Employment Judge A KempMr D James (instructed by Advocate) for claimantMr C Harrington (instructed by Solicitor) for claimantDr A Gibson (instructed by Solicitor) for respondentDate 9 January 2026
JUDGMENT
[1]The respondent failed to make a reasonable adjustment for the claimant by taking steps to lower the height of the counter at the public office of Stonehaven Police Station contrary to sections 20 and 21 of the Equality Act 2010.[2]The claimant is awarded the sum of TWO THOUSAND TWO HUNDRED AND NINETY THREE POUNDS THIRTY FOUR PENCE (£2,293.34) payable by the respondent.[3]The remaining claims do not succeed and are dismissed.
REASONS
[1]This was a Final Hearing into the claims made by the claimant set out below. The claimant presented an initial claim form, which was then treated as superseded by that with the case number above, as addressed below.[2]There had been a Preliminary Hearing on 7 October 2024. After that hearing case management orders were issued.[3]The parties were ably represented by Mr James and Dr Gibson, and the Tribunal was grateful to both of them for their helpful conduct of the case and submissions.
Claims
[4]The claimant relies on the protected characteristics of disability, race and sex. The respondent has admitted disability status and knowledge. The claimant makes claims under sections 13 of the Equality Act 2010 (“the Act”) in respect of direct race discrimination, sections 20 and 21 in respect of reasonable adjustments, section 26 for harassment related to race and sex, and section 27 for victimisation. All the claims are denied. An issue of time bar is also taken in part. Preliminary Issues[5]There were preliminary issues that the Tribunal addressed prior to the hearing of evidence. They were as follows:(i) Documents Each party produced a Supplementary Bundle of Documents in addition to the main Bundle, which consisted of a little over 1,000 pages. Each was received without objection, save that there was an issue over a recording and transcript. The respondent objected to them. The Tribunal decided to reserve the position as to that matter pending the evidence, for reasons explained orally at the hearing.(ii) Statement of Agreed Facts The claimant had provided such a Statement, but Dr Gibson confirmed that it was not agreed, and it was not therefore read by the Tribunal.(iii) Timetabling The Tribunal did not impose a timetable formally but indicated to the parties that it was in the interests of all that the hearing conclude within the five days allocated. Unfortunately that did not occur.
Issues
[6]The parties had agreed a List of Issues, which required modification as issues as to disability status and knowledge were conceded. Those remaining from that List are addressed in full below. Evidence[7]The parties as confirmed above had prepared a Bundle of Documents, and there were two Supplementary Bundles. Much but far from all of the documents were spoken to in evidence. As noted above no Statement of Agreed Facts was provided, but the parties had agreed that all documents before the Tribunal were what they bore to be although it was not agreed that the contents of each document were necessarily true.[8]Evidence was given by the claimant first. She had shortly before the hearing applied to give her evidence remotely as an adjustment, that was not opposed by the respondent, and the Tribunal had granted that. The claimant also had a support worker to assist her, again granted not opposed. The Judge confirmed at the start of the evidence the claimant gave what the role of the support worker was and the requirement of a person giving evidence not to discuss that evidence until she had completed giving it. The claimant did not call any witnesses.[9]Evidence for the respondent was given by Assistant Chief Constable Mark Sutherland, whose evidence, of consent, was interposed towards the end of the claimant’s evidence, Sergeant Iain Fraser, Inspector John Lumsden, Sergeant John McOuat, and Inspector Rhona di Meola. The evidence was not concluded within the time originally fixed, and additional days of evidence were arranged after what was an unfortunately long delay of around six months.[10]At the start of the fourth day of evidence the claimant applied to add two new documents to the Bundle, an email of 9 February 2024 and a note dated 23 February 2024, which the respondent opposed. For reasons given orally at the time, the claimant’s application to do so was refused.[11]The evidence concluded on 19 November 2025. Submissions were made on the following day and on 21 November 2025 the Tribunal deliberated. Its decision is unanimous.
Facts
[12]The Tribunal considered all the evidence led before it, not all of which is narrated in the Judgment. It found the following facts, which it considers material to the issues, to have been established: Parties[13]The claimant is Mrs Neelam Puri. Her date of birth is 9 December 1966.[14]The respondent is the Scottish Police Authority.[15]The claimant was employed by the respondent as a Public Enquiry Support Assistant (“PESA”) from 17 October 2022, until her employment terminated on her resignation on 11 July 2025.[16]The claimant is female, and her race is Indian. The claimant had previously lived in the London area, and had had a career in government positions and charitable organisations before moving to Stonehaven in 2022.[17]The claimant is a disabled person under the Equality Act 2010 and was so for all times material to this case. The respondent knew of that for all times material to this case. The claimant has a condition, bilateral planovalgus, affecting her feet and ankles. It causes her pain, particularly from periods of prolonged standing, walking, driving, or from using stairs. Contract and Policies[18]Civilian staff working to support the police in Scotland are employed by the respondent. The respondent works in practice very closely with Police Scotland, which is responsible for all police officers, of all ranks.[19]The respondent issued the claimant with a Statement of Main Terms and Conditions of Employment when she commenced employment. It confirmed her place of work as Marischal College, Broad Street, Aberdeen, that she was on salary scale grade 3, and had a normal working week of 26.6 hours but may be asked to work additional hours from time to time to meet service requirements. There was provision for sick pay, dependent on length of service. For those with 1-2 years’ continuous employment the entitlement was to 9 weeks at full pay and 9 further weeks of half pay, inclusive of Statutory Sick Pay. It required the employee to follow sick pay procedures.[20]The respondent and Police Scotland operate an Attendance Management Procedure. It is possible to apply for “particular case” status by which the period of full or half pay when absent can be extended as a matter of discretion. That includes where the staff member is a disabled person under the Equality Act 2010, the absence is related to disability and the respondent considers that it would be a reasonable adjustment to extend sick pay, which is generally done so as to allow further reasonable adjustments to be made to enable the staff member to return to work.[21]The respondent and Police Scotland operate a Standard Operating Procedure on Disability in Employment. Paragraph 2.4 headed “Implementing Reasonable Adjustments” included making changes to working patterns. The responsibilities of a line manager were set out at paragraph 3.2, and included that “SCoPE should be updated to record the disability, the needs of the individual and any adjustment implemented….”[22]Paragraph 3.2.3 states “There is a legal duty to consider any reasonable adjustments that an individual needs to perform their role and further details around assessing needs and identifying adjustments is given in the “assessing needs” section. Assessing Needs is addressed at paragraph 3.3.[23]Access to Work is addressed at paragraph 3.5, which states that: “3.5.1 Access to work is a specialist disability service from Jobcentre Plus which is a division of the Department for Work and Pensions. It provides assistance to disabled people who need support or adaptations beyond the Reasonable Adjustments which we are legally obliged to provide under the Equality Act 2010. 3.5.2 In some situations where specialist equipment, adaptations or support worker services are needed it may be appropriate to apply for a grant from Access to Work.”[24]It has provision for assessing needs and implementing reasonable adjustments. It states at paragraph 3.5.4 “Where a change to someone’s working pattern is being considered as a Reasonable Adjustment the Flexible Working procedure must be followed.” [The Flexible Working procedure was not before the Tribunal.][25]Appendix A had further provision as to Access to Work.[26]Appendix H had examples of adjustments which included adjustments to premises and changing the person’s hours of working or training. It stated: “All reasonable adjustments being considered should be recorded on SCoPE [a computerised system for HR and other purposes]. SCoPE permission levels allow for anyone within the line management ‘chain’ of a team member to be able to amend/delete reasonable adjustments on the system.”[27]The respondent and Police Scotland issued Guidance on Online Safety. It included not discussing work related topics, using appropriate language and being respectful of colleagues. Claimant’s work[28]Initially the claimant worked at the public office at Marischal College, Aberdeen. She worked on a shift rota. Marischal College is a police station, and its public office was operational 24 hours a day, 7 days per week.[29]The role of a PESA is primarily to deal with those who attend the Public Office at a police station. Those doing so are either members of the public who may raise questions about lost and found property for example, and those who have been convicted such as sex offenders who require to register, or those who have been accused and have bail conditions. The role also involves some administrative work such as carrying out audits of airwave equipment used by police officers. The claimant also liaised with officers of Police Scotland as part of her role. Precisely what a PESA does, and how, is not the same at different police stations.[30]PESAs are line managed by Sergeants of Police Scotland. Sergeants are line managed by Inspectors.[31]Initially the claimant’s line manager was Sergeant Malcolm Kinross. In around December 2022 that changed to Sergeant Kerri Johnston. In around July 2023 the line manager became Sergeant Iain Fraser.[32]The claimant worked with 8 other PESAs in Aberdeen. They worked on different shifts on occasion. All save one were white Scottish. One person was Thai by race, but had been brought up in Scotland.[33]The claimant did not have a good relationship with the other PESAs in Aberdeen. She believed that they were deliberately not training her to do her role properly. She believed that she was being excluded from a social media group they had set up. The other PESAs did not have a good relationship with the claimant. Their views were expressed in a group platform on WhatsApp where they were all participants.[34]At some time around late 2022 the claimant asked another PESA Clare Fyfe if there was such a group, and was told that there was not. The claimant was not invited to join it. 2023[35]In around January 2023 the claimant contacted the Employee Assistance Programme helpline about what she perceived as poor treatment at work by her colleagues and managers, who advised her to document what was happening. She commenced writing a timeline of matters.[36]The claimant considered that other PESAs were not training her correctly, and doing so deliberately. She considered that she was being spoken to inappropriately by them, such as by criticising how she was acting in a way she considered inappropriate. She raised that issue with her line managers including with Inspector John Lumsden by email dated 28 April 2023. He met her with Sergeants Kinross and Fraser on 10 May 2023 and said that he did not see any problem with how her colleagues had handled the matters she had raised in the email. He suggested that she raise matters with Ms Fyfe, and added that the claimant was still new to the role. Ms Fyfe was very experienced in it.[37]The claimant emailed Inspector Lumsden about that meeting on 22 May 2023, and he replied the same day. Separately on that day Inspector Lumsden emailed the claimant with regard to an Occupational Health referral following a period of absence. They exchanged emails on that and the following day. The claimant stated that the actions of her colleagues were not in line with the equality, diversity and inclusion policy. She also sought assistance by reasonable adjustments to accommodate her disability, although without specifying what those adjustments were.[38]On 22 May 2023 the claimant and Inspector Lumsden exchanged a series of emails. She said that her colleagues had raised several concerns which were not in line with the equality, diversity and inclusion policy. She said that it had not been raised at a meeting because of his approach, and that had he been less aggressive he might have been able to ascertain the truth. She said that she represented the ethnic minority community. She referred to needing adjustments for her disability.