Ms M Hunter v North Lanarkshire Council: 8000621/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000621/2025
Between
Ms M HunterClaimantNorth Lanarkshire CouncilRespondent
Before
Employment Judge B CampbellMs K Howard (instructed by Solicitor) for respondentDate 27 January 2026
JUDGMENT
[1]The claimant had a disability as defined in section 6 of the Equality Act 2010 by way of Attention Deficit Hyperactivity Disorder (ADHD) combined type at the material time for the purposes of her claim, and[2]The claimant’s complaints based on possessing the protected characteristic of disability will proceed to the full hearing as listed.
REASONS
Conclusions
[1]This claim arises out of the claimant's employment with the respondent which, the parties appear to agree, ended on 1 November 2024. She alleges constructive unfair dismissal under section 94 of the Employment Rights Act 1996, discriminatory dismissal under section 39 of the Equality Act 2010 (‘EqA’) and a failure to make reasonable adjustments under sections 20 and 21 EqA.[2]The claimant relies on the protected characteristic of disability within section 6 of EqA. The condition founded upon is Attention Deficit Hyperactivity Disorder (ADHD) combined type. The respondent does not accept she had such a condition to the extent that it qualified as a disability under the Act. In particular it does not accept that such condition had a substantial and longterm adverse impact on her normal day-to-day activities.[3]This preliminary hearing had the sole purpose of determining whether the claimant was a disabled person in that statutory sense.[4]The period of 3 December 2023 until 1 November 2024 was treated as the ‘material time’ for the purpose of assessing whether the claimant had a disability. This covers the dates of all events and acts she refers to in support of her complaints.[5]The claimant represented herself at the hearing. The respondent was represented by Ms Howard. The parties had helpfully prepared a joint bundle of documents pursuant to case management orders which had been issued. Where it is necessary to refer to any pages within it below that is done by using the relevant page number or numbers in square brackets.[6]The claimant is a qualified and practising solicitor. She appears in the civil court in the course of her work. She was able to present her case in a clear way. She gave evidence and was cross-examined by Ms Howard in the usual way. After a short break the parties gave oral closing submissions. I said that I would reserve my decision and issue it with reasons in writing, which I now do. I considered the parties’ submissions, including relevant case law authorities, in the course of reaching the decision below although they are not referred to in full. Legal issues As this was a substantive preliminary hearing on a discrete issue the question to be decided was restricted to the following:(1) At the material time, being 3 December 2023 to 1 November 2024, was the claimant a disabled person within the scope of section 6 of the Equality Act 2010, in that: (a) she had a physical or mental impairment; (b) that impairment had an adverse effect on her ability to carry out normal day to day activities; (c) that effect is or was substantial; and (d) the effect is or was also long-term. APPLICABLE LAW 1. Disability is a protected characteristic under the Act. Section 6 defines disability for legal purposes as follows: 6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. 2. A person is therefore disabled in a legal sense if they have, or had, a disability as defined. 3. UK Government guidance has been published covering matters to be taken into account when determining questions relating to the definition of disability. The latest version is published by the Office for Disability Issues and is referred to below as the 'Guidance'. The Equality and Human Rights Commission has issued an Employment Statutory Code of Practice (‘Code’) which employers and tribunals may also consider when judging whether a disability exists and, if so, the way and extent to which it should be accommodated.
Relevant facts
[1]It was not the purpose of this hearing to make definitive findings of fact in relation to the claimant’s legal complaints. That is part of the role of the tribunal at a future full hearing. However it was necessary to record some matters which were accepted as fact and to make some findings in order to decide the preliminary issue of disability status. As such, the matters below are believed to be relevant to this hearing and that preliminary issue but are not intended to go beyond that and bind a tribunal at a full hearing in relation to the separate issues it will have to decide.[2]The claimant was employed by the respondent for approximately two years, ending by way of her giving notice on 22 October 2024 which took effect on 1 November 2024. She worked as an in-house solicitor. The respondent is a local authority. The claimant became pregnant some time in the second half of 2023 and gave birth to her child in May 2024. She experienced pregnancy related conditions or symptoms which caused her to either be absent from work, or partially fulfilling her duties from home, from the beginning of 2024.[3]The claim centres around an alleged change to the claimant’s working pattern which was announced on 3 December 2023 and implemented in April 2024. The claimant was not working at the time because of her health, and then the following month began her period of maternity leave. She says that she expected to return before the end of 2024, but because she could not comply with the working pattern change, and the respondent refused to agree to an adjusted version of it, she resigned.[4]The claimant submits that she has the condition Attention Deficit Hyperactivity Disorder (ADHD) combined type, which is referred to in this judgment as the ‘condition’. The condition was diagnosed on 18 July 2022 by a Clinical Nurse Specialist named Carole Hughes, employed by ADHD Direct Limited. This is a private sector company. The claimant sought an assessment for the condition from her GP but was told that as she was not a child it would not be practicable to obtain one via the NHS, and was recommended this company as an alternative.[5]According to Ms Hughes’ report of the above date [54-61] a number of recognised assessment tools were used to reach a decision on diagnosis. The claimant said that there had been three meetings with Ms Hughes, at least one of which lasted over two hours. The claimant’s mother and fiancée also each completed a questionnaire giving details of how they observed the claimant in the previous six-month period [52-53]. Ms Hughes is described as ‘a registered Mental Health Nurse with the Nursing and Midwifery Council (NMC). I have been qualified since 1996 and worked in a variety of NHS CAMHS settings in Scotland and England. I am a qualified Independent Prescriber and have completed training in psychological therapies. My qualification allows me to diagnose and treat ADHS as per Scottish Intercollegiate Guidelines Network (SIGN 112).’[6]Ms Hughes proposed some follow up sessions with the claimant. There were some telephone calls between the two, but the focus was to become the medication that the claimant might take to alleviate her reported symptoms and she wished to become pregnant, which ruled out the taking of such medication. There was also the issue of ongoing cost.