The unanimous Judgment of the Employment Tribunal is that the claimant’s claims all fail, and are dismissed.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 25 August 2023 in which she complained that she had been discriminated against on the grounds of disability by the respondent.[2]The respondent submitted an ET3 response in which they resisted all claims made by the claimant. ETZ4(WR)[3]A Hearing was listed to take place on 21 to 23 May 2024 in the Employment Tribunal, Edinburgh. That Hearing did not see a conclusion to the evidence, and accordingly a further 3 days were set aside for the Hearing, on 21 to 23 October 2024, when it was able to finish.[4]The claimant appeared on her own behalf at the Hearing, and was assisted by an interpreter in the Polish language who provided translations of questions and answers as required by the claimant, who was sufficiently proficient in English as not to call upon the interpreter often during the Hearing.[5]The respondent was represented at the Hearing by Mr D Milne, Advocate.[6]A joint bundle of documents was presented to the Tribunal, to which additions were made during the course of the Hearing with the permission of the Tribunal.[7]The Tribunal directed that this Hearing should address the issue of liability only.[8]The claimant’s claims were set out in a Scott Schedule presented to the Tribunal and relied upon by the parties in the course of the Hearing. In essence, that Schedule forms the basis of the List of Issues set out below, which the Tribunal relied upon in reaching its decision.[9]The List of Issues is as follows: i. Failure to provide the claimant with support in relation to her medical conditions up to and including 19 January 2024; ii. Failure to arrange for an Occupational Health assessment for more than 1 year, on or around 1 February 2021; from the claimant’s GP because the respondent said that the claimant may have lied on her occupational health assessment, on 16 December 2022 (an allegedly position of transport clerk was not received, on or around 1 July 2022; v. Failure to agree to the claimant’s transfer to Grocery, on 5 October 2022. 2. Failure to make reasonable adjustments (section 20/21, Equality Act 2010 iii. Allowed a short break, and to stop PI tracking during the break 3. Harassment on the grounds of disability (section 26, Equality Act 2010) i. Subjecting the claimant to performance investigation on 2 June 2022; 20 October 2022; and[10]Based on the evidence led and the information provided, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[11]The claimant, whose date of birth is 21 December 1969, commenced employment with the respondent on 11 July 2016 in their Dagenham Distribution Centre, and transferred to the Livingston Distribution Centre (“Livingston DC”) on 1 February 2021.[12]The respondent operates a number of retail stores across the United Kingdom, employing approximately 300,000 staff. The Livingston DC provides a distribution service to stores in Scotland.[13]When she joined the Livingston DC, the claimant was provided with a fresh statement of terms and conditions of employment by the respondent (180ff), confirming that her employment there began on 2 February 2021, and that her date of continuous employment with the respondent was 11 July 2016. Her job title was Flexible Warehouse Team Member, working a basic 37.5 hour week, on any 5 days from 7.[14]The statement of terms and conditions provided (182): “Warehouse Performance (applicable Warehouse roles) You are employed on a 100PI contract. All colleagues employed on 100PI contracts will be expected to achieve a minimum performance of 92PI as a combined outcome for all time spent on measured work. The performance standards will be reviewed by the Tesco work study department at regular intervals using the productivity model and after a change in the ways of working. The results will be shared with the Trade Union prior to implementation who will have the opportunity to have these results examined by their work study specialist. Individuals who fail to achieve the standards set will initially be informally managed by their immediate Team Manager to establish if there are any training needs or particular support needed. Once complete the individual will be given a set of targets to achieve. Consistent failure to achieve the minimum standards will result in referral to the disciplinary process. Repeated and consistent failure to achieve the standards of performance will be fully investigated and if there is no reasonable explanation the individual could ultimately be dismissed through the disciplinary process.”[15]The claimant signed acceptance of her terms and conditions on 2 February 2021 (187).[16]The performance required of the claimant, at 92PI, was measured according to the time taken to perform and complete each task. Employees of the respondent would carry a small digital console (AMT) strapped to their arms, on which their task would be allocated to them, and a target time for completion of that task depending on the task.[17]The claimant suffers and, at the material time, suffered from 3 conditions, namely Hashimoto Hyperthyroidism, Irritable Bowel Syndrome and Menopause. The respondent has admitted not only that each of these conditions amounted to a disability under section 6 of the Equality Act 2010, but also that they were aware of the claimant’s conditions at the material time.[18]The claimant was based in the Fresh department of the Livingston DC, a department dealing with food which requires to be preserved at lower temperatures, such as meat, vegetables and dairy products. The claimant was required to pick, which meant that she had to pick up a pallet on which products had already been loaded, to place the correct products in the correct cages. Each cage would then be taken from the DC to the appropriate store. She was also required to work on “goods-in”, which required her to unload incoming lorries and break down the products contained in larger pallets into smaller pallets, from where they would be picked.[19]The Fresh department involved lighter work than the Groceries department, where the work was heavier and more physical, and took place in a warmer environment as the products were at ambient temperature so no control was placed on the temperature in that department.[20]The claimant’s line manager was Adelle Watson, then the Warehouse Services Team Manager.[21]On 20 December 2021, the claimant met with her line manager for an informal conversation known as a “Let’s Talk”. Ms Watson kept handwritten notes of such meetings, and of this one in particular (200).[22]She noted that they talked about: “Request for OH referral to be completed. Current health conditions Fit note from Doctor confirming conditions and support recommended Support already given”[23]Ms Watson advised the claimant that she was happy to comply with the claimant’s request for a referral to Occupational Health (OH), once her GP had confirming in writing her health condition and recommend support in the form of a fit note (a Fitness for Work Statement) or a letter from the hospital, on the basis that Ms Watson was unable to find anything on her file relating to a health condition. She referred to a previous OH referral carried out while the claimant was in Dagenham in February 2020, where no support was agreed with the claimant’s manager.[24]She also agreed that the claimant could be put on to Group RO9 to work in “plus 1 as much as possible, but if no work will need to go with Plus 12”.[25]Plus 1 essentially referred to the area within the Fresh department where the temperature was maintained at plus 1 degree, and was thus cooler than the plus 12 area. While working in plus 12, workers sometimes chose to wear shorts, to take account of the warm working conditions.[26]Group RO9, which was known locally as Group 99, describes those workers who are employed on light duties or light boxes. They will be permitted to work in such an area and on such duties while work is available, though when no light work is available in that area, they are expected to move to carry out other duties. The majority of staff in Group 99 have workplace adjustments made for them due to medical or similar[27]It was noted that the claimant was refusing to obtain a fit note from her GP or a letter from the hospital, and therefore an impasse had been reached, since Ms Watson was unwilling or unable to refer her to OH until she had something in writing confirming the claimant’s medical[28]Ms Watson also noted that there was nothing in the claimant’s file from Dagenham relating to any health condition, and that following an OH report in February 2020 no support was agreed with her manager.[29]She advised in the note that she had previously advised the claimant that they needed her to get a fit note from her GP, as had her union representative George Burns, so that a recommendation could be sought from OH. Ms Watson was of the view that the GP’s note would advise of any recommendations they made, and that would be taken into account by OH.