[39]On 7 June 2023 Ms Jovia Edokpayi of HR at the respondent contacted Inspector Lumsden to request a meeting to discuss concerns as to how staff were at the public office. Some of the PESAs, other than the claimant, had been reported to be in tears at what they considered was unreasonable behaviour by the claimant and were looking for alternative employment.[40]The claimant emailed Superintendent Kate Stephen on 4 July 2023 raising concerns at how she was being treated, to which she replied on 6 July 2023.[41]On 7 July 2023 Inspector Lumsden, Sergeants Fraser and Johnston, and Ms Edokpayi met to review matters in relation to how the PESAs were interacting. They considered that matters seemed to revolve around the claimant. Issues discussed included the claimant’s concerns over her training, and performance concerns in relation to the claimant. The claimant’s disability was discussed, as was her relationship with Ms Fyfe.[42]After that meeting the claimant was called to a meeting with Inspector Lumsden and Sergeant Fraser. They raised with the claimant that she was wasting three sergeants’ time by so frequently raising questions about her training.[43]The claimant was regularly informed of the process for raising issues, and as to line management structures. That was as she had not followed process for doing so.[44]On or around 23 July 2023 Sergeant Fraser spoke to the claimant, about what he perceived was her misunderstanding what he had said, stating that it was not instruction but advice.[45]On 23 July 2023 the claimant sent a lengthy email to Superintendent Stephen complaining of the treatment she had received from colleagues and managers, claimed that Sergeant Fraser had yelled at her for no reason, and stated “I am not willing to put myself under such scrutiny and duress again. It is affecting my health. I no longer wish to work with these women…….” She referred to Sergeant Fraser having offered the claimant an apology, which she accepted.[46]On 24 July 2023 the claimant emailed Sergeant Fraser stating “I’m quite surprised that you came up into Public Office to tell me off. I haven’t twisted words at all. I assumed that receiving instructions from our line manager were orders. I apologise if it was the incorrect use of words. It was in no way intended to create any issues……” Sergeant Fraser spoke to her and stated that he did not give instructions but guidance.[47]On 4 August 2023 Ms Edokpayi met the claimant with Kate Stephen also attending. During the meeting the claimant requested a transfer from Marischal College. 16 and 18 August 2023[48]On 16 August 2023 Sergeants Fraser and Johnston had a meeting with Ms Fyfe, who was visibly upset and concerned at working with the claimant. That day the claimant sent Sergeant Fraser an email alleging a campaign by the others in the PESA team to make her appear incompetent and distort the truth. It was copied to Mr Ferguson, her union representative, Superintendent Stephen and Ms Edokpayi.[49]On 16 August 2023 Mr Arthur Martin, known as Willie, attended the Public Office. He attends to lost property for the respondent, and attends the office regularly. He spoke to the claimant during which he made comments in relation to slavery and a plantation earlier generations of his family had been involved in. He referred to the caste system in India. The claimant stated that her parents were from different castes. She engaged in discussion with him.[50]On 18 August 2023 Mr Martin again attended the office spoke to Ms Fyfe. In doing so he referred to the Ku Klux Klan having Scottish roots. Ms Fyfe was present, but did not laugh in relation to the conversation. The claimant heard the conversation, and was concerned at the reference to that organisation.[51]That same day Sergeant Fraser emailed the claimant to respond to her message of 16 August 2023 and stated that the team including managers were working hard to support her, and her colleagues, through the challenging situation.[52]On 20 August 2023 Inspector Lumsden emailed the claimant about her message of 16 August 2023 setting out what was being done and hoping that a resolution could be found that was positive for all.[53]The claimant emailed Superintendent Stephen on 20 August 2023 in relation to concerns she had over behaviour towards her, which included that her tyres had been let down and her belief that staff had looked in her locker, and mentioned the comment on 18 August 2023, which she described as repugnant and sickening. The claimant also contacted Samantha Esther (a more senior police officer whose rank was not given in evidence) regarding the incident on 18 August 2023 with Mr Martin. Ms Esther emailed Inspector Lumsden and others on 20 August 2023 to relate that and said that the claimant had said Ms Fyfe was “allegedly laughing and joking regarding the origin of the KKK. She was unable to confirm what was said during conversation but believes the comments were inappropriate given that she is a person of colour in their company.”[54]The claimant emailed Inspector Lumsden on 23 August 2023, with her description of what had occurred on a date she gave as 17 August 2023, although it had been on 16th, and 18 August 2023. She said that she had not raised any complaint about it as she was “not clear about the intentions of the conversations or even the reasons why they were discussed, but it did make me feel uncomfortable….” Inspector Lumsden emailed the claimant that same day with regard to the matter, and stated that he was to ask Sergeants Fraser and Johnson to contact the claimant, and obtain information “so that we can review and address any concerns immediately.” He emailed her further the same day with a copy to the claimant’s union representative explaining that he wished the claimant to be met with that day, stating “I want to deal with this timeously.”[55]The claimant met Sergeant Fraser and Sergeant Chris Gardiner on 23 August 2023 at about 11pm. That was an hour after Sergeant Fraser’s shift had ended. Her trade union representative Mr Dave Ferguson was also present remotely. The meeting and discussion lasted until around 1.30am on 24 August 2024. The claimant stated initially that when the remark about the KKK had been made she “shut down”. When Sergeant Fraser asked what she meant by that, she did not give further detail. She said that she had not felt safe. Sergeant Fraser was concerned for the claimant’s health and safety from those remarks, in particular being concerned that if a member of the public was more overtly racist towards her she might react in a more severe manner to her detriment. He discussed his concerns with her. The claimant said that if such an incident happened again she would get on with her work and ignore the person, or words to that effect.[56]The claimant sent the sergeants an email on 24 August 2024 summarising the discussion. Sergeant Fraser emailed Inspector Lumsden with notes prepared by Sergeant Gardiner about the same meeting on 24 August 2023.[57]The claimant met Inspector Lumsden on 28 August 2023. The claimant recorded their conversation without informing him that she was doing so. Inspector Lumsden said that he was “really struggling to find a resolution to the relationship side of things in public office.” He explained that there was a post coming up in Stonehaven, and that as the claimant had been looking for a full-time post in Aberdeen that the Stonehaven post was fulltime may be of interest to her.[58]He explained that there would be more sole working. He said that he would need to clarify the hours but that there was a shift pattern. He also said that it was closer to her home, and had on-site or near car parking. He added that it would be a fresh start. The post arose as the incumbent was retiring.[59]On 29 August 2023 Sergeant Fraser emailed Inspector Lumsden after his conversation with Ms Fyfe with regard to the allegations. Ms Fyfe could not remember the conversations with Mr Martin until reminded. She was aware of the discussion on 16 August 2023. She vaguely remembered that on 18 August 2023 about the KKK, saying that she had found it strange but “didn’t fully engage with it.” Sergeant Fraser referred to the claimant’s “true character and vindictiveness”.[60]On 30 August 2023 Inspector Lumsden reviewed CCTV footage from 17 and 18 August 2023. He emailed Sergeants Fraser and Johnston about that noting that the person shown on the former date was not the same as the person on the latter date. Sergeant Fraser viewed further CCTV footage for 16 August 2023 and emailed on the same date and described Mr Martin attending the public office, described the claimant as “animated and smiling” and that there had been an almost 13 minute conversation between the claimant and Mr Martin.[61]On 31 August 2023 Inspector Lumsden emailed Ms Elaine Malcolm of HR of the respondent with an update, noting the comments by Ms Fyfe when questioned by Sergeants Fraser and Johnston, setting out proposals on how Mr Martin was to be spoken to by his manager and asking if Chief Inspector Scott or HR considered that to be an appropriate response.[62]On 14 September 2023 Inspector Lumsden emailed his line manager Chief Inspector Andy Scott noting that he had not received a response to the message of 31 August 2023, and Mr Scott replied the same day to confirm that the proposal was a proportionate response unless Mr Martin’s line management offered further information which would indicate a pattern of behaviour that would require further information.[63]The claimant attended the Stonehaven Police Office on 14 September 2023 and sent a message to Sergeant Lumsden the following day reporting that the staff had been welcoming and inclusive and requesting a “smooth, swift transition.” Stonehaven[64]The claimant accepted the proposal, and commenced work as a PESA at the Stonehaven Police Office from on or around 20 September 2023. The Stonehaven public office was not operational 24 hours per day, but from 7am to midnight for 7 days per week when PESAs were available to cover it. Not always was that the case. The office operated on the basis of one PESA working at any one time to maximise the opening hours coverage.[65]The claimant worked a shift pattern that had been intimated to her by HR which was an average of 35 hours of work, with one hour of a break each shift, per week, and full-time. It was arranged by three days of 7am to 4pm known as early shifts, followed by three days of 4pm to midnight known as late shifts, followed by three days off. That was the standard pattern for a PESA working full-time hours at Stonehaven.[66]A mistake was made by HR when giving the claimant the shifts she was to work. Although the pattern was correct the date it started was not. Because of the shifts of the other PESAs it resulted in a number of days when the claimant was working with one of them together, where the intention had been that one PESA work one each shift alone.[67]There were two other PESAs working there. Gavin Crawford worked a pattern of three early shifts, three late shifts and three days off, but worked a total of around 30 hours per week on average such that he did not always work full shifts and was not full-time. Ashley Ross worked a pattern of three late shifts, three days of rest, two early shifts and ten days of rest, and an average of around 25 hours per week, such that she was also not full-time.[68]On 21 September 2023 Sergeant John McOuat met the claimant to welcome her and later that day emailed the claimant and other PESAs being Gavin Crawford and Ashley Ross, along with Donna Kelly a PESA based at Laurencekirk Police Office, with arrangements in relation to the claimant. He asked that Mr Crawford and Ms Ross give the claimant peer to peer learning about the running of the public office in Stonehaven. The intention was that the claimant learn from them the core responsibilities of the PESA at Stonehaven.[69]The claimant did not undertake some of the duties referred to in that email, in particular airwave audits, banking and lost and found. Those had been duties carried out by the person who had retired. That was as Inspector di Meola wished the claimant to learn the core responsibilities first of all with consideration of additional responsibilities to be given after she had done so, and as the Inspector had given such duties to the other PESAs before the claimant had started.[70]A few days after the claimant started one of the cleaners at Stonehaven Ms Lilian Cargill said to her that she had heard that the claimant made a “mean biryani”. She gave the claimant the impression that she had learned of that, and about the claimant, from a social media group at Marischal College, Aberdeen.[71]On 5 October 2023 the claimant emailed Ms Jovia Edokpayi of HR with regard to her said shift pattern, saying that her colleagues had objected to her shift pattern. Ms Edokpayi replied the same day to state that the first point of contact was her line managers. The claimant replied to state that it was an HR issue as being one as to her contract. Ms Edokpayi replied to state that Ms Ross and Mr Crawford’s shift patterns were created based on the flexible pattern worked by the claimant’s predecessor, and to apologise for not checking with Inspector di Meola before offering the claimant her shift pattern, seeking to explain that an error had been made. She said that Inspector di Meola would arrange a meeting with her. The claimant replied setting out her position. The respondent gave consideration to asking the claimant to change to that correct pattern. Inspector di Meola emailed the claimant the same day as the earlier said messages to say that there would be a discussion about it.