[7]The claimant entered the care of a local authority Community Mental Health Team and consulted with a number of psychiatrists. Owing to her pregnancy and subsequent breastfeeding of her child she did not take any medication until around October 2024 when she began taking the drug Elvanse. She found that its effects did not last the full day and was switched to Xaggitin. She later moved back to Elvanse which she continues to take. The effect is to curb some of her impulsivity, such as craving unhealthy food, and also to regulate her emotional state so that she does not become tearful so often when experiencing some of the effects she describes. It also prevents her becoming as tired. The medication does not prevent the underlying symptoms or situations she experiences, but helps reduce their effect on her mentally, physically and emotionally. By May 2025 she was described by her psychiatrist as ‘stable’ and was discharged from the mental health team.[8]The claimant provided an impact statement [92-96] which she supplemented by oral evidence. She said that she had ‘struggled my whole life with ADHD’ and that her parents had sought medical input when she was a child, but a diagnosis was not made. She presented as constantly tired, had delayed speech and was slow to learn despite intelligence appearing normal. As a teenager she recalled she was anxious but was misdiagnosed as suffering from depression. She had to abandon her sixth year at high school, take a year out and return to complete her exams. She went to university to study law, was successful in her first two years and again could not cope in her third, dropping out and coming back to complete the course in a later year. Both times she said the demands were too stressful. She says that she recognises that she had the symptoms described in her impact statement since she became a teen, but they have become magnified as she took on the greater responsibilities of adulthood.[9]Some of the ways in which the claimant says she was impacted by her condition are described in section (b) of her impact statement. Factually they were not challenged by the respondent and they are accepted to be true. The claimant said that this was how she was ‘at the time of these events’ which she clarified to mean the material time. Only at the end of that period did she begin taking medication, and after then she experienced the same symptoms, but was able to cope with them better as described above.[10]In short, some effects that the claimant experienced were:a. Poor working memory – in her personal and work life she was known to be forgetful and lost items repeatedly. She could forget where she left a set of keys more than five times in a day. She struggled to follow longer conversations at work and remember them back afterwards. To help with this she would note down what people said as they went along. She had difficulty taking and following instructions. She forgot key dates and relied on others to remind her, or had to maintain a detailed planner. She would mask her difficulties which was tiring and stressful;b. Inattention – she repeatedly made mistakes in her work, even when tasks are easy or familiar. She double- and triple-checked work;c. Restlessness and distraction – she found it difficult to focus on a task for any length of time, such as a hearing or training session. She could not watch a film or a television programme lasting much more than half an hour before becoming distracted or forgetting what she had seen. She would at times speak too quickly and have to try and regulate her speed. She would drift off-topic when speaking and interrupt others. She experienced multiple thoughts constantly which she found difficult to control, and which was tiring. This affected her ability to go to sleep, and if she woke in the night her mind would start up again. She was hypervigilant;d. Impulsivity – she would say things she knew she should not say to others, which she felt impacted negatively on friendships, relationships with those close to her and colleagues at work. She was poor at managing money and would overspend. As a measure against this she had her earnings paid into a joint account with her partner and then was allocated money to spend.[11]The claimant said that she relied heavily during this period on her mother, who is retired, and her partner. Both undertook activities daily such as cooking and cleaning for her as she was constantly exhausted.[12]As stated, Ms Howard did not substantially challenge the claimant’s evidence, but focussed on whether it was sufficient to meet all of the criteria of the definition of disability in section 6. She put to the claimant that:a. more medical material could have been provided but was not;b. the material which was provided fell outside the relevant time (coming either before or after the events relied upon in the claim);c. the questionnaires provided by her mother and partner were not consistent with each other as to observed symptoms and effects;d. the claimant had not differentiated any effects of her condition from those of either being pregnant or the mother of a newborn baby;e. the claimant’s recollection of events was not fully reliable;f. many of the effects she described are things which the population generally experience, without qualifying as a disability;g. she effectively used coping mechanisms; andh. that the claimant was able to function at a high level in a number of ways, such as holding meetings, appearing in court and prioritising her workload according to deadlines. Discussion and decision[13]The legal question to be determined was whether the claimant was a disabled person at the material time for the purposes of her claim, being between 3 December 2023 and 1 November 2024.[14]As is made clear by the Employment Appeal Tribunal in Goodwin v Patent Office [1999] IRLR 4, an employment tribunal should approach the four key questions relating to disability status in order. The questions are:a. Does the claimant have a physical or mental impairment;b. Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities;c. Is that effect substantial; andd. Is that effect long-term?[15]It was later added in J v DLA Piper UK LLP UKEAT/0263/09 that it can in some cases be helpful to consider the effect of an alleged impairment before deciding whether there is an impairment. This may be so particularly in cases involving a claimed mental impairment which is disputed.[16]The onus is on the claimant to establish that each factor was present at the material time. She submits that she has met the requirements of EqA since becoming a teenager, and at least since 18 July 2022. Physical or mental impairment[17]It is the impairment itself which matters in a legal sense rather than the existence of a medical condition by name, or a diagnosis. In other words, 'ADHD' could amount to a mental impairment or not depending on the details and circumstances of the particular case.[18]The Guidance suggests that the term 'impairment' should be given its ordinary meaning (paragraph A3). It does not go on to provide a definition, but the word is commonly understood to mean a reduction or weakness in a particular thing.[19]As stated above, it is for the claimant to show that she had a mental impairment at the material time. The respondent denies that she had. The Guidance recognises that impairments can exist in different ways, and specifically gives as an example:• developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia,• 'Mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders, bipolar affective disorders, obsessive compulsive disorders, personality disorders, post traumatic stress disorder, and some selfharming behaviour;' and• 'Mental illnesses such as depression and schizophrenia' (para A5).[20]There is sufficient evidence in this case to establish that the claimant had a mental impairment. She had been diagnosed with ADHD in 2022 by qualified and experienced individual, which subsequent medical practitioners including her GPs and treating psychiatrists did not question.