[30]The note concluded by saying: “Catch up once Judit manages to provide relevant info needed for referral/support.”[31]The respondent monitored the performance of their staff each week, and maintained records of the results. The claimant was monitored in relation to her performance in Picking and in Goods-In, with an average result displayed in the final column of the report (201ff). As an example, the claimant’s picking performance on 11 October 2021 was 94.52, and her goods-in performance on that date was 86.74, giving a total performance result of 92.28, which was in excess of the standard performance expected of 92PI. However, on 29 October 2021, her picking performance was 72.83 and her goods-in performance was 59.41, giving a total performance result of 61.87, well below the standard expected performance.[32]It was noted on a picking performance report from 1 March 2021, in the handwriting of Ms Watson, that the claimant’s critical performance was under 75; that she had been placed on reduced support with an adjusted target of 84 and that her expected performance without support was 92.[33]The claimant continued to insist that she should be referred to OH, without any requirement to produce a fit note from her GP. She wrote to Ms Watson on 12 February 2022 to ask again if she was willing to do this (207) and to confirm that she had contacted OH directly. Ms Watson replied on 17 February 2024 (207): “Hi Judit As previously discussed with you on several occasions and with the 3 union reps you have spoken with I will again make you aware that I am more than happy to refer you to OH based on you providing the relevant documents from either your GP or consultant. Myself and the 3 union reps have advised you to bring in a fit note from your GP or paperwork from your consultant stating what condition you have and what recommended adjustments they suggest I look at for you. Since the last time we spoke I agreed to extend the temp support I had in place for you a further 4 weeks to allow you to attend your GP to get the fit note. All 3 reps that you have spoken with are in agreement with me that it is not an unreasonable request from myself that you provide some form of medical evidence that you have indeed got a medical condition that requires support. In fact they actively promoted that request and informed me that they have also told you that. The temp support that was/is in place was: 1. as much as operationally possible we would keep you in plus 1 where it is colder. This will support you when you take a hot flush. 2. put you onto a group that supports light duties. This will support with your fatigue. At our last meeting that was documented on a lets talk and placed in your file you were again advised to go to your Gp/consultant for the required documents. I also at that point advised you that your last OH referral before your transfer there was no adjustments agreed between you and your manager and there is no medical evidence to show that you have a health condition that requires support. Can I ask what additional support that you require that I have not already given you? Regards Adelle”[34]The claimant continued to refuse to provide any medical information to the respondent. However, on 26 March 2022, Ms Watson relented and wrote to her (209): “Hi Judith (sic) We have been contacted by OH as you keep inundating them for an OH referral. This is unacceptable and you need to go through the proper procedures for this to happen. I have spoken with our people partner and I will meet with you once you are back from your holidays and when we are both on backshift. I will do the referral however you need to understand that I will make them aware the reason for this referral and the lack of information I have received from you regarding your medical condition. We will also have a workplace adjustments meeting and complete this prior to me completing the referral as this is an important piece of information needed by the OH team.”[35]Ms Watson then invited the claimant to attend a Reasonable Adjustments Meeting on 11 April 2022. Notes of the meeting were kept by Ms Watson (211ff). The claimant was accompanied by a trade union representative, Karen Petrie.[36]The notes encompassed that meeting on 11 April 2022, in which handwritten notes were taken (212ff), and a follow up meeting on 22 June 2022 (216ff) after the OH report was available.[37]On 11 April 2022, Ms Watson noted that with regard to her mobility, “sometimes causes dizzy, hold onto cage, truck, pods. Hot flushes – intermitting”. With regard to sight, it was noted that there was no connection to the menopause, but that she wore reading glasses. So far as hearing was concerned, it was noted that “affects hearing when got brain fog. Hard to concentrate with brain fog and breathing.” Against mental wellbeing, it was noted that the claimant suffered from mood swings.[38]So far as her medical conditions were concerned, it was noted that the claimant’s IBS was diagnosed in December 2019, though she had had symptoms for 30 plus years; hyperthyroidism was diagnosed in 2007, and the menopause was diagnosed in December 2019, with symptoms having been suffered by the claimant since September 2019.[39]When asked whether she had any suggestions as to what she thought the respondent could do to alleviate the situation, it was noted that she identified “lighter boxes” and “extra break if needed due to cramps”.[40]Ms Watson confirmed that the claimant had consented to a referral to OH. When asked on the form whether it was appropriate to agree temporary short-term adjustments pending the OH report, Ms Watson answered “no”, and said “Temp adjustments already been made & Judit’s PI has not improved.”[41]Ms Watson met with the claimant on 11 April 2022 in relation to her performance, and completed a “myPerformance” form. It was noted that between 6 March and 2 April 2022, the claimant had missed her target and was achieving an average of 68.39%. well below the then target of 92%.[42]The claimant’s performance was monitored between 7 April and 7 May 2022, and a meeting took place on a date which was not clarified in evidence, in which a “myPerformance” form was completed by Ms Watson following discussion with the claimant. It was confirmed that the claimant was missing her target, which was said, incorrectly, to be 92% (it should have referred to 84%, the adjusted target for the claimant).[43]Under the heading “What we’ve talked about and what we’ve agreed”, it was noted that the claimant’s average performance between weeks 7 to 10 was 73.11, and that she must achieve 92% as part of the process. Again, it is understood that this was incorrect. The claimant and Ms Watson both signed the document.[44]The claimant underwent an appointment with Louise Moody, a Remote Case Manager, by telephone on 30 May 2022. A report was produced on that date (234ff). She confirmed that the claimant had had the opportunity to review the report before it was sent to Ms Watson.[45]Under “Background”, Ms Moody noted the following: “As you are aware Mrs Borsos suffers from a common digestive condition, irritable bowel syndrome (IBS)… We discussed this further, and she reports that she is prone to sporadic flare ups which cause her to experience unpleasant symptoms. These can include stomach pain, cramping, bloating, frequency and urgency to get to the toilet along with a general feeling of being unwell. She declared that she tries to manage her IBS through careful consideration of her dietary choices, medication and she ensures, where possible, that the foods she eats do not contain ingredients which can trigger her symptoms, however at times flare ups can occur sporadically. She is also experiencing menopausal symptoms, and describes variable symptoms such as hot flushes, dizziness, brain fog and mood swings. She currently manages her mood with prescribed medication, and she is using alternative therapies to assist with the management of additional menopausal symptoms. She may wish to discuss additional treatments which are available to assist with menopausal symptoms such as hormone replacement medicines with her GP, however this is untimely (sic) her personal choice with regards to her own health management…”[46]Under “Current Position”, Ms Moody recorded: “in my opinion it is medically reasonable for Mrs Borsos to attend work. The following modifications are also suggestions for management consideration; Accommodating tasks which allow for frequent task rotation as dictated by her symptoms Limiting her requirement to complete heavier manual handling tasks Breaking down any larger loads to smaller more manageable ones I recommend a moving and handling risk assessment (or other relevant risk assessment) is carried out with the colleague to help identify any further work-related factors that may be having an impact and to assess and minimise any risks… Supporting flexibility with comfort breaks as dictated by her symptoms Having regular supportive one-to-one meetings Supporting a slower pace of working – performance targets may need to be reviewed/reduced to mirror symptom level at the time Supporting flexibility with regards to the work environment, accommodating her in a colder environment as dictated by her symptoms. Please note, these are recommendations only, and we have discussed that you would need to review the advice to see if this is practical and feasible for you to implement. It is therefore advisable for management to arrange a meeting to discuss what you require from them in a work capacity going forward, and what they perceive they can realistically complete and achieve…”[47]On 2 June 2022, a “performance investigatory” meeting took place, chaired by David Ewart. The claimant attended without representation, and notes were taken by Stevie Caves (247ff).