[72]On 7 October 2023 the claimant emailed Ms Edokpayi to inform her that Mr Crawford and Ms Ross were not happy with the claimant’s shift pattern. In an email exchange with the claimant Ms Edokpayi stated that she should have discussed it with Inspector di Meola first, and that the Inspector would be in touch with the claimant. Outcome of investigation by Inspector Lumsden[73]On 12 October 2023 Inspector Lumsden emailed the claimant with the outcome of the investigation into matters commenced in August 2023. He said that he had reviewed CCTV footage, which had video but not audio. He concluded that neither of the conversations on 16 or 18 August 2023 was “particularly suited to the workplace and I have given some suitable advice regarding this.” It added that the civilian driver [Mr Martin] had been spoken to by his manager, and had “provided assurance that no harm was intended by his topic of conversation”.[74]The claimant did not respond to that message. Claimant’s concerns in Stonehaven[75]On 12 October 2023 Inspector di Meola emailed Ms Lynsay Spence the respondent’s Disability Co-Ordinator about the claimant, referred to the claimant’s disability and assessments that had been conducted, and said that the claimant had sought the provision of a lift. She sought Ms Spence’s guidance.[76]On 3 November 2023 the claimant emailed Ms Ross commenting on the duties each of the PESAs was undertaking and stating that she did not see a level playing field.[77]On 4 November 2023 Sergeant McOuat emailed the claimant asking to have a meeting to discuss how the first six weeks had gone. He set out a list of topics proposed for discussion.[78]On or around 6 November 2023 Mr Crawford spoke to the claimant about a form she had not completed properly and said something to the effect whether she had had a “blonde moment”.[79]On 7 November 2023 the claimant emailed Sergeant McOuat alleging that Mr Crawford was not training her properly. He replied on 10 November 2023 asking if she had raised that with Mr Crawford, and asking her to let him know how she got on.[80]On 7 November 2023 the claimant emailed Superintendent Joanne McEwan a document in relation to women of colour in policing. She also prepared a document commenting on her experiences at Stonehaven, including a reference to what the cleaner had said when pointing to a WhatsApp on her phone, what she described as “inappropriate banter” by Mr Crawford referring to a blonde moment, what she claimed was an unequal division of tasks, and interactions with Sergeant McOuat. Her conclusion was that she was not being heard or taken seriously by colleagues, and she wondered if the staff at Marischal College had influence over those at Stonehaven.[81]On 8 November 2023 Inspector di Meola exchanged emails with Ms Spence in relation to the claimant, including as to reasonable adjustments for the claimant and whether or not the claimant required to use stairs. On duties Inspector di Meola did not consider that the claimant should be trained on all responsibilities, but once she was satisfied that the claimant had fully settled in and learned all the core functions of a PESA at Stonehaven she would look at additional roles or responsibilities for the claimant.[82]On 16 November 2023 the claimant emailed Sergeant McOuat with a document she had prepared. He responded on 19 November 2023 to state that they would discuss it at a meeting to be held on 22 November 2023.[83]On 19 November 2023 Sergeant McOuat emailed the claimant to thank her for a letter with concerns, and said that they could address that at their meeting.[84]On 20 November 2023 the claimant sent an email to Sergeant McOuat regarding a chair for her that had been ordered not having been delivered. It was a chair for use at her desk, not the counter of the public office. It was copied to Ms McHardy (H&S Adviser) who replied on 21 November 2023 who stated “As per my previous advice, you will need to contact Access to Work and get them to carry out an assessment of your workspace as this is the preferred option by Police Scotland. I am unable to make recommendations in relation to suitable chairs and we do not have anyone within Police Scotland that can carry out this role. The link for Access to Work is below, as I have stated the sooner that you contact them the better as there are significant delays with this process…….”[85]Also that day Mr Ray Higgins and Equality and Diversity Adviser of the respondent emailed Sergent McOuat to refer to the claimant’s disability, the issues she had raised, and to offer his assistance. The claimant also emailed Sergeant McOuat regarding a chair which had been ordered for her, which was the same one as Ms Ross used. Ms Michelle McHardy a Health and Safety Advisor at the respondent replied on 21 November 2023 saying that she was unsure why the chair was ordered for her and referring her to Access to Work, referring to a delay of six months.[86]On 21 November 2023 the claimant emailed Sergeant McOuat with a copy to Inspector di Meola attaching a document she had prepared with her “thoughts on paper”. It commenced by referring to the fact that “settling in fine and welfare fine”. She stated that the next day was her daughter’s birthday and she “didn’t want the meeting to be moaning/complaining in any way”. The document she attached had a lengthy series of comments on matters at work including training issues, her responsibilities, shifts and under the heading of EDI that duties or responsibilities were not being shared fairly, and that disability access needed to be considered.[87]That day Ms Michelle McHardy, Health and Safety Adviser, emailed the claimant with regard to a chair for use by her, when working at her desk. She provided a link to Access to Work and said that that was the preferred option for Police Scotland. She referred to a long backlog and the assessment taking six months.[88]The claimant emailed Sergeant McOuat on 22 November 2023 about a chair which had been ordered for her but which she had not been consulted about. She said that she could not wait 6 months to get a suitable chair through Access to Work, and attached a document about that. She questioned whether the chair was being deliberately prevented from reaching her or the wrong chair deliberately ordered.[89]The claimant met Inspector di Meola and Sergeant McOuat on 22 November 2023. They had a general discussion as to how the claimant was getting on at her role, and what could be done to assist her. No note of that meeting was taken.[90]On 30 November 2023 the claimant travelled to the Banchory police office where Ms Cath Webber gave her training on airways audits, labels and business cards, lost property and banking. OH report[91]On 7 December 2023 the claimant was seen by Ms Lindsey Roberts Occupational Health Adviser of Optima Health at Sergeant McOuat’s instigation. A report on the claimant was prepared on 9 December 2023. In relation to possible adjustments it stated “Consider change to working hours.” It later stated that the claimant was looking to reduce the amount of driving she has to do.[92]On 9 December 2023 Sergeant McOuat emailed Inspector di Meola in relation to the claimant. It addressed the claimant’s disability and had a section copied from the Occupational Health report. It referred to the claimant looking for flexible working to maximise her recovery time and minimise her disability flaring up. It stated that he had raised with her seeing how her proposals fitted in with the shift patterns of Mr Crawford and Ms Ross to maximise office opening times.[93]On 10 December 2023 the claimant emailed Sergeant McOuat asking for assistance in working out shift patterns. He replied on 12 December 2023 setting out how to make an application for flexible working using the respondent’s SCoPE computerised system. SCoPE allowed the respondent to track how changes to shift patterns would impact on the shift patterns of other staff and in turn what that meant for coverage of the Public Office at Stonehaven. It also calculated the impact there would be on pay and other conditions.[94]On 12 December 2023 Sergeant McOuat emailed Optima Health seeking clarity from them on driving in the dark, and the shift hours of 7am to 4pm and 4pm to midnight. He said that the claimant was looking to do compressed hours 10.00 to 20.00 two days on then two days off or similar. He sought clarity on their advice as to shift patterns.[95]Also on 12 December 2023 the claimant emailed Michelle McHardy seeking advice on options available to her. Ms McHardy replied the following day setting out her comments in reply to the claimant’s specific questions. The claimant raised the flexible working pattern and said that the claimant should be assessed by Ms McHardy, who stated that she would not be involved in that, it was done through the SCoPE process, and suggested that she contact her union rep. She referred to having to stand at the public counter, and Ms McHardy said that “this would be a matter for your line manager, P&D and OHU to discuss”. One matter raised was a step into the kitchen, which the respondent’s Estates Office later responded to in the month following that message by fitting a handrail next to it. Additional lighting was also provided.[96]On 13 December 2023 the claimant sent Sergeant McOuat a proposed shift pattern for a period of 9 weeks. She said that the pattern on SCoPE for station assistance 35 hour category A pattern B was ideal for her disability. Her proposal included one shift working from 5pm to 3am. The Stonehaven office is not open between midnight and 7am. The claimant’s proposed pattern had periods where there was no cover from a PESA. The claimant’s proposed shift pattern did not seek less than an average 35 hours per week. It included some 10 hour shifts being from 1pm to 11pm. It included periods of four consecutive days at work. The shifts did not have a repeating pattern, and varied days of work and rest. It proposed a start to it on 1 February 2024. The claimant said “If you are happy with it I can put it forward as a flexible request via scope. I am very grateful for your efforts to make this right for me.” She referred to her right foot pain worsening and sought a plan to prevent it getting worse. She said that she did not wish to miss work or accrue absence.[97]Inspector di Meola sent an email to Ms Edokpayi in relation to the claimant’s proposed shift pattern on the same day. She referred to large gaps of cover as follows: “Days where there is no PESA cover No dayshift PESA yet two PESAs on lateshift No dayshift PESA and one lateshift PESA 3 PESAs on duty during the same times – there aren’t even enough computers for this PO staying open until 3am which has never occurred here to my knowledge and there is certainly no requirement for this.”[98]Ms Edokpayi replied on 15 December 2023 and confirmed that the claimant required to apply for flexible working on SCoPE. She referred to having further OH advice and a meeting with the claimant.[99]On 21 December 2023 Sergeant McOuat responded to the claimant’s proposed shift pattern, setting out further (counter?) proposals and stating that he would “welcome your thoughts on same.” He provided his answers to specific questions the claimant had raised. He attached an excel document with a proposed shift pattern. It comprised a pattern of two early shifts each of 10 hours’ work with a one hour break, followed by a rest day, and three late shifts of 10 hours’ work with a one hour break followed by three rest days, which gave the claimant an extra rest day. It included 10 hour shifts either of 7am to 5pm or 2pm to midnight. It did not exactly match the standard early shift between 7am and 4pm, or the standard late shift of 4pm to midnight. He explained that the claimant’s proposed shifts which continued beyond midnight, and to 3am, went beyond the opening hours of the Public Office. 2024[100]On 4 January 2024 OH replied to Sergeant McOuat. It stated that the claimant’s pain worsened as the working week went on, she felt it beneficial to work fewer days in a row, and she had advised the claimant that it was a management not OH decision.[101]On 9 January 2024 the claimant met Sergeant McOuat, Mr Crawford and Ms Ross. She raised annual leave of two days, and one day was granted.[102]On 11 January 2024 the claimant emailed Chief Inspector Kerr about annual leave. It was approved by him that day. Also that day Inspector di Meola emailed the claimant asking her in future not to raise such matters with the Chief Inspector. She apologised that matters had been left stating that they could have been raised with her on 9 January 2024.[103]On 13 January 2024 the claimant spoke briefly to Sergeant McOuat and said to him that the pattern he had proposed was not suitable for her.[104]On 19 January 2024 the claimant emailed Sergeant McOuat raising a number of issues with him which she said “need to be addressed”. It extended over more than five pages. One matter was the shift pattern and she said that she “considered that as a white privilege.” She also stated “We have not yet had a proper discussion about my hours even though it has been raised as an issue from an Occupational Health report. I understand that I am required to complete the Scope application, but I consider this to be a waste of your time and my time if I put in all that effort only for you to say no. Therefore I am requesting a discussion with you.”