[21]That said, it is the effect of the condition which matters. Considering the evidence in light of the guidance in Goodwin and J v DLA Piper and focussing on the material time for the purposes of this claim, the claimant’s evidence of the symptoms she experienced was more than adequate to qualify as an impairment. This was manifested in ways such as poor memory and concentration, making mistakes, heightened anxiety, exhaustion, a tendency to be distracted and impulsiveness. Effect of impairment on ability to carry out normal day to day activities[22]In this claim, consideration of the effect of the claimant's alleged impairment is closely related to the existence of the impairment, as was recognised may be the case in J v DLA Piper. The impairment founded upon does not have a universally recognised set of symptoms or effects which all apply equally to each person diagnosed, although some are common. She requires to show what the effect of that alleged impairment is on her own particular ability to carry out normal day to day activities.[23]Through her own evidence before the tribunal and the documents she provided the claimant was able to establish that her mental impairment had an adverse effect on her ability to carry out normal day to day activities.[24]The EqA does not define 'normal day to day activities'. The Guidance says that in general they are 'things people do on a regular or daily basis'. Examples given there include reading and writing, watching television, having a conversation, preparing and eating food, carrying out household tasks and taking part in social activities. They can also include some of the more universal work-related actions such as interacting with colleagues, following instructions, preparing documents and keeping to a timetable. The claimant's evidence points to each of those activities being adversely affected.[25]The Guidance provides examples rather being prescriptive. The claimant was nevertheless able to provide evidence of a number of affected activities which are normal day to day activities. It is therefore accepted that the claimant was adversely affected in her ability to carry out a sufficient number of normal day to day activities by her alleged impairment. Was the effect of the impairment substantial[26]The effect of the alleged impairment must be substantial. Section 212 EqA confirms that substantial in context means 'more than minor or trivial'. That is not a particularly high threshold.[27]The effects of the claimant's impairment are deemed to be substantial on the evidence in this case. Most if not all occurred on a continuous basis. Together they affected her quality of daily life. They were frustrating, tiring and stressing.[28]The claimant relied on various coping mechanisms, such as allowing herself more time to complete work tasks, having work reviewed by others, entrusting family finances to her partner and relying on him and her mother to carry out daily domestic tasks. However, those did not completely negate the effects of the condition. For example, they did not prevent her from being anxious or hypervigilant, or at times exhausted or unable to concentrate on a television programme, or from misplacing objects in her home.[29]Taking medication from October 2024 was recognised to improve the claimant’s ability to cope. But it did not ‘cure’ the symptoms, and the correct test to be applied is one which takes medication out of the equation – paragraphs B12-17 of the Guidance.[30]The tribunal accepted that the claimant could have presented outwardly as less significantly affected by her condition. However, the additional time she had to spend on work and the effects of masking behaviour were particularly tiring for her and had the effect that she could not deal with other activities in her home life, such as cooking, washing and cleaning. That is relevant, as the Guidance points out, for example at paragraphs B2 and B3. The overall effect may have been more substantial than the respondent was reasonably able to detect by observation. This may be a matter for evidence in the full hearing however. Was the effect long term[31]Long term in this sense equates to having lasted at least 12 months, or being likely to last 12 months at the time the test is applied, or being likely to recur or to last for the remainder of the individual's life.[32]On the claimant’s oral evidence she was affected as far back as the early 2000’s, although that came only from herself (in this hearing at least, although she explained how her mother had similar thoughts). This evidence lacked detail as to the nature and extent of its effect, so that it could not be said to meet all of the criteria of a disability at that time. Clearly however the condition became more permanent and debilitating in later years.[33]By 2022 and the time of the diagnosis the picture had become clearer. The claimant had already been experiencing the symptoms to some degree for some 20 years, she had failed to complete her sixth year at school and then her university degree at the first attempt. She was affected on a daily basis.[34]Importantly, it is the substantial effect of the impairment which must be shown to be long term, not the underlying condition itself, which is likely to have lasted longer but with a lesser effect. Based on the evidence provided, it can be ascertained that on the balance of probability the claimant's condition had a substantial effect on her normal day to day activities from 18 July 2022, if for no other reason than the position was documented at that time as such as part of the diagnosis process. By the time of the events on which the claim is based that had persisted for two years. It had therefore become long-term by then.
Conclusion
[35]I did not find any of Ms Howard’s arguments, though well presented, to be sufficiently persuasive in displacing the clear evidence of the claimant. A finding of disability status is made on the balance of probability, and the amount of material produced by the claimant, together with her own evidence, was sufficient for that purpose. She did not require to go further by, for example, producing raw data which fed into the report of Ms Hughes, who on the face of it was adequately qualified to conduct her assessment. The questionnaires completed by the claimant’s mother and partner were not contradictory, but merely expressed a thematically similar picture from two different viewpoints. The claimant’s recollection was not unreliable as was suggested, and it was detailed enough to show that the claimant experienced the symptoms relied upon both before and after pregnancy and becoming a new mother. Her evidence showed clearly that what she experienced went beyond the commonplace failings and frustrations of people at large, such as misplacing items, forgetting important dates and losing concentration when dealing with mundane tasks. The reference to the claimant’s ability to fulfil some of the more skilled and demanding aspects of her role as a solicitor risked falling foul of the advice in the judgment of the EAT in Stedman v Haven Leisure Limited [2025] EAT 82, referred to by both parties, as well as earlier authorities, that ‘it is not permissible to weigh up a claimant’s ability to carry out one day-to-day activity against another day-to-day activity in order to arrive at some overall assessment of ability to carry out day-to-day activities generally’.[36]The claimant has provided sufficient evidence to establish that she was a disabled person within section 6 of EqA since at least 18 July 2022. In all likelihood she met the criteria before that diagnosis date, but it is not necessary to go further back as it is sufficient for her complaints under EqA to proceed that she was disabled for the whole of the material time, which she clearly was. Those complaints will now be decided at a full hearing which is understood already to be listed for dates in August 2025.