[48]Mr Ewart asked her about her not achieving her targets, and averaging 76.7% over 3 months with ongoing support in Group 99. The claimant responded by pointing out that she was awaiting an OH report, and that she was only on Group 99 for a short time. When asked what could be done to support her, she said “Group 99 and cold chamber (plus one) will help”. She said that 8 weeks on Group 99 had helped.[49]Mr Ewart decided that a disciplinary hearing should be convened on 8 June 2022, with Alex Forrest hearing the case. He invited the claimant to attend by letter dated 2 June 2022. The purpose of the hearing was to discuss the claimant’s performance. The letter confirmed that the outcome could be disciplinary action up to and including dismissal.[50]The hearing took place before Ms Forrest on 8 June 2022. Alex Burton took notes (264ff). The claimant attended without representation. At the conclusion of that meeting, Ms Forrest advised the claimant that the next step should be that she discussed the OH report and support needed with her manager. She expressed the hope that they would see an improvement in the claimant’s performance once support was put in place[51]On 22 June 2022, the claimant met again with Ms Watson to discuss workplace adjustments (216ff). On this occasion, she was accompanied by Robert Weston, her union representative.[52]It was noted that the claimant was on constant late shift.[53]In the section denoting the summary of adjustments being offered, it was noted by Ms Watson: “Default Chamber +1 to try to keep in colder area as much as possible. But if no work will need to go into Plus 12. Extra break – if Judit needs extra break due to IBS to go to toilet then that is ok.”[54]Ms Watson noted that the claimant was in agreement with the adjustments being offered.[55]Ms Watson also completed a Colleague Health Risk Assessment Form (279) on that date. She noted that the risk relating to heavy lifting and handling was “Heavy lifting causes more hot flushes, one after another, wet with sweat, once cooled down I’m then cold and wet”. So far as repetitive lifting and handling was concerned, the “same above” was noted. Personal health issues were said to be “as per OH report”. With regard to additional training, Ms Watson noted “Layer master re train”. In relation to her hours of work, Ms Watson noted “Extra break when required”.[56]The claimant expressed an interest in applying for a position elsewhere within the respondent’s organisation, of transport clerk, and Ms Watson encouraged her to do so as she considered that the claimant would be a suitable candidate for the post. She emailed the application to Ms Watson on 23 June 2022 (282). Ms Watson took the application and handed it to one of the transport managers based in the transport section in the Goods Out office, on the same day.[57]On 23 June 2022, Ms Watson emailed Karen Murphy, People Partner, to provide her with an update on the meeting. She confirmed that she had gone through the OH report and that she had explained that “what they recommend we had already gave that as temp support and her performance didn’t improve at all. She would like to reintroduce the reduce pick rate of 84%, group 99 and extra break if required. She has also requested being trained on the layer master which I have agreed as it is part of goods in anyway so that will be done in 2 weeks. I completed the health questionnaire but there was nothing came out of it except the lifting heavy items that affect her current medical conditions. Turns out there is also a transport clerk vacancy at the moment so I gave her the internal application form for that. She has filled it out and scanned it to me so I will give it to transport this afternoon. She has extensive previous office experience so I think she will be well-suited to the role.”[58]When Ms Murphy sent an email on 28 June asking for an update, Ms Watson responded by saying that she had not heard anything, and that she had passed the application pack to Transport, and presumed that they would get in touch with the claimant directly.[59]On 30 June 2022, Ms Watson wrote to the claimant (317) to summarise the terms of the discussion which they had in their meeting of that same date. She referred to that discussion, where they had addressed the claimant’s “below expected” performance, namely that her concerns were about the claimant’s PI for the 4 weeks from 24 July 2022 until 20 August 2022, in which her PI was 75.91% against a target of 85%.[60]By this time, all staff had had their targets adjusted to 85% rather than 92%.[61]She then listed a number of points: “Managing all breaks in accordance to company policy Achieving and Managing 85% Combined skills Ensuring still time is managed/time due is recorded Start/End of shift are managed within time scales Legitimate delays are recorded. We agreed a Performance Improvement Programme which will help you improve, and I want to work with you in addressing these. During our meeting we agreed some actions that will help you bring your performance back to an ‘expected’ level.”[62]Ms Watson then identified two support measures/actions.[63]Firstly, she noted that there would be a focus on efficient picking, keeping unnecessary downtime to a minimum, targeting improvement week on week, within 4 weeks; and secondly, she noted that the claimant should only ask for legitimate delays, ensuring that these were requested on the sheet at workstation 4, targeting only legitimate delays being requested, reviewed weekly.[64]“Legitimate delays” were intended to encompass events which were outwith the control of the employee but which caused delays in carrying out items of work. Examples of legitimate delays would be anything which happened on the warehouse floor causing extra time to carry out a task, a lorry being delayed in delivering items, or in the case of the claimant, the requirement to take an additional break because of her need to go to the toilet urgently.[65]The claimant was on holiday from 1 September and accordingly the next review meeting was fixed for 23 September 2022 (319).[66]On 22 September 2022, however, the claimant submitted a grievance (321). She identified this as a “Formal grievance against Adelle Watson for refusing support and reasonable adjustments recommended by Occupational Health.”[67]The review meeting took place on 23 September 2022, chaired by Stephen Caves. The claimant was present with her trade union representative Richard Tennent. Notes were taken by Alex Brodie (329ff). The meeting was adjourned and continued on Sunday 25 September 2022 (342ff). The outcome was that no disciplinary action would follow. In a Let’s Talk on that date, Stephen Caves met with the claimant to remind her of the requirement to follow the appropriate absence reporting procedure (343).[68]In a Let’s Talk on 5 October 2022, the claimant met with Ms Watson, and it was noted that under the grievance process she should speak to her own manager to resolve matters, and that she had requested to transfer to Grocery. (353). Attached to the Let’s Talk were further notes taken by Ms Watson, and at 356 she noted: “I have went through OH report again with Judit outlining the recommendations & support being given. I have agreed with Judit that I will put her on G99 for 4 wks on the understanding she reached 85PI & provides medical papers/reports/prescription as proof of menopause & IBS. Failing this happening all support will be removed after 4 weeks. Judit says she cannot get from GP & will not bring in any paperwork as she doesn’t need to. Judit’s request to move to Grocery has been refused due to it contradicting the ‘support’ she needs in Fresh. Judit wants to go ahead with the grievance.”