[105]On the same day he emailed her with regard to the flexible working issue, and said that he had reviewed her pattern but “sadly this does not provide the core business hours/days we need covered”. He provided an updated spreadsheet with proposals and referred to putting that into SCoPE.[106]On 22 January 2024 the claimant emailed Ms Roberts of OH and stated that “her line manager is not open to a discussion.” She in effect asked for assistance, saying that she could “work given the right shift pattern”.[107]On 28 January 2024 Sergeant McOuat emailed the claimant and her union representative Mr Ferguson proposing a meeting and giving a plan of items to discuss. The claimant responded on 1 February 2024 stating that there were some matters missing from the plan. She stated as to shift pattern that “In our discussion I stated that the 2,2,2 shift pattern would be more suited to my disability needs. I am requesting to move to the 2,2,2 shift pattern as this will provide adequate rest between shifts for me to work effectively full time. For the avoidance of doubt – 2 early (7am to 4pm), 2 late (4pm to midnight) and 2 night shifts (5pm to 3am in line with my Occ Health report) with four rest days.” Grievance against claimant[108]On 4 February 2024 Mr Crawford emailed his Sergeant, James Griffin, with a copy of his grievance. Sergeant Griffin forwarded to Inspector di Meola stating that he thought it minor but part of a much bigger picture involving the claimant. Inspector di Meola forwarded it to Ms Edokpayi. He alleged that she had asked him for folders that he could not find, and when he had not been able to she said to him “I know you know where they are, don’t take the piss out of me.” He set out what he claimed were the circumstances of her doing so, that she was swearing at him, and the position related to that. He also referred to his having made a comment as to a “just a blonde moment that anyone could have had” and that being in relation to October or November 2023 when, he said, the claimant had accidentally lodged a blank Lost and Found report.[109]Sergeant Griffin passed a copy of the grievance to Sergeant McOuat that day, stating that he thought it was a minor matter, but part of a bigger picture involving the claimant. No disciplinary or other action was taken by the respondent against the claimant in relation to that grievance. Meeting 9 February 2024[110]On 9 February 2024 a meeting took place between the claimant, Inspector di Meola and Sergeant McOuat. An email from Sergeant McOuat that day reasonably accurately records what was discussed. It included a request that the claimant make a flexible work application on SCoPE. The claimant indicated that she was not willing to do so until there had been a meeting with Health and Safety, line management, HR and her union representative GP fit note[111]On 26 February 2024 the claimant consulted her GP who issued a fit note stating that she “may be fit for work taking account of the following advice….. If available, and with your employer’s agreement you may benefit from ….workplace adaptations….. altered shift pattern 4 days on (two early and two late) then 2 days off. Please consider this as a permanent arrangement.” The claimant had been off work for two days with foot pain. Meeting 27 February 2024[112]On 27 February 2024 the claimant attended an absence support meeting with her union representative Mr Ferguson, Ms Edokpayi of HR, Inspector di Meola and Sergeant McOuat. She provided the fit note from her GP at that meeting. Nicola Richardson a People Direct Advisor was present to take notes. The note of that meeting provided by her is a reasonably accurate record of it.[113]Sergeant McOuat said that he had looked at the shift pattern the claimant proposed and said that “it does not work for here.” He explained the proposal for shifts needed to be put on SCoPE by her. The claimant said that “I will not come to any agreement about a shift pattern” and said that she did not want to enter the proposed shift pattern on SCoPE. Mr Ferguson advised the claimant to make the application for flexible working on SCoPE. The claimant was told to go absent if her feet were sore. She said that that was not a resolution. The claimant said that she was uncomfortable with the shift pattern being changed from what her doctor proposed. Mr Ferguson later stated about SCoPE that “it makes it easier for everyone to see where all the gaps are and then build the flexible working plan around that so that you get what you require. It is not for the doctor to say what you work the business takes it into consideration but it is the business that makes the decision and you can have a discussion with John and Jovia around the pattern.” The claimant asked about a lift being installed and was told that that was not deemed a reasonable adjustment as she could undertake her duties on the ground floor. She said that she felt isolated.[114]After that meeting Sergeant McOuat had a meeting with the claimant. He explained the administrative error that had led to the claimant being on the initial and wrong shift pattern, and discussed a different pattern with effect from 8 April 2024. He showed her how to put the pattern she wished onto SCoPE.[115]On 29 February 2024 Sergeant McOuat emailed the claimant with a health and safety assessment, set out what he had done, set out what he had still to do, and set out what the claimant had to do which included making a flexible work application. He set out that the PESA role was always a lone one to provide maximum opening times to the public. He said that he would contact Estates about lowering the counter. He outlined his proposal for an amended working rota which amounted to two early shifts of ten hours, one day of rest, three late shifts of ten hours and three days of rest. That was essentially the same proposal he had made on 21 December 2023. It had an average of 35 working hours per week, the same as the pattern of 3 standard early shifts, 3 standard late shifts and 3 days of rest. He set out the hours of work, and hours of rest, for that proposed rota. Emails regarding claimant raising grievance[116]On 29 February 2024 the claimant emailed Ms Edokpayi in relation to an offer of mediation, rejecting that. The claimant set out her position, stated that she must be moved to protect her and stated that she wished to put forward a formal grievance.[117]On 1 March 2024 the claimant emailed Sergeant McOuat setting out her position, doing so with eight numbered paragraphs, and stating that her grievance needed to be addressed. She responded to the proposed shift pattern by stating that it “means that there will be very little cross over with other PESAs. I will not be able to learn through observing which I have been doing because this has been the only way as they have refused to train me on the job.”[118]He replied that day to ask that a grievance be raised via the HR/People Development portal. The claimant did not at any point raise a formal grievance using that portal.[119]Ms Edokpayi replied to the claimant’s email on 6 March 2024 stating that the claimant needed to state the grievance(s) and advise what resolution she was seeking in accordance with the policy. A link to that policy was provided.[120]The claimant on 7 March 2024 emailed Ms Edokpayi to state that she was raising the grievance through HR, she wished to arrange a meeting to do this or she could send her grievance in writing to Ms Edokpayi. Ms Edokpayi replied on the same day stating that ordinarily a grievance was submitted via the line manager, but if she preferred could be via the People Direct portal.[121]Ms McHardy emailed Inspector di Meola that day to say that she thought they had done all they could to support the claimant and it was now up to her to contact Access to Work. After the report was received from them it could be looked at. Chair incident[122]On 8 March 2024 the claimant emailed Sergeant McOuat regarding wires she said had been wound around her chair, and which she had since removed. He discussed it with her, and emailed her in regard to it that day with advice on what to do in future if such an incident took place. He said that he had no lines of enquiry he could follow in relation to it.[123]On 9 March 2024 Sergeant McOuat sent a message to the claimant following up on the email of 29 February 2024. It stated that he had heard from Ms McHardy and from Estates and that for a reasonable adjustment or lowering the counter or seating she would need to make an Access to Work request online or by telephone. He said that he appreciated that she was to discuss with Ms McHardy what could be put in place whilst awaiting the Access to Work assessment. He asked her to keep him posted on her own progress on the points he had noted for her to do.[124]On 30 March 2024 Inspector di Meola emailed the claimant stating that she and Sergeant McOuat were committed to supporting her and asking if she had completed the paperwork for Access to Work or a Disability Passport [a document which set out what a disabled person sought]. The claimant replied on 5 April 2024 to state that she had passed the health and safety assessment form to Sergeant McOuat and was waiting for a signed copy of it to take matters forward. Claimant’s absence[125]The claimant went off sick on 11 April 2024 suffering from foot pain and anxiety. She considered that she was not able to attend work unless the shift pattern her GP had set out in the said fit note was followed. She remained absent from work thereafter until her employment terminated as referred to below.[126]The claimant received full pay until 16 May 2024 when she commenced on half pay. On that date her union applied on her behalf for an extension of sick pay. An application form to do so was completed, and submitted on the claimant’s behalf.[127]The claimant’s application was considered by Assistant Chief Constable Mark Sutherland. He decided that full sick pay would not be extended to the claimant at that time, in a letter dated 3 July 2024. He stated that from the information available to him all reasonable adjustments that could have been put in place for the claimant had been implemented. He took into account that the claimant had not followed procedure for seeking flexible working or Access to Work.[128]On 26 July 2024 Sergeant McOuat emailed the claimant asking for her permission to be referred further to OH, whether she had applied to Access to Work, and related matters. The claimant responded that day to state that she had been advised by her union not to communicate with anyone from the respondent. Other Matters[129]If the respondent wished to amend an employee’s shift pattern it could do so on 28 days’ notice, and itself enter the change on SCoPE.[130]Inspector Lumsden caused enquiries to be made of the PESAs in Aberdeen when the claimant’s allegation of being excluded from a WhatsApp group was made, during 2025. Sergeants asked the PESAs if such a group existed, and were told that it did not.[131]There were many messages exchanged on the WhatsApp group of PESAs in Aberdeen in relation to the claimant, which were generally highly critical of her. They did not mention her race, ethnic origin or nationality, or similar.[132]The respondent has commenced a disciplinary investigation into that group, which has not concluded.[133]The counter at the Stonehaven police office has a section constructed largely of wood with a flat surface, and cupboards below it. Above the flat surface is a screen extending to the ceiling but with a section left vacant so that documents can be passed from someone attending at the office to the PESA. There are no seats at the public office for those behind the counter. There is very restricted space behind that counter and not sufficient space to have a chair similar to the height of a bar stool to be used by someone working there. PESAs at Stonehaven stood when attending to those presenting themselves at that office.[134]At Marischal College there is a public office with a form of desk, at which two PESAs normally sit. It also has a screen above it, with a section left vacant. The height of the desk is similar to that for most office desks, such that a normal chair can be placed behind it to work at, as PESAs there did. They were therefore able to attend to those presenting themselves at that office when seated.[135]The claimant had assistance from her union representative Dave Ferguson from August or September 2023 onwards. The claimant provided her union with documentation in relation to the claim on a date not given in evidence. The claimant prepared the Claim Form herself, prior to receiving legal support from the union and solicitors appointed by the union.[136]The claimant commenced early conciliation on 16 April 2024. The certificate therefor was issued on 28 May 2024. The Claim Form in this claim was presented by the claimant herself on 15 June 2024 for case 800843/2024. A second Claim Form was presented by the claimant’s solicitors on 28 June 2024, case number 800945/2024. The second Claim Form was treated as superseding the first. Submissions for claimant[137]The claimant provided a full written submission and supplemented that orally. In essentials the Tribunal was moved to find in favour of the claimant accepting her evidence, and make her a financial award in terms of the Schedule of Loss prepared. Respondent’s submission[138]The respondent also provided a full written submission and supplemented that orally. In essentials the Tribunal was moved to find in favour of the respondent accepting its evidence, and dismiss the claim.