Findings of Fact
[37]The claimant’s baby was born on 26 May 2024 by emergency c-section. Both the claimant and her baby were very unwell for a period after the birth. It took 3 to 4 months for things to come under better control and for the claimant’s health to start to improve.[38]The claimant had not made a final decision as to when she planned to return from maternity leave and had not notified the respondent of a return to work date or discussed with them the details of a return to work.[39]In or around September 2024 the claimant started to look for alternative employment as she did not want to return to working the new hybrid working pattern. The claimant applied, via a recruitment consultant, for a job with a law firm that allowed her to work permanently from home. She was offered that role in October 2024 and decided to accept the job and to therefore resign her employment with the respondent.[40]On 22 October 2024 the claimant telephoned Ms Kirkhope and informed her that she wished to resign from her employment. The claimant gave a number of reasons for her resignation, including that the hybrid working scheme was confusing regarding working days in the office, that she and her partner only had one car and so it would be difficult to go into the office on the days her partner needed the car, that she had just had a baby and wanted to work from home full time, and that she had applied for and accepted another job with a law firm working entirely from home. Ms Kirkhope explained that the claimant would need to log into the respondent’s online system to log her resignation. She explained that there was then a cooling off period so that if the claimant logged her resignation but then changed her mind she should let Ms Kirkhope know in case there was anything they could do about it. The claimant then explained that the new job that she had been offered started in a week and a half’s time and that, whilst she appreciated she had a four week notice period, she would not be able to honour that.[41]The day after the claimant’s conversation with Ms Kirkhope, the claimant’s new firm contacted Ms Kirkhope for a reference. Ms Kirkhope later agreed that the claimant would not need to honour her full notice period and her employment with the respondent therefore terminated as of 1 November 2024. The claimant started her new employment on 4 November 2024. The relevant law Constructive dismissal[42]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996 (‘ERA’). Section 94(1) states that an employee has the right not to be unfairly dismissed by his employer. Section 95(1)(c) states that an employee is dismissed if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is commonly known as “constructive dismissal”.[43]In Western Excavating Ltd v Sharp 1978 IRLR 27, the Court of Appeal set out the general principles in relation to constructive dismissal. Lord Denning stated that “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[44]It is well established that there is an implied term in every contract of employment of mutual trust and confidence between employer and employee. In Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, the term was held to be, “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[45]The claimant must prove that she resigned in response to the breach of contract but the repudiatory breach or breaches need not be the sole cause provided they are an effective cause. Where there is more than one reason why an employee left a job it is necessary to examine whether any of them was a response to the breach, and not necessarily the principal or main cause of the resignation (Wright v North Ayrshire Council 2014 IRLR 4).[46]An employee may lose the right to rely on any fundamental breach if she delays in terminating the contract and is considered to have affirmed the contract after the breach. Failure to make reasonable adjustments[47]Under section 20 EqA, employers are required to make reasonable adjustments to alleviate any substantial disadvantage experienced by employees with disabilities. Section 20 provides that the requirement applies where a provision, criterion or practice (PCP) has been applied by the employer that puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The definition of ‘substantial disadvantage’ is something that is ‘more than minor or trivial’ – s.212(1).[48]A failure to comply with any of the requirements in section 20 amounts to a failure to comply with the duty to make reasonable adjustments, and an employer will have discriminated against a disabled person if it fails to comply with the duty in relation to that person – section 21(1) and (2).[49]An employer has a defence to a claim for breach of the statutory duty if it does not know and could not reasonably have been expected to know that the disabled person is disabled and/or is likely to be placed at a substantial disadvantage by the PCP (Paragraph 20 of Schedule 8 EqA). The EAT set out in A Ltd v Z [2020] ICR 199 the relevant principles for determining whether an employer had actual or constructive knowledge of a disability or substantial disadvantage.[50]In Environment Agency v Rowan [2008] ICR 218 the EAT stated that when considering a failure to make reasonable adjustments claim, the tribunal must firstly identify the PCP applied by the employer and the nature and extent of the substantial disadvantage suffered by the claimant.[51]The tribunal must consider the nature and extent of the substantial disadvantage relied on by the employee, make findings as to the state of the employer’s knowledge of the nature and extent of that disadvantage, and assess the reasonableness of the adjustment that it is asserted could and should have been taken in that context. The parties’ submissions[52]The claimant and the respondent both gave oral submissions. I do not intend to repeat the full detail of those submissions here, save to summarise some of the key points that were highlighted.[53]The claimant asserted that the new hybrid working scheme, a fixed 5 day rotational working pattern which required hybrid staff to attend the office on three consecutive days at the end of one week, followed by two consecutive days at the start of the next week (the PCP), placed her, by reason of her ADHD, at a substantial disadvantage because she found it difficult to follow a rotational pattern as this was not a fixed routine every week. Due to her poor memory and organisational skills, it would be difficult for her to know when she needed to be in the office. The claimant did not accept that having her working days noted in the diary by the admin team would have assisted her in following the new working pattern.[54]The claimant asserts that she made a request for reasonable adjustments at the litigation team meeting in January 2024 and that this request was effectively refused as no action was taken in response to it. She relies upon this refusal as amounting to a fundamental breach of the implied term of trust and confidence entitling her to resign and claim constructive dismissal. She asserts that as the breach was the failure to make reasonable adjustments, which is an act of discrimination, any such dismissal is discriminatory. The claimant submits that she did not delay in taking action to resign her employment, such that she waived any breach, because there was no clear date as to when the new hybrid working scheme was introduced. She referred to the fact that she had had a difficult pregnancy and the health difficulties following the birth of her daughter as being the reason for any delay.[55]The claimant also submitted that she had not been referred to the respondent’s policies and that they were not followed.[56]On behalf of the respondent Miss Howard submitted that there had been no fundamental breach of the implied term of trust and confidence by the respondent entitling the claimant to resign and that the claimant did not resign in response to any breach. In the alternative, Miss Howard asserts that the claimant waived any breach by delaying her resignation. Further she submitted that if the claimant was dismissed, it was not due to any failure to make reasonable adjustments and therefore there was no discriminatory dismissal.[57]Miss Howard submitted that the authorities to which she referred, and which I have considered, show that an employee is not justified in leaving employment and claiming constructive dismissal merely because the employer has acted unreasonably. There must have been a breach of contract sufficiently serious to destroy trust and confidence and going to the root of the contract, and that the claimant must also have resigned their employment in response to that breach. An employee must make up their mind after the breach of contract and if there is delay will lose the right to claim constructive dismissal. If a last straw is relied upon it must contribute to the breach of the implied term of trust and confidence. Miss Howard submitted that the claimant accepted the variation of her contract in March 2024 but did not resign until October 2024.[58]Miss Howard submitted the breach of contact relied upon in this case was the refusal to accommodate the claimant’s reasonable adjustments. She draws attention to the fact that it is unclear when there was any such refusal and notes that the claimant made no formal request for adjustments nor raised any grievance regarding the alleged refusal. She asserts that the claimant benefited from informal arrangements during her pregnancy and there was no basis to assert that any request for accommodation of her ADHD in respect of the new working pattern would have been denied had she requested it. The claimant had never indicated any need for reasonable adjustments previously and the revised scheme was still a fortnightly rotation which the claimant had successfully worked since the start of her employment, the only change being an increase in consecutive days worked from the office.[59]Miss Howard submitted that the claimant had not shown that she was placed at a substantial disadvantage by the PCP and the respondent could not have been expected to know there was any more disadvantage to the claimant than to non-disabled persons.[60]Miss Howard also submitted that the claim was time barred under s.123 EqA. She alleged that the claimant’s case was that the failure to make reasonable adjustments followed from her request at the meeting on 15 January 2024 and that the scheme was implemented without any adjustments on 1 April 2024.[61]In response to this the claimant said time limits should be extended and should be considered against the wider context of what was happening in her life at the time.