[69]Ms Watson wrote to the claimant on 18 October 2022 (363) to confirm the outcome of the Second Individual Support meeting. She noted that the claimant’s performance remained at a “below expected” level, and that it was her opinion that despite having time and support to improve her performance, she had not progressed sufficiently. It was noted that her combined pick and goods-in was 75.4% against an expected target 85%.[70]She invited the claimant to attend a first formal capability review meeting on 20 October 2022. The claimant attended and was accompanied by Gordon Glendinning. Notes were taken by Alexandra Mihai (365ff). In the course of the meeting, Ms Watson raised the question of delays. The claimant had been encouraged to complete a form to obtain a delay when she needed an extra toilet break. This would have the effect of pausing the time taken to carry out an activity, and would be sanctioned by the manager at the end of the shift. The form was available on the warehouse floor and could be completed and left on a desk there. The claimant insisted throughout these proceedings that she was unwilling to place any private medical information on the form. Ms Watson said that the claimant had been given the right to seek a delay but had not used it at all, which caused her to consider whether or not the claimant needed it. She was also of the view that there was no need for the claimant to disclose any medical information in the form, but simply agree with her manager how she would record the delay each time.[71]Following the meeting, Ms Watson wrote to the claimant (374) to confirm that she had decided to issue the claimant with a “verbal/first written/final written warning due to your ‘below expected’ performance. This warning will be placed on your personnel file and will expire 8/13/26 weeks from the date of this letter provided that your performance reaches the expected level and is sustained during this period.”[72]The terms of the letter were unclear as to the nature of the warning being issued and the length of time it would remain on her file, but it is the Tribunal’s understanding that it was a first written warning.[73]The improvement required was: “To improve performance week on week to achieve 85%. Keep unnecessary down time to a minimum. Ensure following correct break procedures. Ensure only asking for legitimate delays.”[74]The letter went on to say that any further occasions of “below expected” performance could result ultimately in her dismissal.[75]The claimant was given the right to appeal against the warning.[76]The claimant’s grievance was heard by Tom McGrorty on 20 October 2022. The claimant attended and was accompanied by Mr Glendinning. Notes were taken by Ms Mihai (386ff). Following that meeting, Mr McGrorty met with Ms Watson on the next day to ask her some questions about the claimant’s position (399). Finally, Mr McGrorty met again with the claimant on 29 October (not November as noted) 2022 (406).[77]Mr McGrorty wrote to the claimant (undated) (409) to confirm the outcome, which was that the claimant’s grievance was not upheld on any of the points raised.[78]The claimant submitted an appeal against this decision dated 20 November 2022 (410). She said: “I can not accept the outcome because it is contrary to the law and Tesco’s policies. I am still in need of help and it does not give any expect a passport to be flexible. I am waiting for this card for almost 6 months and in the outcome there is not any deadline for completion of this task by my manager. When I was transferred from Dagenham DC to Livingston DC I was on support plan. That is why I work permanently in back shift, and I also had two other supports (free taking of my breaks, enter codes to the disabled toilets) which were ceased…”[79]The appeal was heard by Bob MacDonald on 30 November 2022. The claimant again attended with Mr Glendinning. Notes were taken (420ff).[80]Mr MacDonald met with the claimant again on 15 December 2022, following which he wrote to her confirming the outcome of the grievance appeal meeting (453). He confirmed that his decision was that he had concluded that Tom McGrorty’s decision was correct in all circumstances. Attached to the letter (454) was an “Investigation Report”, which set out the findings made at the appeal.[81]Mr MacDonald concluded that the claimant was told that if she needed an extra break, she could take one, and that if she needed adjustments to the system they would be made; she advised that Group 99 was offered to the claimant until she could provide a fit note, but she never did so. He also pointed out that Dagenham had not placed the claimant in Group 99, and that there was no documentation from there which showed that she had been granted additional breaks. He observed that with the claimant’s agreement he had reviewed her Dagenham file.[82]As to her comment that she had not been trained on Layer master, he accepted that she would be so trained “in the new year”.[83]Mr MacDonald specifically addressed the issue of a fit note: “We have asked you to supply a fit note which you have not done so to date, nor supplied or shown any medication or prescription for medicines for your ailments. Your WSTM stated, you sought advice from 3 different union reps who all advised you the same thing. Go get a fit note.”[84]He went on to refer to the other supports which he considered had been put in place. In addition, he pointed out that the request she made to move to Grocery would be contradictory to the OH recommendation of having her placed so far as possible in a colder environment.[85]The claimant appealed against that outcome on 16 December 2022 (455).[86]A Department of Work and Pensions (DWP) assessment was carried out on 25 January 2023 (457) at the claimant’s instigation.[87]It was noted in the report: “At the time of the assessment, Ms Borsos advised she had an occupational health assessment in which specific reasonable adjustments were suggested however, they were not actioned. In order for Ms Borsos to meet the needs and access of her role she requires reasonable adjustments such as picking light boxes, being situated in the goods in department, taking additional breaks in case she experiences symptoms, switching between picking and goods in department depending to her current state at the time, lower performance target and lastly being placed in the colder chamber as the other chamber is too hot which contributes to her sweating excessively and experiencing hot flushes.”[88]The claimant’s appeal (stage 3 grievance) was heard by Robert Milne on 3 February 2023. The claimant attended with Gordon Glendinning. Notes were taken by Donna Nicholls (473ff). The outcome letter was not issued to the claimant until 29 November 2023 (524).[89]Ms Watson wrote to the claimant on 6 September 2023 to invite her to a Reasonable Workplace Adjustment Meeting (493), on 9 September 2023. She confirmed that “The aim of this meeting is for us to understand your underlying health condition/conditions and the impact this is having on you and your work, and whether it would be appropriate to make a referral to Occupational Health (with your verbal consent). We would also like to understand whether there are any reasonable workplace adjustments or support that we can consider to help you.”[90]Following that meeting, the claimant was referred to OH for review, and Ms Watson met with her on 12 October 2023 to discuss the terms of an Adjustment Passport (496).[91]It was confirmed in the passport that the following adjustments had been agreed between the claimant and her manager: “Plus one as default chamber 0 will still need to work in +12 when required. Extra break if required – scan a break card, this will have an impact on performance. *Judit will take an extra break of 15 mins unpaid every day.*”[92]She also confirmed that the claimant had given consent to an OH referral.[93]The claimant signed the passport, as did Ms Watson (499).[94]A further OH report was produced dated 19 October 2023, following a telephone assessment (503).