Law
[139]The law relating to discrimination is found in statute and case law, and account may be taken of guidance in a statutory code. (i) Statute[140]Section 4 of the Equality Act 2010 (“the 2010 Act”) provides that disability race and sex are each a protected characteristic.[141]Section 13 of the Act provides as follows: “13 Direct discrimination 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.”[142]Section 20 of the Act provides as follows: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…… (13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table the Schedule specified in the second column Part of this Act Applicable Schedule ……Part 5 (work) Schedule 8” [Part 5 includes section 39][143]Section 21 of the Act provides: “21 Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person….”[144]Section 23 of the Act provides “Comparison by reference to circumstances (1) On a comparison of cases for the purposes of sections 13, 14 and 19 there must be no material difference between the circumstances relating to each case….”[145]Section 26 of the Act provides “26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are …. disability…. race…. sex”[146]Section 27 of the Act provides: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— ……… (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”[147]Section 39 of the Act provides: “39 Employees and applicants An employer(a) (A) must not discriminate against a person(b) (B) – …….. (d) by subjecting B to any other detriment.”[148]Section 123 of the Act provides “123 Time limits (1) Subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable……. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[149]Section 136 of the Act provides: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.”[150]Section 212 of the Act defines “substantial” as “more than minor or trivial.”[151]Schedule 8 to the Act has provisions as to making reasonable adjustments, and at paragraph 20 states: “Part 3 Limitations on the Duty Lack of knowledge of disability, etc 20 (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) [in any case referred to in Part 2 of this Schedule], that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[152]The provisions of the Act are construed against the terms of the Equal Treatment Framework Directive 2000/78/EC. Its terms include Article 5 as to the taking of “appropriate measures, where needed in a particular case”, for a disabled person, “unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”[153]The Directive is assimilated law by the Retained EU Law (Revocation and Retention) Act 2023. (ii) Case law (a) Direct discrimination[154]The basic question in a direct discrimination case is: what are the grounds or reasons for the treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagaragan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15.[155]Further guidance was given in Amnesty, in which the then President of the EAT explained the test in the following way: ''… The basic question in direct discrimination case is what is or are the “ground” or “grounds” for the treatment complained of. …..… In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself…… In other cases—of which Nagarajan is an example—the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant … The distinctions involved may seem subtle, but they are real … There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is—necessarily—what was the ground of the treatment complained of (or—if you prefer—the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.''[156]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions referred to further below) – as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377. Less Favourable Treatment[157]In Glasgow City Council v Zafar [1998] IRLR 36, a House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. The claimant must show less favourable treatment, one of whose effective causes was the protected characteristic relied on. Comparator[158]In Shamoon v Chief Constable of the RUC [2003] IRLR 285, also a House of Lords authority, Lord Nicholls said that a tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.[159]The comparator, where needed, requires to be a person who does not have the protected characteristic but otherwise there are no material differences between that person and the claimant. Guidance was given in Balamoody v Nursing and Midwifery Council [2002] ICR 646, in the Court of Appeal.[160]The issue of a comparator was addressed by the EAT in Jones v Secretary of State for Health and Social Care [2025] EAT 76.[161]The EHRC Code of Practice on Employment provides, at paragraph 3.28: “Another way of looking at this is to ask, 'But for the relevant protected characteristic, would the claimant have been treated in that way?'” Substantial, not the only or main, reason[162]In Owen and Briggs v Jones [1981] ICR 618 it was held that the protected characteristic would suffice for the claim if it was a “substantial reason” for the decision. In O’Neill v Governors of Thomas More School [1997] ICR 33 it was held that the protected characteristic needed to be a cause of the decision, but did not need to be the only or a main cause. In Igen v Wong [2005] IRLR 258 the test was refined further such that it part of the reasoning that was more than a trivial part of it could suffice in this context: it referred to the following quotation from Nagarajan “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”[163]The Court considered arguments as to whether an alternative wording of no discrimination whatsoever was more appropriate, and the wording of EU Directives. It concluded as follows: “In any event we doubt if Lord Nicholls' wording is in substance different from the 'no discrimination whatsoever' formula. A 'significant' influence is an influence which is more than trivial. “[164]The law was summarised in JP Morgan Europe Limited v Chweidan [2011] IRLR 673, heard in the Court of Appeal. Lord Justice Elias said the following (in a case which concerned the protected characteristic of disability): “5 Direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant's disability. In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment. If it is a proscribed reason, such as in this case disability, then in practice it will be less favourable treatment than would have been meted out to someone without the proscribed characteristic: see the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 8– 12. That is how the tribunal approached the issue of direct discrimination in this case. 6 In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, ie if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason”. (b) Reasonable adjustments Provision, criterion or practice[165]The provision, criterion or practice (PCP) applied by the employer requires to be specified. It is not defined in the Act. In case law in relation to the predecessor provisions of the 2010 Act the courts made clear that it should be widely construed. In Hampson v Department of Education and Science [1989] ICR 179 it was held that any test or yardstick applied by the employer was included in the definition. Guidance on what was a PCP was given in Essop v Home Office [2017] IRLR 558.[166]In Ishola v Transport for London [2020] IRLR 368 Lady Justice Simler, as she then was, considered the context of the words PCP and concluded as follows: “In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”[167]The Equality and Human Rights Commission Code on Employment at paragraph 4. 5 states as follows: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase 'provision, criterion or practice' is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a 'one-off' or discretionary decision.”[168]What a provision, criterion or practice can be was considered in Carrera v United First Partners Research UKEAT/0266/15. A liberal rather than an overly technical approach should be adopted. Substantial disadvantage[169]Guidance is given in Sheikholeslami. Substantial has the section 212 meaning. It is applied to disabled persons, and the claimant herself, separately. The former is measured on an objective basis by comparison with what the position would be if the disabled person did not have a disability. What are reasonable adjustments[170]Guidance on a claim as to reasonable adjustments was provided by the EAT in Cosgrove v Caesar and Howie [2001] IRLR 653,Royal Bank of Scotland v Ashton [2011] ICR 632, and by the Court of Appeal in Newham Sixth Form College v Saunders [2014] EWCA Civ 734, and Smith v Churchill’s Stair Lifts plc [2005] EWCA Civ 1220. The reasonableness of a step for these purposes is assessed objectively, as confirmed in Smith v Churchill. The need to focus on the practical result of the step proposed was referred to in Ashton. These cases were in relation to the predecessor provision in the Disability Act 1995. Their application to the 2010 Act was confirmed by the EAT in Muzi-Mabaso v HMRC UKEAT/0353/14.[171]The Court in Saunders stated that: “the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP.”[172]In Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 the EAT held that the failure to carry out an assessment did not of itself constitute a failure to make a reasonable adjustment. If the employer makes such adjustment as in fact is reasonable, then whether that is achieved by chance or even in ignorance of the relevant legal duty, there is no breach of the law even though there was no assessment.[173]The duty to make reasonable adjustments does not therefore extend to a duty to carry out any kind of assessment of what adjustments ought reasonably to be made. A failure to carry out such an assessment may nevertheless be of evidential significance. In Project Management Institute v Latif [2007] IRLR 579 the EAT stated that “…We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate…… a failure to carry out a proper assessment, although it is not a breach of the duty of reasonable adjustment in its own right, may well result in a respondent failing to make adjustments which he ought reasonably to make. A respondent, be it an employer or qualifying body, cannot rely on that omission as a shield to justify a failure to make a reasonable adjustment which a proper assessment would have identified….. We accept, however, that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing. Indeed, in certain circumstances we think it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented. To take a simple example, where a code provides an example of an adjustment which on the face of it appears appropriate, that is something the tribunal should take into account. We think that it would be perfectly proper for a tribunal to expect an employer to show why it would not have been reasonable to make that adjustment in the particular case, although of course the employer must have a proper opportunity of dealing with the matter.”[174]An adjustment is reasonable if there is a chance that it alleviates the substantial disadvantage – South Staffordshire and Shropshire Healthcare NHS Foundation Trust v Billingsley UKEAT/0341/15. On the other hand if there is no reasonable prospect of the adjustment enabling the employee to return to work it would not be reasonable to require it – Hindmarch v North East Ambulance NHS Foundation Trust [2025] EAT 87.[175]The Code of Practice includes the following:6.1 “The duty to make adjustments requires employers to take such steps as it is reasonable to have to take, in all the circumstances of the case, in order to make adjustments. The Act does not specify any particular factors that should be taken into account. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case.6.2 There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable.6.3 Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make.6.4 Many adjustments do not involve making physical changes to premises. However, where such changes need to be made and an employer occupies premises under a lease or other binding obligation, the employer may have to obtain consent to the making of reasonable adjustments. These provisions are explained in Appendix 3.6.5 If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise.6.6 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take: whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.6.7 Ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case.”[176]Appendix 3 is not relevant for the purposes of this case.[177]Paragraph 6.33 gives a series of examples of adjustments. The first includes to widen a doorway for a wheelchair user.[178]The Access to Work scheme is addressed at paragraphs 6.36 – 6.38 as follows: “The Access to Work scheme may assist an employer to decide what steps to take. If financial assistance is available from the scheme, it may also make it reasonable for an employer to take certain steps which would otherwise be unreasonably expensive. However, Access to Work does not diminish any of an employer's duties under the Act. In particular: The legal responsibility for making a reasonable adjustment remains with the employer – even where Access to Work is involved in the provision of advice or funding in relation to the adjustment. It is likely to be a reasonable step for the employer to help a disabled person in making an application for assistance from Access to Work and to provide on-going administrative support (by completing claim forms, for example). It may be unreasonable for an employer to decide not to make an adjustment based on its cost before finding out whether financial assistance for the adjustment is available from Access to Work or another source.” (c) Harassment General[179]Guidance was given by the then Mr Justice Underhill in Richmond Pharmacology v Dhaliwal [2009] IRLR 336, in which he said that it is a 'healthy discipline' for a tribunal to go specifically through each requirement of the statutory wording, pointing out particularly that(1) the phrase 'purpose or effect' clearly enacts alternatives;(2) the proviso in sub-s (2) is there to deal with unreasonable proneness to offence (and may be affected by the respondent's purpose, even though that is not per se a requirement);(3) 'on grounds of' is a key element which may or may not necessitate consideration of the respondent's mental processes (and it may exclude a case where offence is caused but for some other reason);(4) while harassment is important and not to be underestimated, it is 'also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase'. Environment[180]The extent of the protection conferred by the section was examined by the Court of Appeal in Land Registry v Grant 2011 IRLR 748 which focused on the words “intimidating, hostile, degrading, humiliating and offensive” and said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upset being caught”.[181]There can be harassment under this provision arising from an isolated incident; for an example, see Lindsay v London School of Economics [2014] IRLR 218.[182]In Weeks v Newham College of Further Education UKEAT/0630/11 the EAT stated the following: “A decision of fact in a context such as this must be sensitive to all the circumstances. Context is all-important. ……..We would urge caution for a tribunal in placing too much weight upon timing. Where conduct is directed toward the sex of the victim, it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The fact of there being no immediate complaint cannot prevent a complaint being justified, but equally we cannot say that it is a factor that a tribunal is not entitled to consider as part and parcel of the overall circumstances that it has to gauge….. However, it must be remembered that the word is “environment”. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration.” Related to[183]The test for “related to” is different to that for whether conduct is “because of” a characteristic. It is a broader and more easily satisfied test – Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and another EAT 0039/19. The fact that the claimant considers the conduct related to a particular characteristic is not necessarily determinative, nor is a finding about the motivation of the alleged harasser. There must be some basis from the facts found which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in the manner alleged in the claim. In that case the Employment Appeal Tribunal held it is a matter for the Tribunal to determine making a finding of fact drawing on all the evidence before it. There must be some feature of the factual matrix identified by the Tribunal which leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal should articulate clearly what feature of the evidence leads it to that conclusion. The Tribunal should consider the matter objectively.