Conclusions
[62]The claimant was a disabled person at the material times. The evidence of all parties was that at all material times the respondent knew that the claimant had ADHD and, although I accept that not all persons with ADHD will necessarily be considered to be disabled within the meaning of the EqA as each individual will be impacted differently by the condition, I find that in this case the respondent’s knowledge of the claimant’s ADHD meant that they could therefore reasonably be expected to know that the claimant was a disabled person within the meaning of the EqA.[63]The PCP relied upon was the requirement to work a fixed 5 day rotational working pattern for hybrid staff, which required staff to attend the respondent’s offices on three consecutive days at the end of one week, followed by two consecutive days at the start of the next week.[64]The claimant’s case is that the PCP put her at a substantial disadvantage because the pattern of office working was not the same every week and this meant that, due to her ADHD, and more particularly her poor memory and organisational skills, it would be difficult for her to know when she needed to be in the office as opposed to working from home.[65]I was not satisfied on the evidence before me that the PCP placed the claimant at a substantial disadvantage in comparison with non-disabled persons. I accept that claimant had poor memory and organisational skills as a consequence of her ADHD. However, she had worked a fortnightly rotational pattern since the commencement of her employment with the respondent without incident. Although her working pattern had changed from week to week, only working alternate Mondays, there was never any suggestion that she had been unable to ascertain when she was due to be in the office. Whilst the claimant explained that she would need to take the step of texting a colleague on a Sunday evening to check whether she needed to be in the office the next day, her non-disabled colleague, Miss Knight, also described how she would have to log on to her laptop on a Sunday to also check whether she needed to be in the office the following day.[66]Under the new hybrid working scheme, the pattern meant that employees were in the office Wednesday to Friday the first week of the fortnightly pattern, and then in the office Monday and Tuesday of the following week. This did mean that employees would need to check which week of the pattern they were on in order to know when they needed to attend the office, but I found that all employees would therefore need to make checks to know which days they needed to be in the office. Miss Knight, a non-disabled employee, had described that she felt she would be in difficulties in remembering from one week to the next which days she needed to be in the office. I do not find that the claimant was placed at any greater substantial disadvantage than her colleagues in this regard.[67]The claimant stated in evidence that she found it difficult to use diaries or calendars and this is why she would be placed at a substantial disadvantage in knowing when she would be required to attend the office. Whilst I accept that her ADHD may have made it more challenging for her to organise her own commitments by use of a diary or calendar, in that she may not be able to remember to enter her days of work into her own diary, the evidence the tribunal heard was that the respondent had diaries and calendars for all employees in the litigation team that stated which day they needed to attend the office and also set out the individual’s court commitments and meetings they needed to attend. These could be accessed at any time whilst at work or at home via work laptops or mobile phones. All employees, including the claimant, could therefore check their diary each day to enable them to understand that they needed to attend the office the following day. I heard no evidence to suggest that the claimant was placed at any substantial disadvantage in carrying this out in comparison to her non-disabled colleagues. The claimant had been able to attend the office on the correct days under the previous working pattern and had also been able to use her work diaries and calendars to ascertain when she needed to attend court or meetings. There was no evidence before me to suggest that the claimant had ever experienced any greater difficulties with checking these commitments or where she needed to be on any given work day than her colleagues.[68]The claimant described her use of a board at home on which she entered the details of any appointments or commitments for the forthcoming week so that she knew where she needed to be and that her partner could also assist in reminding her. I find that the claimant was able to use that system with the new hybrid working scheme in the same way that she had under the previous scheme and that she would be at no more disadvantage in planning her office working days than her non-disabled colleagues.[69]In addition, at no time during the claimant’s employment did the new hybrid working scheme actually place the claimant at the claimed substantial disadvantage. At the time the scheme came into effect in early April 2024 the claimant was already working under an adjusted routine as a result of her pregnancy related illness and she was working almost exclusively from home. There was no suggestion that she was to be required to work this pattern prior to starting her maternity leave in May 2024 and she was not so required. From May 2024 onwards the claimant was on maternity leave and not required to work the new pattern. The claimant had not notified the respondent of her intention to return from maternity leave, or the date that she intended to return. In submissions the claimant said she had planned to continue on her maternity leave until at least January 2025 or possibly May 2025. As the claimant resigned her employment in October 2024, at least 3 months before she was considering returning to work from maternity leave, there had been no discussions about the pattern she would be required to work on her return. At no time had the claimant spoken with her line managers to state that the new pattern would cause her difficulties and the respondent had been given no opportunity to discuss the ways in which any such difficulties could be accommodated.[70]Had the claimant been able to establish that she was placed at a substantial disadvantage by the PCP, I find that whilst the respondent could reasonably have known that the claimant was a disabled person by reason of her ADHD, it could not reasonably have known that the claimant was likely to be placed at a substantial disadvantage by the PCP.[71]The claimant had raised the fact that neurodivergent employees may find the new hybrid working rotational pattern more difficult, and that she had raised in general terms at the meeting on 15 January 2024 that the new pattern would be difficult for her as a person with ADHD, but I do not find that this was sufficient for the respondent to know the specific substantial disadvantage the claimant now relies upon. The raising of those issues must be considered against the general context of that meeting where all members of the litigation team were raising concerns in general terms about the change to their working pattern.[72]The claimant did not at any time raise with the respondent that the new working pattern would place her at a substantial disadvantage or explain what that disadvantage would be. She had never raised any concern with the respondent about being able to use her work diaries or calendars to be able to ensure that she attended the office on the correct day or knew when to attend important meetings or court commitments. There was nothing in the claimant’s previous day to day working life that had alerted the respondent to the fact that she would be unable to follow the new rotational working pattern. She had followed a rotational pattern from the outset of her employment without incident. Her managers had never had cause to speak with her about missing meetings, court commitments or not attending at the office. The claimant accepted under cross examination that she did not tell the respondent that she struggled with organisation. At no time had she informed her managers that she was unable to follow the rotating pattern already in place.