[95]Under “Current Position”, it was noted: “It is medically reasonable for Mrs Borsos to attend work. It is advisable management consider the following suggestions to further assist her in the workplace. The aim is to help provide the flexibility to cope with her symptoms so she can work to the best of her abilities depending on how achieve (sic) her symptoms are; Identifying tasks that the colleague agrees on would be easier for them to cope with on days when limitations are more severe – I understand that she is able to work in the colder areas of the warehouse which does appear to be beneficial for her. She also declared she manages goods in and lighter picks. Supporting her, where possible to do so, to work in the cooler sections of the warehouse Supporting flexibility with comfort breaks as dictated by her symptoms should she experience a hot flush or requires the toilet facilities whilst on shift Supporting a slower pace of working - performance targets may need to be reviewed/reduced to mirror symptom level Monitoring her requirement to complete heavier manual tasks – eg accommodating her on lighter picks/goods in – where feasible to implement Accommodating frequent task rotation throughout the shift to avoid prolonged exposure to the same tasks Monitoring the requirement to move/loft heavier loads – supporting the ability to break down large loads into smaller ones which can be lifted and handled easier Having regular supportive one-to-one meetings to monitor her progress Consider changes or exemptions to workplace policies and rules if they will make a positive difference/reduce disadvantage eg altering attendance tolerance levels, counting time-off relating to disability differently or separately than other time off, allowing the colleague to take extra breaks etc Document adjustments in an adjustment passport so that new/changing managers can be made aware of her health needs at work without her having to disclose personal medical information. Please note, these are recommendations only, and we have discussed that you would need to review the advice to see if this is practical and feasible for you to implement. It is therefore advisable for management to arrange a meeting to discuss what you require from her in a work capacity going forward, and what they perceive they can realistically complete and achieve.”[96]Following receipt of this OH report, Ms Watson wrote to the claimant (508) on 30 October 2023 to invite her to a rescheduled workplace adjustment meeting on 1 November 2023. The meeting took place between the claimant and Ms Watson on 1 November 2023 in the form of a Let’s Talk (509ff).[97]It was noted that Ms Watson had by that stage moved to the Transport section, during the previous week, but told the claimant that she was happy to continue to be in contact with her if required. The adjustments document was completed by Ms Watson and signed by the claimant.[98]In the adjustments checklist (513), it was noted that the suggestions made by the claimant were: “G99 – lifting light boxes Possible to work on goods in more Possible stay in Plus one chamber Possible to get layermaster card if get cramps”[99]In addition, it was noted that temporary short-term adjustments were agreed, namely: “Extra break – break card to stop time Plus one as default chamber”[100]Finally, it was noted that the summary of the adjustment being offered (516) was as follows: “Extra 15 min break every day unpaid. Plus one chamber as default (system will allocate work) operational needs. If work required in plus 12 then need to work there.”[101]Under this section, the question was asked: “Is the colleague agreeing to the suggested adjustments above?”. The answer noted was “Yes”. The claimant then signed the document, as did Ms Watson.[102]On 29 November 2023, Mr Milne wrote to the claimant (524) to confirm the outcome of the final stage grievance appeal.[103]In that letter, he referred to two meetings held about the appeal, on 3 February and 29 November, and wrote: “Firstly, I apologies (sic) for the time taken to conclude this meeting. It is however noted that the time taken allowed for the all the correct documented support to be put in place for you to enable you to perform going forward. This consisted of: Reasonable workplace adjustment meeting 09/09/23 Review of adjustment passport 12/10/23 New Occupational Health report 19/10/23 Workplace adjustment meeting 01/11/23 …During the meeting, I confirmed that I would conduct a full investigation into the concerns you had raised, which we discussed fully. Having now completed my investigation and thoroughly considered the matter I have concluded that your grievance should be partly upheld in respect of the requirement to prove your health condition by way of doctors fit note and the formality of documenting the work adjustment process, which led to you feeling you were not being listened too (sic). Your grievance is not upheld in respect of: The investigating manager can have access to your Tesco file as long as it is relevant to the case he was investigating, which it was. Real support was put in place by your manager. Performance management was being followed and does not stop as you have reasonable adjustments. It is therefore my view that you were not being harassed and that the manager was conducting her job in line with Tesco’ performance. I hope that you are satisfied that I have addressed all of the issues you raised and the explanation provided/outcome, explain that all matters raised have now been addressed in accordance with the Company procedure. This concludes my investigations into the grievance raised and I would like to thank you for bringing this matter to my attention.”[104]Mr Milne attached his investigation report and conclusions (525ff). with regard to the appeal against the previous grievance decision, he found that “…the correct support was put in place from a task rotation, temperature control (working +1 predominantly), Group 99 (lighter duties trial period) and an additional break, plus the ability to leave your job to go to the toilet when needed. These steps were put in place by your line manager. My reason for partly upholding your grievance point is that I feel we should have formalised the agreed actions better through the work adjustment process.”[105]With regard to the claimant’s complaint that she felt she was not being listened to, he found that the claimant had been listened to by her line manager, but that there was “an overbearing reliance on the need to prove your medical condition by getting a fit note and as such, full consideration was not given at your stage 1 and 2 appeal meetings.”[106]Mr Milne did not uphold the claimant’s complaints that she was not getting any real support, and that she was harassed by her manager. He stressed that she required to achieve a desired standard of performance, and that reasonable adjustments were put in place in order to allow her to perform. Her manager was therefore managing her performance, and not harassing her, in Mr Milne’s view.[107]He apologised to the claimant in relation to those aspects of the grievance which he had upheld.[108]On 23 December 2023, the claimant submitted her letter of resignation (527): “Hereby I give my notice to resign from my job at Tesco as a warehouse operative. Since the notice period is 4 weeks my last work day will be 19th January 2024. I resign due to my health condition and a lack of support I received despite the company policies.” Submissions[109]Both parties made brief oral submissions which are not repeated here, but which were taken into consideration in reaching our decision.
The Relevant Law
[110]Section 13(1) of the 2010 Act provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[111]Section 20 of the 2010 Act sets out requirements which form part of the duty to make reasonable adjustments, and a person on whom that duty is imposed is to be known as A. The relevant sub-sections for the purposes of this case are sub-section (3) and (5). Sub-section (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.” Sub-section (5): “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.”[112]Section 21 of the 2010 Act provides as follows: “(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…”[113]The Tribunal also had reference to section 26(1) of the 2010 Act: “A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B…” Discussion and Decision[114]We followed the order of the List of Issues in this case, which were set out in full as follows. i. Failure to provide the claimant with support in relation to her medical conditions up to and including 19 January 2024; ii. Failure to arrange for an Occupational Health assessment for more than 1 year, on or around 1 February 2021; from the claimant’s GP because the respondent said that the claimant may have lied on her occupational health assessment, on 16 December 2022 (an allegedly position of transport clerk was not received, on or around 1 July 2022; v. Failure to agree to the claimant’s transfer to Grocery, on 5 October 2022. 2. Failure to make reasonable adjustments (section 20/21, Equality Act 2010 iii. Allowed a short break, and to stop PI tracking during the break 3. Harassment on the grounds of disability (section 26, Equality Act 2010) i. Subjecting the claimant to performance investigation on 2 June 2022; 20 October 2022; and 112. We take these issues in turn. i. Failure to provide the claimant with support in relation to her medical conditions up to and including 19 January 2024; ii. Failure to arrange for an Occupational Health assessment for more than 1 year, on or around 1 February 2021; from the claimant’s GP because the respondent said that the claimant may have lied on her occupational health assessment, on 16 December 2022 (an allegedly position of transport clerk was not received, on or around 1 July 2022; v. Failure to agree to the claimant’s transfer to Grocery, on 5 October 2022. 