[184]Warby v Wunda Group Plc EAT 0434/11 held that the conduct should be viewed in context in assessing whether the conduct is related to the protected characteristic. The then President of the Employment Appeal Tribunal, Mr Justice Langstaff, upheld a Tribunal’s decision that an employee accused by her superior of having lied about a miscarriage was not subjected to conduct “related to” her sex within the meaning of the sex discrimination provisions then in force. Langstaff P held that context was important and that the tribunal had been entitled to find that the accusation was made in the context of a dispute over a work matter, about which the employer believed that the employee was lying. Thus the conduct complained of was an emphatic complaint about alleged lying; it was not made because of the employee’s sex, because she was pregnant or because she had had a miscarriage. While that case considered the predecessor legislation, the issue was whether the conduct was “related to” the protected characteristic.[185]In Kelly v Covance Laboratories Ltd [2016] IRLR 338 an instruction not to speak Russian at work, so that any conversations could be understood by English speaking managers was not related to race or national origins, even though it potentially could have been. The conduct was because the employer was suspicious about what was being said and could not understand. Viewed in the context of the company’s business and risks the employer’s explanation for the conduct was accepted and the conduct was not related to race or national origins.[186]In UNITE the Union v Nailard [2018] IRLR 730 the Tribunal had held that a failure to address a sexual harassment complaint made against elected officials of the union could amount to harassment related to sex “because of the background of harassment related to sex”. The Court of Appeal considered that went too far. There was a reminder that Tribunals should focus on the conduct of the person who carried out the act and determine whether that conduct is related to the protected characteristic (not whether the conduct of someone else or some other conduct is related to the protected characteristic).[187]Para 7.9 of the Equality and Human Rights Commission Code of Practice: Employment states that the provisions in section 26 should be given 'a broad meaning in that the conduct does not have to be because of the protected characteristic'. This was applied in Hartley v Foreign and Commonwealth Office UKEAT/0033/15 where it was held that whether there is harassment must be considered in the light of all the circumstances; in particular, where it is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[188]At paragraph 7.10 of the Code the breadth of the words “related to” is noted and some examples are provided. It gives the example of a female worker who has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex. At paragraph 7.11 the Code states that in the examples there was “a connection with the protected characteristic”.[189]The question of whether the conduct in question “relates to” the protected characteristic requires a consideration of the mental processes of the putative harasser (GMB v Henderson 2017 IRLR 340) bearing in mind that there should be an intense focus on the context in which the words or behaviour took place (Bakkali v Greater Manchester 2018 IRLR 906). In Bakkali the question was whether a comment as to whether an individual was said to be still promoting ISIS/Daesh was related to race. The Tribunal found it was not as it related to a previous conversation. The Employment Appeal Tribunal emphasised that context is important and the words used must be seen in context. In considering whether the conduct is related to the protected characteristic there should be an intense focus on the context of the offending words or behaviour. The mental processes of the perpetrator are relevant in assessing the issue.[190]In Raj v Capita 2019 UKEAT 0074/2019 the Employment Appeal Tribunal upheld a Tribunal which had found that the massage at his desk by a manager was not conduct related to sex. The conduct was misguided encouragement by a manager. It was an isolated incident and the context was key: a standing manager over a sitting team member in a gender neutral part within an open plan office. In that case the Tribunal did not expressly consider the burden of proof provisions but had found that the conduct was in no sense whatsoever related to sex.[191]Further guidance in relation to “related” to was given in Carozzi v University of Hertfordshire 2024 EAT 169 in which it is stated that “the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”.[192]In Windsor Clive v Forsbrook [2024] EAT 183 it was said that “the concept cannot be so broad as to be meaningless. I am of the view that, as Ms Roddick argues, the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary, therefore, for an ET to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.” Reasonable[193]In Pemberton v Inwood [2018] IRLR 542 the claimant alleged direct discrimination arising from the revocation of his permission to officiate ('PTO') as a Church of England priest and refusal to grant him an Extra Parochial Ministry Licence ('EPML') because he had entered into a samesex marriage, contrary to the doctrines of the Church. The Tribunal held that the claimant’s view was not reasonable as he had entered into his marriage knowing it was considered contrary to Church doctrine and would have the consequence that his PTO would be revoked and an EPML refused. It also held that the enforcement of those decisions involved no aggravating features. The Court of Appeal (approving the decision of the EAT) upheld the tribunal's decision. It held that the claimant's understanding of the position formed part of the relevant context and the employment tribunal had been entitled to take it into account when determining whether his response was reasonable. More specifically, given that the conduct in question was covered by the defence permitted by the Equality Act 2010, Schedule 9, paragraph 2, if there were no aggravating factors, it could not be unreasonable for that conduct to have the effect proscribed in s 26(1)(b): 'to conclude otherwise would make a nonsense of providing the defence to Schedule 9 in the first place'.[194]In Driskel v Peninsula Business Services Ltd [2000] IRLR 151 the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered and that throughout the tribunal should remain conscious of the burden and standard of proof.”[195]The Tribunal is required to determine both the actual effect on the particular individual complainant and the question whether that was reasonable in the circumstances of the case - Fidessa plc v Lancaster UKEAT/0093/16 in which an appeal was allowed on the basis that the employment tribunal, whilst finding that it would have been reasonable for the particular conduct to have had the necessary effect, had failed to make a finding as to what the effect on the claimant had been.[196]In Ali v Heathrow Express Operating Co Ltd [2022] IRLR 558 as part of a security exercise at Heathrow a suspicious package was placed in a public part of the airport to see if it would be discovered by staff. It had wires sticking out of it and written on it the phrase 'Allahu Akbar' in Arabic. The claimant, a Muslim, learned about it in an email giving the results of the security exercise. The Tribunal that in the circumstances it had not been reasonable to take the offence that he had. Those circumstances included in particular that the employer had been carrying out the security exercise in the light of recent terrorist incidents in which the phrase had been used and the claimant should have appreciated this. The EAT held that the ET had been within its discretion in reaching this decision. EHRC Code of Practice: Employment[197]The Code (at paragraph 8.20) gives the example of a club manager at a meeting making derogatory comments and jokes about women to a mixed sex audience. It is not that person’s intention to offend or humiliate anyone, however the contact may amount to harassment if the effect of it is to create a humiliating or offensive environment for a man or woman in the audience. (d) Victimisation[198]There are two key questions –(i) has the claimant done a protected act(ii) if so did she suffer a detriment because she had done so. The first aspect requires an allegation of discrimination, rather than more general comments - Page v Lord Chancellor UKEAT/0304/18/LA. The second aspect is a causation test - Greater Manchester Police v Bailey [2017] EWCA Civ 425. In determining whether a detriment was because of a protected act, it is important that the protected act is identified with precision and that the relationship between the detriment and that act specifically is examined: JJ Food Service Ltd v Mohamud EAT 0310/15, Guidance on the issues that arise is in Chapter 9 of the EHRC Code of Practice. The burden of proof provisions apply to the terms of section 27. (e) Detriment[199]The key question is - “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” derived from Shamoon. The House of Lords confirmed the position in Derbyshire v St Helens Metropolitan Borough Council 2007 ICR 841. It was stated that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances. It is to be interpreted widely in this context. It is not a wholly objective test and it is enough that a reasonable worker might take such a view, even if not all reasonable workers would have done so.– Warburton v Chief Constable of Northamptonshire Police EA-2020-000376 and EA-2020-001077 (f) Vicarious liability[200]Section 109(1) of the Act provides that anything done in the course of a person’s employment must be treated as also done by the employer, and (3) provides that 'it does not matter whether that thing is done with the employer's … knowledge or approval'. In Jones v Tower Boot Co Ltd [1997] IRLR 168 the Court of Appeal held that it was right to adopt a purposive construction of the legislation, and not to apply the concept of vicarious liability under the common law for what in Scotland is the delictual act of another employee. In Forbes v LHR Airport Ltd [2019] IRLR 890 an employee posted what was a racist picture and comment on her private Facebook page. It was shown then to the claimant who had not had access to it from the page. The claimant complained to the employer who disciplined the employee for posting the message with a final warning, and she also apologised. The claimant brought a claim of harassment against the employer, arguing that it was vicariously liable under s.109 The ET rejected her claim, partly on the basis that the employer was not vicariously liable on the facts. The EAT dismissed the claimant's appeal, holding that the ET had reached a decision that was properly open to it on the facts. In particular, it had permissibly had regard to the following:(1) the employee had not been at work when making the post;(2) her post made no reference to the claimant or any other work colleagues;(3) she had not used the employer's equipment. Although the employer had disciplined the employee that was not to be construed as a tacit acceptance that she had been acting in the course of employment. (g) Burden of proof[201]There is a normally two-stage process in applying the burden of proof provisions in discrimination cases, whether for direct discrimination or victimisation, as explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish a first base or prima facie case by reference to the facts made out. If he does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is held to be inadequate, it is necessary for the tribunal to conclude that the claimant’s allegation in this regard is to be upheld. If the explanation is adequate, that conclusion is not reached. It may not always be necessary to follow that two stage process as explained in Laing v Manchester City Council [2006] IRLR 748.[202]Discrimination may be inferred if there is no explanation for unreasonable behaviour (The Law Society v Bahl [2003] IRLR 640 (EAT), upheld by the Court of Appeal at [2004] IRLR 799.)[203]In Ayodele v Citylink Ltd [2018] ICR 748, the Court of Appeal rejected an argument that the Igen and Madarassy authorities could no longer apply as a matter of European law, and held that the onus did remain with the claimant at the first stage. That it was for the claimant to establish primary facts from which the inference of discrimination could properly be drawn, at the first stage, was then confirmed in Royal Mail Group Ltd v Efobi [2019] IRLR 352 at the Court of Appeal, and upheld at the Supreme Court, reported at [2021] IRLR 811. The Supreme Court said the following in relation to the terms of section 136(2): “ s 136(2) requires the employment tribunal to consider all the evidence from all sources, not just the claimant's evidence, so as to decide whether or not 'there are facts etc'. I agree that this is what s 136(2) requires. I do not, however, accept that this has made a substantive change in the law. The reason is that this was already what the old provisions required as they had been interpreted by the courts. As discussed at paras [20]–[23] above, it had been authoritatively decided that, although the language of the old provisions referred to the complainant having to prove facts and did not mention evidence from the respondent, the tribunal was not limited at the first stage to considering evidence adduced by the claimant; nor indeed was the tribunal limited when considering the respondent's evidence to taking account of matters which assisted the claimant. The tribunal was also entitled to take into account evidence adduced by the respondent which went to rebut or undermine the claimant's case.”[204]The Court said the following in relation to the first stage, at which there is an assessment of whether there are facts established in the evidence from which a finding of discrimination might be made: “At the first stage the tribunal must consider what inferences can be drawn in the absence of any explanation for the treatment complained of. That is what the legislation requires. Whether the employer has in fact offered an explanation and, if so, what that explanation is must therefore be left out of account.”[205]In Igen Ltd v Wong [2005] ICR 931 the Court of Appeal said the following in relation to the requirement on the respondent to discharge the burden of proof if a prima facie case was established, the second stage of the process if the burden of proof passes from the claimant to the respondent: “To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.”[206]The Tribunal must also consider the possibility of unconscious bias, as addressed in Geller v Yeshurun Hebrew Congregation [2016] ICR 1028. It was an issue addressed in Nagarajan.[207]The EAT gave general guidance on the shifting of the onus of proof in Field v Steve Pye and Co Ltd [2022] EAT 68. (h) Jurisdiction[208]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur [1989] IRLR 387. The Court of Appeal has cautioned tribunals against applying the concepts of 'policy, rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner, [2003] IRLR 96). Only acts of discrimination can fall within conduct extending over a period for this purpose – South West Ambulance v King [2020] IRLR 168.[209]Whilst not a conclusive factor, that there are different individuals or protected characteristics or both can be relevant – Aziz v FDA [2010] EWCA Civ 304, Greco v General Physics UK Ltd EAT 01114/16 and Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40.[210]Where a claim is submitted out of time, there is no formal burden of proof for a claimant to show that it is just and equitable to allow it to be received is on the claimant, but there is a burden on a claimant to persuade the Tribunal to exercise its discretion (Polystar Plastic Ltd v Liepa [2023] EAT 100.[211]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 the Court of Appeal held: “First, it is plain from the language used (‘such other period as the employment tribunal thinks just and equitable’) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under s 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728, paras [30]-[32], [43], [48]; and Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para [75]. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[212]That was emphasised in Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23, which discouraged use of what has become known as the Keeble factors as form of template for the exercise of discretion. Section 33 of the Act referred to is in any event not a part of the law of Scotland.