[73]The claimant accepts that ADHD affects people differently so there would not be one approach that would suit all. At no time did she set out to the respondent what changes she required. The claimant, along with other members of the litigation team, had been hopeful that the amendments to the pattern proposed by Ms Kirkhope of working Monday to Wednesday in the first week and Monday and Tuesday the following week would be approved. She would have been content with this rotating pattern and would not have requested any adjustment to that. However, once the litigation team were informed on 27 March 2024 that this was not an option the claimant raised no concerns with the respondent. The claimant agreed to the variation to her contract on 28 March 2024 and raised no request for any adjustment at that time.[74]Employees were encouraged to discuss any concerns or difficulties with the new hybrid working pattern with their line manager in the first instance. The claimant says that she did not do so as she had a difficult relationship with her line manager, Ms Spilg, but I find that the claimant was able to approach Ms Kirkhope regarding her concerns about ante natal appointments and was therefore aware she could discuss any concerns about this issue with Ms Kirkhope but chose not to do so.[75]Having concluded that the claimant was not placed at a substantial disadvantage by the PCP, and that the respondent did not know, and could not reasonably have been expected to know, that the claimant was placed at any substantial disadvantage by the PCP, I find that the respondent was therefore not under a duty to take any steps to avoid the claimed disadvantage and the claim for failure to make reasonable adjustments fails and is dismissed.[76]Although it was therefore not necessary for me to determine the issue of time limits for the failure to make reasonable adjustments claim, I agreed with the respondent’s submission that the claim should have been brought within 3 months of the implementation of the scheme on 1 April 2024, but I would also have considered it just and equitable to extend time for this claim on the basis of the claimant’s pregnancy related illness, the fact that she gave birth in May 2024 and that she and her daughter were unwell for some time thereafter.[77]The claimant relies upon the respondent’s alleged refusal to accommodate her request for reasonable adjustments as being the breach of the implied term of trust and confidence for the purposes of her constructive unfair dismissal claim.[78]As I have found that there was no such refusal or breach of duty I find that the respondent did not act in a way which was calculated or likely to destroy or seriously damage the relationship of confidence and trust which should exist between employer and employee. The claimant’s own evidence was that she continued to have a good working relationship with Ms Kirkhope until her resignation and yet she had chosen not to discuss this issue with her or to make any request for reasonable adjustments once it became known that the litigation team would be required to comply with the new hybrid working pattern.[79]The claimant’s managers did not know, and could not reasonably have known, that the claimant felt she was unable to return to work on this rotational pattern following her maternity leave. The claimant had not explained to her managers the potential impact of the new working pattern on her due to her ADHD and did not give the respondent any opportunity to discuss ways in which it could have assisted the claimant in reminding her of the days she was due to attend the office.[80]The claimant agreed to the change to her contractual working pattern on 28 March 2024 by signing the letter she was sent inviting her to so agree and she raised no concern or request for adjustment at that time. The claimant then embarked upon a search for alternative employment whilst on maternity leave and did not resign her employment until 22 October 2024, nearly 7 months after the contractual variation had been accepted by her.[81]The claimant also asserts that the refusal to accommodate her request for reasonable adjustments occurred after the meeting of 15 January 2024. On that basis I would have found that, even if there were a breach of the implied term of trust and confidence, the claimant had affirmed the contract despite any such breach.[82]Whilst I accept that the claimant decided to seek alternative employment because she did not wish to return to work the new office working pattern after her maternity leave, I do not accept that this meant that she had resigned in response to any breach of contract by the respondent. The claimant had decided to seek alternative employment and her resignation was prompted by a decision to accept a role with a law firm in which she could work permanently from home. That was the reason for the claimant’s resignation, it was not the respondent’s conduct.[83]As the claims for failure to make reasonable adjustments and constructive unfair dismissal are not well founded and have been dismissed, the claimant’s claim for discriminatory constructive unfair dismissal must also fail and be dismissed.[1]By an ET1 filed on 11 March 2025 the claimant brought claims for constructive unfair dismissal, discriminatory constructive dismissal, and a failure to make reasonable adjustments.[2]The claims were heard in Glasgow over a four day final hearing from 18 to 21 August 2025.[3]By a judgment sent to the parties on 22 October 2025 the tribunal dismissed the claims. The respondent’s application[4]On 13 November 2025 the respondent made an application pursuant to Rule 74 and 75 of the Employment Tribunal Procedure Rules 2024 (“ET Rules”) for the respondent’s expenses. The grounds of that application are that the respondent asserts that the claimant acted vexatiously and/or unreasonably in bringing and/or conducting her claim and/ or that the claimant had no reasonable prospect of success.[5]The respondent asserts that the claimant’s claims had no reasonable prospects of success, that no notice was given by the claimant to the respondent of her concerns or difficulties at the material time of events of the claim, and that these were only raised after the respondent wrote to the claimant seeking repayment of occupational maternity pay in December 2024 following her resignation in October 2024 while on maternity leave.[6]The respondent relies upon the fact that it outlined the lack of reasonable prospects of success in its grounds of resistance lodged on 7 April 2025 and that the respondent wrote to the claimant on 8 August 2025 advising that, if the claims were unsuccessful, it would pursue her for the associated expenses, which at that point stood at approximately £4,000 plus VAT. The claimant was advised that these costs would increase with further preparation and attendance at the final hearing, which was listed for four days, and the respondent urged the claimant to seek legal advice on the contents of their email, particularly in relation to expenses.[7]The respondent further asserts that the claimant acted vexatiously and/or unreasonably in bringing and/or continuing her claims. The respondent asserts that the claimant is a qualified solicitor and should have been aware that the claims she brought had no reasonable prospect of success. She had been legally represented at an earlier stage of the proceedings until 30 June 2025 when her representative withdrew. The respondent asserts that this suggests that the claimant’s position lacked merit and credibility.