113. Before addressing the particular complaints under the heading of direct discrimination, it is appropriate to note that it is understood to be the claimant’s claim that she was treated less favourably than a hypothetical comparator who did not suffer from the disability from which she suffered. 114. The first complaint is a very general complaint, that the respondent failed to provide the claimant with support in relation to her medical[115]The claimant joined the Livingston DC on 1 February 2021. Prior to that date, she had worked in the Dagenham DC for the respondent. She had had no adjustments made for her in relation to her disability in Dagenham, and no support was agreed with her manager there following an OH report in February 2020.[116]However, from the start of her employment in the Livingston DC, the claimant was located in the Fresh department, which involved lighter work than that of the Groceries department. In December 2021, her manager, Ms Watson, agreed following a Let’s Talk that she could be placed in Group 99, which was a category of staff to carry out lighter duties due to medical conditions, and to work in the plus 1 area where possible, a cooler environment than the plus 12 area.[117]The reason she was placed in this group and this area was to take account of her fatigue and hot flushes, consequences of her menopause. Over a period of time, these arrangements remained in place, despite Ms Watson expressing some concern about the lack of medical evidence provided by the claimant to support her assertion as to the conditions she said she suffered from.[118]In April 2022, following a reasonable adjustments meeting, Ms Watson agreed to refer the claimant to OH, and continued the previous arrangements, as well as assuring the claimant that if she needed an extra break due to the effects of her IBS, to go urgently to the toilet, then she could do so.[119]OH recommended, on 30 May 2022, that the claimant should, if possible, be given a number of supports, though only if these were practical and feasible for the respondent to implement. In our judgment, the majority of these recommendations were implemented by the respondent, namely to accommodate tasks to allow for frequent task rotation as dictated by the claimant’s symptoms, limit her requirement to complete heavier manual handling tasks, break down larger loads into smaller more manageable ones, give flexibility with comfort breaks as dictated by her symptoms, reduce her performance targets to mirror symptoms and support flexibility in the work environment, accommodating her in a colder environment.[120]The claimant’s performance was an ongoing issue, in that she was failing to achieve the target of 92PI. However, the respondent granted her a reduced performance target of 84PI, as recommended by OH, in order to allow for the difficulties which her symptoms caused her.[121]The evidence did not clearly disclose that a risk assessment was carried out by the respondent, though it was clear to us that Ms Watson was monitoring the claimant’s activities closely and seeking to accommodate her wish to have lighter duties. The claimant was certainly ready to contact Ms Watson and advise her of how she was coping with her activities. Further, there was no clear evidence that regular supportive one-to-one meetings took place, but the Tribunal was satisfied that Ms Watson was available to the claimant and ready to discuss how she was getting on. They did meet frequently, and in our judgment Ms Watson was supportive in her management of the claimant.[122]Accordingly, it is our conclusion that the claimant was supported by the respondent throughout her employment with them in Livingston DC, by the arrangements which they put and kept in place for her to take account of her disabilities.[123]We noted that the claimant’s argument about lack of support appeared to be based on a number of points.[124]Firstly, the claimant argued that she had had supports in place at Dagenham which were not continued in Livingston. Despite her continued insistence that this was the case, there was no evidence that any support had been put in place at Dagenham by her manager nor any recommended by OH.[125]Secondly, the claimant complained that the respondent had refused or failed to refer her to OH. Clearly she was referred to OH, but not until after she “inundated” OH with direct messages outwith the knowledge of Ms Watson. What Ms Watson wished to see first was medical evidence in support of the claimant’s assertion that she suffered from a number of disabilities, particularly given that she remained at work for long periods of her employment at Livingston DC. Her insistence that this should come in the form of a fit note may have caused a degree of confusion in the claimant’s mind, on the basis that a fit note is usually only available when an individual is unfit to attend work and requires certification of this from their GP, but plainly what Ms Watson was seeking was some form of written evidence – medical records come to mind – which would demonstrate that there was a basis for her assertions about her medical conditions.[126]Thirdly, she complained that she was not given a swipe card to use when she required to take an extra break. We found this evidence very unclear, but essentially it was a matter which did not, in our judgment, affect the claimant’s ability to take a break when she needed to go to the toilet due to her IBS. If she had to depart from the working area for a short time, she could apply to her manager for a delay by marking the relevant time on a sheet at a station on the floor. Her objection to doing this was that she did not want to disclose private medical information on a document which was available for others to see. While that is an understandable concern, the reality is that she did not require to disclose any medical information on the sheet. All she had to do was mark the time taken and advise that she had notified her manager, who would be aware of the reasons.[127]Fourthly, she complained that the respondent failed to reduce her performance targets appropriately. In our judgment, this is incorrect. Her performance target was reduced to 84% at the point when all other staff were expected to achieve 92% (or PI). When the performance target was reduced to 85% for all staff, hers remained at that level. The respondent’s explanation for this was that she was already on a reduced target, and that no further reduction could be accommodated.[128]Our understanding was that the claimant considered that it was a mark of the respondent’s lack of support that they continued, throughout her employment, to stress the requirement upon her to meet performance targets which were set for all staff. We did not uphold this view. In our judgment, the respondent is entitled to monitor and seek to improve the performance of a staff member like the claimant who is failing to meet the necessary targets. They did accommodate her by granting her an earlier reduction than others. The difficulty for the claimant in this argument is that she consistently failed to meet the adjusted target, despite other adjustments being put in place for her.[129]We would also observe that the claimant has failed to demonstrate that a non-disabled employee in the same circumstances would have been treated better than she was. The process of monitoring performance of staff in the warehouse is a standardised process, implemented by the use of handheld computers attached to the employee’s wrist, which dictates what work they are supposed to be doing, and how long they are supposed to take. Each employee’s performance is measured against targets, and there is no evidence whatever to suggest that another employee would not have been dealt with in the same way as the claimant. Given the adjustments which were consistently put in place for the claimant, we cannot reasonably come to the conclusion that the claimant was treated less favourably than a non-disabled person; indeed, she was granted certain rights – correctly in our view – which were not given to those not suffering from disability, such as being given lighter duties, placed in plus one rather than plus twelve where possible and given extra breaks when required.[130]The claimant did make reference in her claim to a number of others, whose names were Alexander and Rab, Sharon, Erkan and Ms Watson, but did not prove that she had been treated less favourably than those individuals on the grounds of disability. It appears that she was arguing that certain individuals shared her disability of menopause, but were allowed certain adjustments which she was not allowed. Of course, if they shared her disability they would not be appropriate comparators in a claim of direct discrimination, since the reason for any different treatment could not be her disability. We were not persuaded that the evidence given by the claimant could be supported and therefore we did not consider that the claimant was treated less favourably than those whom she named in her claim, but in any event we were not persuaded that she was treated less favourably than any other person not sharing her disability on the grounds of her disability.