[213]Some cases at the EAT held that even if the tribunal disbelieves the reason put forward by the claimant for delay it should still go on to consider any other potentially relevant factors such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, Pathan v South London Islamic Centre UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd UKEAT/0291/14.[214]The EAT decided that issue differently in Habinteg Housing Association Ltd v Holleran UKEAT/0274/14. There it was held, in brief summary, that a failure to provide a reasonable explanation for the delay in raising the claim was fatal to the issue of what was just and equitable.[215]In Rathakrishnan. there was a review of authority on the issue of the just and equitable extension, as it is often called, including the Court of Appeal case of London Borough of Southwark v Afolabi [2003] IRLR 220, in which it was held that a tribunal is not required to go through the matters listed in s.33(3) of the Limitation Act, an English statute in the context of a personal injury claim, provided that no significant factor is omitted. There was also reference to Dale v British Coal Corporation [1992] 1 WLR 964, a personal injury claim, where it was held to be to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. The EAT concluded “What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] IRLR 69) involves a multifactoral approach. No single factor is determinative.”[216]In Edomobi v La Retraite RC Girls School UKEAT/0180/16 a different division of the EAT (presided over by a different Judge) in effect preferred that approach, with the Judge adding that she did not “understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.”[217]In(1) Wells Cathedral School Ltd(2) Mr M Stringer v (1) Mr M Souter (2) Ms K Leishman: EA-2020-000801 the EAT did not directly address those authorities but stated that, in relation to the issue of delay, “it is not always essential that the tribunal be satisfied that there is a particular reason that it would regard as a good reason”. A more recent authority from the EAT – Concentrix CVG Intelligent Contact Ltd v Obi [2022] EAT 149, supported that same conclusion, although that authority is another at the same level as those in the Habinteg line, such that it does not resolve the matter finally.[218]In Accurist Watches Ltd v Wadher UKEAT/0102/09 the EAT stated that, whilst it is good practice, in any case where findings of fact need to be made for the purpose of a discretionary decision, for the parties to adduce evidence in the form of a witness statement, with the possibility of crossexamination where appropriate, it was not an absolute requirement of the rules that evidence should be adduced in this form. A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[219]There is a further matter to consider, which is the effect of early conciliation on assessing when a claim was commenced. Before proceedings can be issued in an Employment Tribunal, prospective claimants must first contact ACAS and provide it with certain basic information to enable ACAS to explore the possibility of resolving the dispute by conciliation (Employment Tribunals Act 1996 section 18A(1)). Provisions as to the effect Early Conciliation has on timebar are found in Schedule 2 to the Enterprise and Regulatory Reform Act 2013, which creates section 140B of the 2010 Act. The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 give further detail as to early conciliation. The statutory provision provide in basic summary that within the period of three months from the act complained of, or the end of the period referred to in section 123 if relevant, EC must start, doing so then extends the period of time bar during EC itself, and time is then extended by a further month from the date of the certificate issued at the conclusion of conciliation within which the presentation of the Claim Form to the Tribunal must take place. If EC is not timeously commenced that extension of time is inapplicable, but there remains the possibility of a just and equitable extension where it has taken place albeit late. (i) Remedy[220]In the event of a finding of a breach of the 2010 Act compensation is considered under section 124, which refers in turn to section 119. That section includes provision for injured feelings under sub-section (4). Three bands were set out for injury to feelings in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 in which the Court of Appeal gave guidance on the level of award that may be made. The three bands were referred to in that authority as being lower, middle and upper, with the following explanation: “i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.”[221]In Da'Bell v NSPCC [2010] IRLR 19, the EAT held that the levels of award for injury to feelings needed to be increased to reflect inflation. The top of the lower band would go up to £6,000; of the middle to £18,000; and of the upper band to £30,000.[222]In De Souza v Vinci Construction (UK) Ltd [2017] IRLR 844, the Court of Appeal suggested that it might be helpful for guidance to be provided by the President of Employment Tribunals (England and Wales) and/or the President of the Employment Appeal Tribunal as to how any inflationary uplift should be calculated in future cases. The Presidents of the Employment Tribunals in England and Wales and in Scotland thereafter issued joint Presidential Guidance updating the Vento bands for awards for injury to feelings, which is annually updated. The Seventh Addendum to that Guidance increased those bands for claims presented on or after 6 April 2024 to a lower band of £1,200 to £11,700, £11,700 to £35,200 and £35,200 to £58,900 respectively.[223]The EAT gave guidance on the level of an award for injury to feelings particularly for less serious cases in Graham v Eddie Stobart Ltd and another [2025] EAT 14.[224]Consideration may also be given to an award in respect of financial losses sustained as a result of the discrimination. This is addressed in Abbey National plc and another v Chagger [2010] ICR 397. The question is “what would have occurred if there had been no discriminatory dismissal .……. If there were a chance that dismissal would have occurred in any event, even if there had been no discrimination, then in the normal way that must be factored into the calculation of loss.”[225]It was stated in Chief Constable of Northumbria Police v Erichsen 2015 WL 5202327 that what was required was an assessment of realistic changes, not every imaginable possibility however remote and doing so “taking into account any material and plausible evidence it has from any source”.[226]There is a general duty of mitigation where losses are being sought, being to take reasonable steps to keep losses sustained by the dismissal to a reasonable minimum which failing the award may be reduced or negated. That is a question of fact and degree. It is for the respondent to discharge the burden of proof – Ministry of Defence v Hunt and others [1996] ICR 554.[227]In Chapman v Simon [1994] IRLR 124, the Court of Appeal emphasised the importance for tribunals to consider only the act of which complaint is made. Where loss has been caused by a combination of factors, including some which are not discriminatory, the award may be discounted by such percentage as reflects the apportionment of that responsibility - Olayemi v Athena Medical Centre [2016] ICR 1074. In BAE Systems (Operations) Ltd v Konczak [2017] IRLR 893: the Court of Appeal held that “the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong”.[228]Compensation is awarded on the basis that “as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct” of the employer Ministry of Defence v Cannock [1994] IRLR 509. The extent of the loss caused by the breach of duty was a factor considered in O’Donoghue v Redcar and Cleveland Borough Council [2001 ]EWCA Civ 701.[229]Interest is to be applied to certain elements of the award under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Different provisions apply to different aspects of the award. The awards for interest can include for injury to feelings, and for past financial losses but not future losses. Observations on the
Evidence
[230]The Tribunal’s assessment of each of the witnesses who gave evidence is as follows:[231]The claimant was we considered seeking to give honest evidence. She genuinely believed the evidence she gave was true. There were however a number of areas of her evidence where we did not consider it reliable.[232]There were a number of occasions where the claimant’s oral evidence was not consistent with the written record, including her own messages. One example is in relation to the incidents in August 2023 involving a colleague in two conversations on 16 and 18 August 2023. The claimant alleged in cross examination that the incidents or at least the latter of them had been staged to upset her, that having been staged by Inspector Lumsden and Sergeant Fraser. When the claimant wrote to Inspector Lumsden on 23 August 2023 she did not make any suggestion of that nature, although in other correspondence she had at the least indicated disagreement with how he had handled other matters. The allegation was not, from the evidence, raised with HR at any time.[233]Nor was this allegation consistent with the terms of the email from the claimant on 24 August 2024 to Sergeants Fraser and Gardiner copied to her union representative and Inspector Lumsden, which included what amounts to praise for Sergeants Fraser and Gardiner as “very kind, and [both] handled the issue with sensitivity and neutrality, as did Dave Ferguson.” As Sergeant Fraser said in his own evidence there was no need for her to send that email, and her evidence that it was, in summary, not what she really thought but to try and effect a change of behaviour was in our view not reliable at the very least. Nor was any of this issue pled. It was, we concluded, a fanciful allegation without any basis in fact.[234]The claimant had alleged that the respondent had not investigated this matter, or not taken it seriously. But quite obviously there had been an investigation, with Inspector Lumsden directing that it be carried out without delay, and Sergeant Fraser staying well past the end of his shift in order to do so, with review of CCTV footage, and an outcome message from Inspector Lumsden. That was all in the context of the claimant not raising it as a formal complaint. The claimant’s allegation was in our view simply unfounded.[235]The claimant alleged that Sergeant Fraser had somehow acted inappropriately in relation to his comments about how she might react in future incidents were they to occur, but we were entirely satisfied that he did so after she had said that she had “shut down” and did so out of a genuine concern for her, which was at the very least reasonable for him to do in the circumstances. The allegation that what had happened was an act of victimisation by him was we considered again without any foundation. That is in the context where the claimant was asked in cross examination whether she suggested that Mr Martin and Ms Fyfe were members of the KKK, and she replied that several members of Police Scotland were members of KKK and were targeting her. The claimant maintained that position when it was suggested to be ludicrous. Who those persons were thought to be was not stated, but there was not any evidence to support such an allegation, which again had not been pled.[236]Another example of what we consider to be inconsistency in the claimant’s evidence was her rejection of the suggestion in cross examination that she had requested a move from Marischal College to Stonehaven. It was we consider clear from documentation at the time that she had done so, and that was confirmed by the terms of her own email of 15 September 2023 when she was positive about the move and asked for a smooth, swift transition. The claimant had also asked for a full-time job, which the Stonehaven role was. It increased her hours from a little under 27 per week to 35 per week. The increase was to her financial benefit. It appears to the Tribunal entirely unlikely that such a change was not with the claimant’s active encouragement. Her evidence on the move to Stonehaven we did not regard as reliable at the least.[237]The claimant was asked in cross examination about an email from Sergeant McOuat on 21 December 2023 in reply to her message of 13 December 2023. The claimant said that she did not remember seeing it. That was so although it replied to her own proposal of that earlier date, and included a counter-proposal. The claimant was then asked if she had chased up a reply if she had not received one as she claimed, and she said that she could not remember. It appeared to the Tribunal very unlikely indeed that the claimant had not received that message, and that at the best for the claimant her evidence in this regard was not reliable.[238]The claimant had alleged that her line manager was not open to discussion in an email to Occupational Health of 22 January 2024, but that was directly contradicted by written evidence. When asked if what she had said was grossly unfair she accepted that perhaps it was.[239]The claimant stated in her evidence in chief that she had raised a grievance with the respondent. In cross examination she was asked to specify when she had done so. She said that it was on 9 February 2024. There was however no mention of that in the Further Particulars her solicitors had provided, and there was no document in the Bundle in relation to it. It was also not consistent with documents which were in the Bundle, for example the claimant’s message sent to HR on 29 February 2024 was that “I wish to put forward a formal grievance”, which was prospective, and not to the effect that she had about already raised a grievance. The message in reply from Ms Edokpayi on 6 March 2024 sent the claimant a link to the grievance policy, and further details on how to submit a grievance. Ms Edokpayi sent a further message on 7 March 2024 stating that it was only when there was a written grievance that a meeting would be held. Sergeant McOuat sent the claimant a link, and she did not follow that. She had union representation at the time.[240]We concluded that the claimant had indicated an intention to raise a grievance, but had not actually done so in a manner that the respondent recognised. That was partly as she had raised a large number of complaints both with managers and HR at an informal level. It was in our view reasonable for the respondent to direct the claimant to the procedure and in effect say please follow that to raise a grievance. For reasons not explained in evidence the claimant did not do that.[241]The claimant was asked about putting her application for varied shifts onto the respondent’s SCoPE system, which was required under their Standard Operating Procedure. The claimant was asked about an absence review meeting on 27 February 2024 attended by her union representative when on three occasions he had in effect advised her to do so. The claimant in our view did not have any good reason not to have done so. What she said in emails was to the effect that she would not as it was a waste of time if her proposal was not agreed. It is true that it was not, but Sergeant McOuat had made another proposal that did meet the respondent’s requirements, and on the face of it met those of the claimant as it did not involve four consecutive days at work but either three or two.[242]That the claimant did not engage in discussion about that, or take the simple step Sergeant McOuat explained in person and by email to her, we considered showed intransigence on her part. The claimant refusing to engage with the process involved her being unreasonable not least when her union representative also sought to persuade her of the benefits of doing so during the 27 February 2024 meeting.[243]She alleged that six days of consecutive shifts caused her disability to become worse, but her email of 1 February 2024 had proposed a working pattern of six consecutive days involving a total of 54 hours in that period, which was entirely inconsistent with the adjustments she contended were reasonable ones of the respondent to have made. What it appeared to us she was seeking to do was have her proposed shift pattern agreed even though it was not a practicable one for the respondent as we shall come to, and the GP fit note on which it was based did not suggest that it was the only possible solution, rather was something to consider. It was.