[8]The respondent further asserts that the claimant resigned after securing alternative employment, suggesting that the decision to bring these claims was not driven by a genuine belief in their merits, but by ulterior motives, namely that she was obliged to repay occupational maternity pay.[9]The respondent asserts that the claimant has sought to link civil court proceedings brought by the respondent to recover occupational maternity pay with this tribunal claim, that in doing so she has provided incorrect and misleading information to the Sheriff Court, and asserts that this suggests that the claimant has used the tribunal process as a means to delay or avoid repayment of sums that are contractually owed.[10]In addition to its initial application, the respondent provided detailed written submissions in support of its application on 16 January 2026 and the tribunal has considered those submissions in full but does not seek to repeat them here. The claimant’s response to the application[11]The claimant provided submissions in response to the respondent’s application on 16 January 2026. The claimant also provided additional submissions on 21 January 2026. The tribunal has considered both of these submissions in full but does not seek to repeat them in their entirety here.[12]In respect of the respondent’s assertion that the claims had no reasonable prospects of success, the claimant asserts that the claims were not misconceived from the outset. She asserts that she did give the respondent notice of her concerns and difficulties by 15 January 2024 and that she was then not in the office and was absent for maternity related reasons and then on maternity leave. The claimant asserts that the respondent’s response denied any knowledge of the claimant’s disability and that the findings of the tribunal were that the claimant was open with her colleagues regarding her ADHD and had made reference to this when she raised concerns at the meeting on 15 January 2024.[13]In respect of the assertion that she had acted vexatiously and/or unreasonably in bringing the claims the claimant notes that the fact that she had obtained alternative employment before resigning did not prevent her from arguing that she had resigned in response to a fundamental breach of her contract of employment that she considered to be discriminatory treatment. The claimant had started to look for alternative employment because she did not want to return to working with the new hybrid working pattern.[14]In respect of the assertion that she had acted vexatiously and/or unreasonably in continuing the claims after the respondent’s without prejudice email of 8 August 2025 the claimant notes that, had she succeeded in her claims for unfair dismissal and discriminatory dismissal, she would have expected to have been awarded substantially more than the sums that were to be written off in respect of her occupational maternity pay and that in those circumstances she was entitled to reject the offer.[15]In respect of the claimant’s solicitors coming off the record she asserts that this was not related to the merit or credibility of her position, but rather that she could not continue to instruct a solicitor primarily for financial reasons and that, had she been in a position to continue to fund the case privately, she would have done so.[16]The claimant denies providing any incorrect or misleading information in the civil proceedings in Airdrie Sheriff Court and asserts that her alleged conduct in the Sheriff Court proceedings cannot form the basis for an award of expenses for the conduct of the tribunal claim.
The relevant law
[17]Rule 73(1)(a) of the ET Rules provides that: A costs order is an order that the paying party make a payment to -(a) The receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative Rule 74(2) provides that: A Tribunal must consider making a costs order or a preparation time order where it considers that- (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted;(b) any claim, response or reply had no reasonable prospect of success… Rule 76(1)(a) provides that: A costs order may order the paying party to pay – (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party. Rule 2(1) provides that in Scotland, all references to costs (except when used in the expression “wasted costs”) must be read as references to expenses.[18]In an application under r.74(2)(a) or (b) the ET Rules impose a three stage test. First, the tribunal must ask itself whether the party’s conduct falls within rule 74(2)(a) or whether the ground that the claim had no reasonable prospect of success is made out, so as to engage the costs jurisdiction. If so, secondly, the tribunal must ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party. The third stage is the determination of the amount of any award.[19]The Court of Appeal in Scott v Russell 2013 EWCA Civ 1432, CA cited with approval the definition of ‘vexatious’ given by Lord Bingham in Attorney General v Barker 2000 1 FLR 759, QBD (Div Ct) “the hallmark of a vexatious proceeding is…that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”[20]In Radia v Jeffries International Ltd EAT 0007/18 the EAT gave guidance on how tribunals should approach costs applications under what is now rule 74(2)(b). It emphasised that the test is whether the claim has no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start. The tribunal must consider how, at that earlier point, the prospects of success in a hearing that was yet to take place would have looked.[21]Expenses orders in the employment tribunals are the exception rather than the rule – see Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA. Conclusions Did the claimant act vexatiously, abusively or otherwise unreasonably in the bringing or conducting of proceedings?[22]The respondent asserts that the claimant’s decision to bring her claims was not driven by a genuine belief in their merits, but by ulterior motives. In particular that she was obliged to repay occupational maternity pay following her resignation and that she has sought to retaliate to the respondent’s efforts to recover that maternity pay in civil proceedings by raising these tribunal proceedings.[23]The respondent refers to an email from the claimant to the Airdrie Sheriff Court on 13 October 2025 in support of their assertion. The respondent asserts that the claimant has sought to link the civil court proceedings with the tribunal claim and in doing so has provided incorrect and misleading information to the court, suggesting that the tribunal was adjudicating on the issue of overpaid maternity pay and that this is demonstrably false as the issue of repayment was not part of the claimant’s case before the tribunal.[24]The email of 13 October 2025 to the Airdrie Sheriff Court states as follows: “The Tribunal matter includes constructive and unfair dismissal raised by me against the respondent. This matter includes a claim for over-paid maternity pay, clearly these matters are linked.” On an ordinary reading of this passage, in referring to “this matter”, in an email sent to the Sheriff Court in proceedings before it, I understand the claimant to be referring to the proceedings in the Sheriff Court as opposed to the tribunal proceedings. I understand that it is factually correct that the Sheriff Court proceedings do include a claim for overpaid maternity pay. The assertion by the respondent that the claimant has provided incorrect and misleading information to the court appears to arise from a misreading by the respondent of the claimant’s email. I do not accept that the claimant has sought to mislead as asserted.[25]In any event, I see no basis upon which I could make an order for expenses in these proceedings on the basis of the claimant’s conduct in the proceedings before the Airdrie Sheriff Court. I do not accept that this correspondence, or anything else about the claimant’s conduct, demonstrates that the claimant used the tribunal process as a means to delay or avoid repayment of her occupational maternity pay as the respondent asserts. Indeed if that were correct, and that these tribunal proceedings were only a device to avoid repayment of the maternity pay, it would be difficult to see why the claimant rejected the respondent’s offer of writing off that debt in return for withdrawal of the tribunal proceedings.