[131]The second and third complaints relate to the delay in arranging for an OH appointment for over a year, and requiring medical documents from the claimant’s GP in order to assess whether or not the claimant may have lied on her application form.[132]In our judgment, these complaints do not have substance. While it is true that there was, for a period of some months, a stand-off between the claimant and her manager about her willingness to disclose medical evidence from her GP about her medical conditions, and it was perhaps unfortunate that the respondent chose to ask her repeatedly for a fit note from her GP when that would be unlikely to be obtainable, it was not unreasonable for the respondent to seek confirmation from an independent medical source that the conditions she relied upon did exist. The claimant had not been absent from work by this time, and accordingly there was no medical certification available to confirm that the medical conditions she relied upon were those from which she suffered. There was never a serious suggestion that the claimant had been thought to have lied on her application form, but an assertion that certain adjustments require to be put in place to account for a medical condition or conditions must be supported by some form of medical support, in whatever form that came. The claimant’s refusal to disclose medical evidence did give rise to concern on the part of the respondent, who wished to obtain this information before using the resources of their OH provider.[133]In any event, we are unable to find that the respondent’s actions were in any way directly discriminatory against the claimant in comparison with a non-disabled person. The requirement to provide medical evidence by an employee is a legitimate one where that employee is seeking to receive certain benefits amounting to adjustments because of those conditions. Further, it would be necessary to understand what the effect of such conditions in the workplace upon the claimant would be, and a GP would be likely to provide such information in a helpful manner.[134]The claimant complains that there was a failure to tell her that her application for the position of transport clerk was not received in July 2022. The evidence on this was very sparse. Ms Watson, whom we found to be a credible and reliable witness and therefore whom we believed, said that she took the application form and handed it directly to the transport department. As a result, she did not know that the application form had not been received in the appropriate place; she believed the opposite. We heard no evidence from the transport department as to what happened to the application, other than that it was apparently asserted that they had not received it.[135]We did not consider this to be other than an unfortunate error, though at whose hands we could not say. There is no evidence at all that this was related to the claimant’s disability, and accordingly, we have concluded that this was a simple error, amounting to the loss of an application form, which did not amount to an act of unlawful discrimination.[136]Finally under this heading, the claimant complains that the respondent’s failure to agree to her transfer to Grocery in October 2022 amounted to direct discrimination. We deal with this in short compass. The claimant’s request to work in Grocery was simply incomprehensible. She had been deployed in Fresh in order to avoid having to lift heavier weights. To move her to Grocery would have committed her to working in an area where the temperature was less well controlled, and where the items to be moved were considerably heavier. The respondent’s position was that this was inconsistent with her disabilities, and they could not grant the request without acting contrary to her own interests.[137]We have concluded that to refuse her request to move to Grocery was entirely legitimate, in light of all the circumstances, and did not amount to less favourable treatment on the grounds of disability by the respondent against the claimant.[138]It is therefore our judgment that the claimant’s claim of direct discrimination under section 13 of the 2010 Act must fail, and be dismissed. Failure to make reasonable adjustments (section 20/21, Equality Act 2010 iii. Allowed a short break, and to stop PI tracking during the break[139]The first question is whether the respondent applied a PCP of expecting the same performance from a person who had the same conditions and targets as the claimant.[140]It is clear from the evidence that up until approximately 30 June 2022 the claimant’s performance target was lower than that of colleagues who did not have a disability and therefore did not require reasonable adjustments. Her target during this period was 84% against a standard target of 92%. Accordingly, in the period up to the end of June 2022, the respondent was not expecting the same performance as someone who did not have the same conditions as the claimant.[141]The terms of the PCP as drafted are confusing. It may be that what was meant was that the PCP was requiring the claimant to meet the same performance targets as all other staff regardless of disability. We heard no evidence that there were any other staff with the same conditions as the claimant.[142]There was a period where the claimant was, after June 2022, expected to achieve the same performance as others (85%) as this was standardised across the organisation. However, the PCP appears to compare her treatment to that of other people with the same conditions and targets as the claimant. We did not hear of any comparator who suffered from the same conditions as the claimant. There are, we understand, a number of other individuals suffering from the effects of the menopause, but we did not hear evidence to the effect that any of those individuals also suffered from hyperthyroidism or IBS.[143]In any event, the substantial disadvantage relied upon by the claimant was that she was not able to make the same targets as a healthy or non-disabled colleague.[144]We did not find that the claimant suffered from that substantial disadvantage as a result of her disability. There is no doubt that as a matter of fact the claimant failed to meet the targets set for her, even when reduced to 84% as compared with 92% for a healthy colleague, and continued to do so when the target was standardised for all staff at 85%. However, we were not persuaded that the claimant failed to meet those targets because of her disabilities. She was given certain adjustments, such as being able to take an extra break to go to the toilet, but she did not have access to that adjustment. Her position was that she did not wish to do so but in our judgment, the claimant was struggling to meet the adjusted target which had been lowered for her initially, and continued to do so when all others’ targets were similarly reduced, but not for reasons relating to her disability. It was not proved by the claimant that her failure to meet her targets was related to her disability.[145]Further, the adjustments which the claimant sought were to stay permanently in “goods in”, to be retrained in skill handling layer master and to be allowed a short break to stop PI tracking.[146]The respondent gave consideration to these requests.[147]They were unable to grant the claimant’s request to stay permanently in “goods in”, simply because the claimant was an employee subject to the performance tracking requirements of all employees, and could not be guaranteed work for her full hours in the one department. There had to be flexibility in allowing the respondent to move her to a different department. We considered that the respondent provided the claimant with a reasonable adjustment by starting her in the plus one area of goods in, and only moving her elsewhere when there were no more tasks in that area to be covered. An adjustment requires to be reasonable, not all-encompassing, and in this case we considered it to be reasonable.[148]The respondent agreed that the claimant should be retrained in the layer master equipment. However, the evidence demonstrated clearly that she was never given that training. The respondent were unable to provide the claimant with training before it became clear that a new form of machinery was to be used, which would not alleviate the claimant’s difficulties. There is nonetheless no doubt that this was agreed as a reasonable adjustment; it was simply impracticable for the respondent to implement it.