relatively minor and operational. These were exactly that.[141]Some matters were undoubtedly handled poorly by the respondent. That included the behaviour of Ms McArthur in the box incident and in not inviting the claimant to the social event, Mrs Henderson’s request to clean the consultation room, which was made shortly after the claimant returned to work from the second operation, and the HighFive message she sent. But there was no evidence that they had anything to do with the claimant’s disability and in our view they were not. The message about the consultation room was badly worded, but simply a request which Mrs Henderson did not consider would involve any particular bending or lifting or similar. The second message was ill considered, but intended to reflect the work others did for her when she was off, and the view that the claimant had not done so, in addition to which it also involved the omission of the pharmacist Phoebe who was not a disabled person. But handling matters poorly, as the respondent did in part, does not of itself lead to harassment under the Act.[142]We also consider that some of the issues the claimant complained about were minor ones that a reasonable person would not regard as creating the kind of environment the Act refers to. The issue with the cardboard box, the request about the consultation room, and the rejection of holidays for the stated reason, are all we consider more minor matters. If the claimant had an issue about being asked to clean that room she could have told Mrs Henderson that in a reply, or raised it with Ms Magill. She did not. Holidays were re-arranged for a date when someone else was not to be off. Being omitted from the February 2024 event was a matter that someone might regard as within the terms of the Act, but that was nine months before the resignation and well out of time. It was not challenged formally at the time and it would not be just and equitable to allow it now in our view. We did not consider it conduct extending over a period.[143]The HighFive message from Mrs Henderson was well handled by Ms Orkisz, who properly intimated a first written warning, but that was against the claimant not considering it serious enough to proceed with the grievance she had initially raised. That does not assist the claimant in her argument that it was an act of harassment. If considered as a standalone matter it was known to her on 23 September 2024, and that is outwith the period for timebar purposes. It was also not part of conduct extending over a period. We did not consider it within the jurisdiction of the Tribunal as it was not just and equitable to allow it as a standalone claim where the claimant had not wished to pursue the grievance, but in any event it was not related to her protected characteristic of disability and would for that reason have failed in any event.[144]We therefore considered that there had not been any harassment of the claimant under section 26. This claim we also dismiss. If any claim succeeds, to what remedy is the claimant entitled?[145]This issue does not now arise.
Conclusion
[146]The Tribunal must therefore dismiss the Claim.