[26]I see no basis for the assertion by the respondent that the claimant’s conduct in initiating and continuing proceedings was an abuse of process aimed at frustrating the respondent’s efforts to recover contractual sums through the civil courts.[27]If that were the case it was open to the respondent to make an application to strike out the claimant’s claims at an early stage of the proceedings but no such application was made.[28]The tribunal is satisfied that there has been no vexatious, abusive or otherwise unreasonable conduct on the part of the claimant in the bringing or conducting of these proceedings. Did the claim have no reasonable prospect of success?[29]The claimant filed her ET1 on 11 March 2025 and was at that time represented by solicitors. The claimant’s claim set out that she was a disabled person within the meaning of the Equality Act 2010, that the respondent had knowledge of that disability, and that the respondent was under a duty to make reasonable adjustments to their new hybrid working policy as it placed her at a substantial disadvantage in comparison to non-disabled employees. She asserted that the refusal to make such adjustments amounted to a breach of the implied term of trust and confidence, that she had resigned in response to that breach and had therefore been constructively unfairly dismissed.[30]The respondent denied that the claimant was a disabled person or that it had knowledge of disability. It denied that the new hybrid working scheme placed the claimant at a substantial disadvantage and asserted it was therefore under no duty to make reasonable adjustments and the constructive unfair dismissal claim was therefore without merit.[31]The respondent persisted in its denial of the claimant’s disability after it had been provided with details of the claimant’s diagnosis of ADHD and her disability impact statement. At a preliminary hearing on 15 July 2025 that matter was resolved in the claimant’s favour when the tribunal determined that the claimant was a disabled person within the meaning of the Equality Act 2010.[32]At the final hearing the tribunal determined, on the basis of the evidence it heard from all witnesses, that the respondent did have knowledge of the claimant’s disability at the material times.[33]The tribunal heard evidence over a four day hearing from a total of six witnesses in addition to the claimant. The tribunal does not accept the respondent’s assertion that the witnesses called by the claimant were not relevant to the issues in dispute, or that the claimant acted unreasonably in seeking to call those witnesses. They gave relevant evidence as to a number of matters, including the issue of knowledge of the claimant’s disability and as to their account of events at meetings relating to the introduction of the new hybrid working policy.[34]Although the tribunal concluded that the claimant was not placed at a substantial disadvantage when compared to her non-disabled colleagues in respect of the respondent’s new hybrid working policy, it did so after having heard detailed evidence from both parties. It does not follow from the fact that the claimant was ultimately unsuccessful in her claim that it could be said that the claim had no reasonable prospect of success from the outset, or that this would have been obvious to the claimant. There were a number of disputes of fact between the parties that required to be resolved by the tribunal after hearing all of the evidence.[35]The claimant’s claim for constructive unfair dismissal was founded on her claim for failure to make reasonable adjustments and that claim therefore also failed. The tribunal found that the claimant had resigned to take up a new role but it also accepted that the claimant had decided to seek that alternative employment because she did not wish to return to working the new hybrid working pattern after her maternity leave. It does not follow that because the claimant was ultimately unsuccessful in her claim for constructive unfair dismissal that the claim had no reasonable prospect of success from the outset.[36]The respondent relies on its assertion that no notice was given by the claimant to the respondent of her concerns or difficulties at that time of the events relied upon in her claims. The tribunal did find that the claimant had raised concerns with the respondent that the nature of the new hybrid working pattern would be difficult for neurodiverse employees and that this would not work for the claimant with her ADHD. The fact that the claimant did not raise any grievance with the respondent before commencing these claims does not mean that the claims had no reasonable prospects of success.[37]The tribunal notes that the respondent did not at any stage of the proceedings make an application to strike out the claims on the basis that they had no reasonable prospect of success or seek a deposit order on the basis that they had little reasonable prospect of success.[38]The tribunal has taken account of the ‘Without prejudice save as to expenses’ email that was sent to the claimant on 8 August 2025 that offered to write off the debt relating to the repayment of occupational maternity pay in exchange for full withdrawal of the claimant’s claims. That offer was said to be a genuine attempt to settle the claims and was in the interests of saving time and expense for all parties. Although the email asserts that the respondent will pursue an order for expenses if either of the claimant’s claims are unsuccessful, it makes no assertion that the claims have no reasonable prospects of success, nor does it seek to explain to the claimant the reasons why the respondent asserts that the claims had no reasonable prospects of success. The offer was made two weeks after the tribunal’s decision on the issue of disability had been sent to the parties, notifying the claimant that she had been successful on that preliminary issue. The tribunal had preferred the claimant’s evidence on those issues and, having succeeded on that preliminary issue, I find that it was reasonable for the claimant to believe that there was merit in pursuing her claims for determination at a final hearing.[39]I do not accept, as the respondent asserts, that because the claimant is a qualified solicitor she must have understood the weaknesses in her claims but chose to pursue them regardless. I take account of the fact that the claimant has never practised in employment law.[40]The tribunal finds that the claimant genuinely believed that the respondent should have made an adjustment to the new hybrid working scheme because she would find it difficult to follow because of her ADHD. She also believed that this failure amounted to a breach of contract entitling her to resign her employment and that this was the basis for the claims she advanced before the tribunal. Ultimately the tribunal found that her claims were not well founded for the reasons it set out in its judgment, but that would not have been obvious to the claimant prior to the entirety of the evidence being heard at the four day final hearing and it was neither vexatious or unreasonable for her to seek to pursue those claims to a final hearing. Should the tribunal exercise its discretion to make an expenses order?[41]Having concluded that the claimant did not act vexatiously, abusively or otherwise unreasonably in the bringing or conducting of these proceedings and having concluded that it could not be said that the claims had no reasonable prospects of success, the tribunal concludes that it would not be appropriate to make an expenses order in this case.[42]The respondent’s application is therefore refused.