[149]The respondent granted the claimant an extra break each afternoon, if required. It is not clear that the claimant ever took advantage of this break, suggesting that it was not in fact required by her. In any event, the respondent had already reduced her performance target.[150]We did not consider, accordingly, that the claimant’s claim that the respondent had failed to make reasonable adjustments for her had been proved, and therefore this claim fails and is dismissed. Harassment on the grounds of disability (section 26, Equality Act 2010) i. Subjecting the claimant to performance investigation on 2 October 2022; and[151]The claimant was invited to a formal performance investigation meeting with David Ewart on 2 June 2022, and thereafter to a disciplinary hearing on 8 June 2022 before Alex Forrest.[152]The claimant asserts that these decisions – “subjecting” her to these processes – amounted to harassment on the grounds of disability. While it is clear that the claimant was not happy that she had been invited to these meetings, and that she felt that she was being placed in an unfair position, the respondent decided to proceed down this line because she had been consistently performing well below the performance target for a period of 3 months (76.7% against a reduced target of 84%), despite being granted certain adjustments such as being on Group 99 for that period.[153]While it was plainly uncomfortable and upsetting for the claimant to be asked to attend formal meetings, she was given the opportunity to be represented at both, and to set out her response to the allegations laid against her. Ms Forrest took no formal action against the claimant following the disciplinary hearing, advising that she should discuss the OH report and support required with her manager (Ms Watson). The only outcome, therefore, was a continuation of the ongoing process of monitoring, discussion and support for the claimant.[154]There is no evidence that the meetings were conducted by Mr Ewart and Ms Forrest in a manner which was detrimental to the claimant, such as to violate her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. It is the simple fact that the respondent escalated their concerns about the claimant’s performance which has been the focus of the claimant’s complaints.[155]In our judgment, the respondent was entitled to invite the claimant to these two meetings. An employer is entitled to expect a level of acceptable performance from an employee, and in this case both parties were clear that daily performance would be closely monitored against an expected target. In this case, the claimant was expected, reasonably in our judgment, to meet a lower performance target given the understanding that the respondent had of her disabilities. However, the respondent could not alleviate the claimant entirely of her responsibility to make a significant contribution to the business under her contract of employment. Given that she was failing to meet the reduced target, notwithstanding that she had been placed in Group 99 over a period of 3 months, we did not consider that the respondent acted in a manner amounting to harassment in inviting her to these two meetings.[156]In any event, since the outcome was that no formal action would be taken against her, the process operated in a manner which was open, fair and clearly not predetermined; in other words, there was no detriment to the claimant in the manner in which the meetings were conducted or the decisions thereafter reached.[157]It is our judgment, however, that there is no basis upon which it can be said that to invite the claimant to these two meetings amounted to harassment on the grounds of disability. She was not invited to the meetings for any reason related to her disability; she was invited to the meetings to discuss her performance, which was below the targets set by the respondent. Her disability was taken into consideration in the discussions at the meeting, and it appears that that was a significant factor in the decisions made thereafter.[158]Insisting on a recommendation that the claimant’s GP produce recommendations or documents to support the claimant’s statement that she was suffering from an illness, in October 2022, did not amount to harassment on the grounds of disability either, in our judgment. The claimant had asserted over an extended period of time that she was suffering from disabilities. An employer in those circumstances is entitled to require the claimant to provide medical evidence in support of her assertions. While there was evidence available from the OH department, it is not unusual in the experience of this Tribunal for an employer to seek evidence from the claimant’s GP to support her factual assertions.[159]It is true that the claimant was being regularly asked to produce a fit note, which would be unusual in circumstances when she had not been absent from work for ill health reasons. However, the claimant had not been absent from work, and accordingly the only information the respondent had came from the OH department, and it was not unreasonable for them to seek confirmation from the claimant’s GP. We did not consider that this amounted to a suggestion that the claimant was not telling the truth about her disability, but that the respondent requires to maintain a record of the adjustments put in place for employees and the reasons for those adjustments. As a result medical evidence was an important part of the information sought.[160]We did not consider that this request could be regarded as harassment on the part of the respondent, on the grounds of disability. Even if the claimant’s position were that she considered that this violated her dignity, we did not find that this amounted to a reasonable reaction to such a request. In any event, it is plain that the respondent continued to treat the claimant as if she were disabled for a considerable period of time before October 2022, and put in place adjustments for her. As a result, they acted in a manner which was supportive, rather than harassing, and we did not consider that their actions in this regard were anything other than reasonable.[161]As to the meeting of 20 October 2022, the claimant argues that summoning her to that meeting, and giving her a verbal warning thereafter, amounted to harassment on the grounds of disability.[162]It is noted that the first invitation to a disciplinary meeting took place on 8 June 2022, and that the claimant was invited to a formal capability review on 20 October 2022. The claimant had had adjustments put in place for her during that period, and yet her performance had continued to fall below the target of 85%. At the conclusion of that meeting, the respondent issued the claimant with a verbal warning, the most moderate of the options available to them, and having reviewed her performance and the manner in which she was going about seeking delays, taking breaks and using down time, advised her that she needed to improve these areas of her performance.[163]We do not consider that these steps amounted to harassment on the grounds of disability. In our judgment, the same steps would have been taken for a non-disabled employee who was consistently failing to meet the performance target applied to them, and therefore there is no link to the claimant’s disability in the invitation to the formal capability meeting or the issuing of a verbal warning. This was a matter relating to the claimant’s performance, against a target which was initially reduced to take account of her disability. The respondent was regularly meeting with the claimant in order to establish how she was progressing, and how the supports put in place were being used and affecting her performance.[164]We do not consider it to be an objectively reasonable reaction on the part of the claimant to treat these acts as acts of harassment. Again, while it is understandable that an employee would be dismayed at being taken to a formal review, and issued with a verbal warning, there is no basis, in our judgment, for the claimant to view her treatment as amounting to harassment on the grounds of disability.[165]It appeared to us that the claimant resented having any performance targets at all, and that she felt that she was unable to reach her performance targets for reasons outwith her control. In our judgment, the respondent was entitled to reach a different conclusion, and to put in place a warning, at the lowest level, in order to encourage her to improve her performance and understand why the respondent was concerned that she was failing to achieve her performance.[166]In our judgment, these actions did not amount to harassment on the grounds of disability.[167]It is therefore our conclusion that the claimant’s claims all fail, and are dismissed.[168]We would wish to record our thanks to the claimant and to Mr Milne for their courtesy in the manner in which they conducted their cases before this Tribunal.