[244]The claimant made some relatively serious allegations for which we did not consider that she had any basis in evidence. One was to the effect that some of those at Police Scotland may have been members of the Ku Klux Klan and were a threat to her safety, which she raised in cross examination but had not referred to in examination in chief, nor had that been pled. When asked to explain the threat to safety she said that she was right to assume that certain members of Police Scotland were racist. An email she had sent had also indicated that she could not rule out that Ms Fyfe and Mr Martin were members of the KKK. Strictly speaking in theory that is correct, but as a matter of what is reasonable to infer from circumstances was not.[245]In one email she stated that having flexible shifts was “white privilege”, for which there was no evidence in support. It may have been the view she held, but it was contradicted by the lengthy and careful attempts Sergeant McOuat in particular made to try and accommodate her, whilst also meeting the requirements of the public office, and the several messages from him and Inspectors Lumsden and di Meola stating the intention to support her.[246]One of the matters raised was a comment by a cleaner named Lilian that she made a “mean biryani”, which in an email to Superintendent McEwan that she said that she was “flattered” by. That was entirely different to the pled case and her evidence about it. She explained these inconsistencies as her being her usual polite self, but it appeared to us that they were clear inconsistencies.[247]She had also suggested that as there were issues in Stonehaven regarding a work chair for her, which had been ordered without checking what was required with her which is hardly best practice, that that was being done deliberately. Allegations of deliberate actions against her were made frequently against her colleagues, for which we did not find evidence. One of them led to Mr Crawford commencing a grievance. That series of allegations by the claimant we concluded was not warranted, and indicated that there was beyond the exaggeration of what occurred a tendency to find motive against those with whom she worked.[248]On many occasions when asked about the detail of matters she stated that she could not remember. On more than a few occasions she did not directly answer the question asked. These issues must be placed in context, in that some of the events were far from recent, and giving evidence over a lengthy period of time is not easy. The claimant is a disabled person, and has suffered from anxiety and other issues. She suffers pain from her condition, and pain can affect how someone behaves either at work or otherwise. Taking all those matters into account however we did consider that the number of times where the claimant could not recall detail that ordinarily one would expect to be recalled affected our view of how reliable her evidence was.[249]In light of these matters the Tribunal concluded, regretfully, that the evidence of the claimant was not reliable where it was disputed.[250]ACC Sutherland we considered a credible and reliable witness. He answered questions candidly and clearly, including points put to him in cross examination as to matters of which he had not been informed.[251]Sergeant Fraser was we considered a credible and reliable witness. He was offended by the allegations against him personally, which he robustly refuted. Some of the allegations he was bemused by, but denied convincingly. We considered that he was correct when he said that he had been seeking to assist the claimant. That was evidenced most obviously when an issue arose from an incident on 18 August 2023 which the claimant had raised, and when she returned to work thereafter at 23.00 on 23 August 2023 he stayed after his own shift ended to speak to her with his colleague until 01.30 on 24 August 2023. When the claimant’s claims that there had been harassment related to race, or victimisation, he rejected the allegations stating that they were laughable if they were not so serious. It appeared to us that the manner in which he responded on those points was convincing. He commented on a phrase he had used in relation to the claimant as to her true character and vindictiveness in the context of her alleging that Ms Fyfe was a member of the KKK. Whilst the choice of words was not the most apt for a line manager, not least in the absence of formal disciplinary action, we considered that it was his reaction to what he considered to be an unfounded and malicious allegation against Ms Fyfe that the claimant had made.[252]It was also raised in cross examination that he was biased against the claimant, which he similarly rejected and on which the Tribunal accepted his evidence. He rejected an allegation that he had said to the claimant close to her face that he was sick of her lies. He said that that had not happened. He said that he explained that unlike with a police officer he could give an order to for civilian staff he gave guidance, or words to that effect. We consider that he was likely to have become frustrated at how the claimant was addressing matters both with colleagues and with him, and had spoken in a direct and authoritative manner to the claimant, but not in the way she alleged. He denied that other PESAs had told him to get rid of the claimant. We consider that if he had been seeking to do so he would not have acted as he did, for example when investigating the incident on 18 August 2023.[253]Whilst he could not recall all the detail of all of the events we considered that that was because of the passage of time, and a failure of memory, and was entirely credible. We were in general terms satisfied that his evidence should be accepted, and where there was a dispute with the claimant we preferred his evidence.[254]Inspector Lumsden was we considered a credible and reliable witness. We did not consider that the suggestion that he had not dealt with the issues raised by the claimant appropriately was made out. That he had started work on them when off shift was one factor, but another is that the claimant herself said to him that she did not wish to raise a complaint, but he wished it investigated nonetheless. It was investigated both in part by him personally, and in part by others, but he took a decision on the basis of his understanding of matters only after having approval to do so from his line manager, and then informing the claimant what he had done without that then being responded to by her. We accepted his evidence that he had not informed the claimant on 29 August 2023 that he could not do anything, as by then the investigation was not completed and he had not received the approval from his manager. He denied the alleged remark, and we consider it more likely that he had not made it.[255]Sergeant McOuat was we considered a credible and reliable witness. He gave evidence of not being aware of the background before the claimant started at Stonehaven, of his welcoming her, and of his having a meeting with her on 22 November 2023 at which time she did not raise any issues with him. He was supportive of her. Both his evidence and that of Inspector di Meola was of the claimant being required to learn core skills of the PESA first, before additional responsibilities were taken on, which accorded with the documentation at the time, and with common sense. It was we considered inconsistent for the claimant to complain about not undertaking additional responsibilities when starting a new role, and very quickly also seeking flexible working arrangements. She emailed more senior managers directly in November 2023 on issues she had not raised with Sergeant McOuat who was her line manager. We accepted his evidence as to what he had been aware of, what his understanding was at the time, and how he handled matters. It appeared to us that he simply followed advice given to him in relation to the requirement for an employee to put a proposed rota change on SCoPE, or to refer matters to Access to Work, even where that was an issue of reasonable adjustments in each case. Why that might have been, when it was not within the terms of a written policy, was not explained by any witness called for the respondent. It appeared to us not easy to reconcile with the terms of the Act as we address below, but that was no fault of Sergeant McOuat. In general we were impressed with how carefully and patiently he sought to deal with the claimant, trying genuinely to find a solution to issues she raised not only with shift patterns but more generally. Inspector di Meola[256]We consider that Inspector di Meola was a credible and generally a reliable witness. There are two aspects of qualification on reliability. The first is her evidence that when the claimant approached the Chief Inspector to have annual leave approved she was not “bothered”, as it was put to her, by her doing so. It seems to us that she was annoyed by that, not least as there was an implied criticism of her by the claimant in doing so. She emailed the Chief Inspector about it, and then spoke to the claimant to express her displeasure both as to the fact of making the approach to him, and that she had not raised any issue with her [Inspector di Meola] at a meeting two days earlier. She may have used strident language when making her displeasure known but it was firstly justified, as the claimant ought not to have bypassed the line of management in the circumstances, a matter raised several times with her, and conducted in a manner that was not unreasonable. Whilst the claimant did cry during the exchange, we concluded that that was not because of anything inappropriate by the Inspector, and so far as the claimant considered it to be harassment, that perception was not reasonable in all the circumstances. But to say that she was not bothered by it was inaccurate we concluded.[257]The second aspect is in relation to the problem from the height of the counter. The claimant required to stand at it for periods of a few minutes, up to between 15 – 20. That caused the claimant pain. That was known to the Inspector and others in the respondent. It seems to us that it was obvious from that, and that considering a change to it by lowering its height was going to take time, that a short-term solution was required, if it could be found, and if not, far more quick action was required than waiting about six months for an Access to Work assessment to be conducted. What was proposed was just for the claimant to go home. But that was not we considered the only reasonable adjustment, as it meant the claimant not doing the job, and risked a capability issue arising.[258]Whether a chair or stool of some kind could be found was not fully explored at the time, but the Inspector’s evidence was that there was not sufficient space behind the counter to place a chair or stool of sufficient height. She also thought that doing so was not safe. She had had some health and safety training and conducted health and safety audits for the office. On that matter we considered that her evidence should be accepted.[259]The issue of lowering the counter was somewhat more complicated, as noted below. She was in effect following advice from Ms McHardy and Ms Wallace. It was reasonable for her to do so. We address below the fact that neither of those potential witnesses gave evidence before us. That meant that they did not explain whether cost was the determining factor or not, whether the practicalities of lowering the counter were an issue or not, whether any disruption issue arose and if so what that was, and what facilities existed within the respondent to address what the claimant sought. The respondent’s position in essentials was that its policy was to involve Access to Work for such matters. As we shall address below, we did not consider that explanation sufficient against the terms of the Act.[260]Subject to those two aspects however we considered that the Inspector had addressed matters in relation to the claimant sympathetically and genuinely seeking to assist her as a new member of staff. We accepted her explanation as to allocation of duties, which was limited to most of those which were core to ensure that the claimant was adequately trained, before considering adding to them when that stage had been reached. It was not reached, but that was not because of any lack of action by Inspector di Meola, or by the other two PESAs. Witnesses not called[261]It is we consider also worthy of comment that some witnesses who might have been called were not. For the claimant the obvious person in that regard is Mr Ferguson. For the respondents, none of Ms Fyfe or the other Aberdeen PESAs, Mr Crawford or Ms Ross in Stonehaven, Sergeant Johnston, Chief Superintendent Stephen, Ms Edokpayi or Ms McHardy and Ms Wallace. From the overall evidence heard it is likely that each could have given relevant evidence, and no reason was put forward for their not being called. That was a matter that we took into consideration, although it is not determinative of the matter, as the Supreme Court considered in Royal Mail Group Ltd v Efobi [2021] IRLR 811.
Discussion
[262]The Tribunal decision is unanimous. We address each of the issues before us from the parties’ List of Issues, excluding the conceded matters, in turn: Jurisdiction 1. ACAS Early Conciliation was started on 16 April 2024. A certificate was issued on 28 May 2024. The first claim (8000843/2024) was submitted on 15 June 2024. The second claim (8000945/2024) and further and better particulars was submitted on 28 June 2024. 2. The Claims include complaints from before 17 January 2024. Was the Claimant subjected to a series of discriminatory incidents that amounted to ongoing discrimination?[263]The Tribunal does not consider that there was conduct extending over a period, which is the correct test under the statute, for the purposes of section 123 of the 2010 Act. It is instructive that a large number of different people were engaged in different locations, doing different things, in the context of different protected characteristics. For each of them the material the claimant pointed to was limited. A large number of those individual matters alleged by the claimant were not, we concluded, established on the evidence. We address the detail of them below.[264]The one that was established was the comment by Mr Martin who made a remark about the KKK. That was an individual matter unconnected to any others, and not part of any conduct extending over a period. For reasons we address further, the other issues founded on as to race were not conduct extending over a period. The same conclusion is reached in relation to the protected characteristic of sex. For that, there was very little material beyond the blonde moment comment, which we concluded was not harassment.[265]The protected characteristic of disability is again separate, and includes the issue of the height of the counter which was an entirely separate one, unconnected to the issues at Marischal College including the question of the WhatsApp group. We answer this question in the negative. The matters alleged on or before 16 January 2024 are not within jurisdiction unless it is just and equitable to allow them. 3. If no, is it just and equitable for the Tribunal to allow the complaints from before 17 January 2024?[266]In so far as there are complaints that can be pursued, the Tribunal does not consider that it is. There was very little evidence as to the reason for the delay in commencing the claim. The claimant has been assisted by her union representative from a reasonably early stage. Whilst at Marischal College for example her evidence was that they advised her to take photographs. They were in a position to advise her further. She could also have made her own enquiries about addressing issues both by formal grievance and by a timeous Claim, if she wished to.[267]The passage of time has to some extent we consider affected the respondent’s ability to investigate matters, as they were not raised formally at the time as a grievance, nor was the claim commenced timeously such that it could be investigated in that context. The claimant was aware that she could make a complaint in some respects as she stated specifically that she did not wish to do so – for example the August 2023 comments. On several occasions she eschewed a formal complaint, and raised what she described generally as a form of concern. That is we consider indicative both of an understanding that she could complain formally, and that the issue at the time she perceived to be not serious enough to do so. These are factors against allowing the claim late.[268]We consider that there is a not insubstantial degree of forensic prejudice to the respondent from the delay. That was raised in evidence, when for example Inspector di Meola could not recall what she had said in a meeting in November 2023, understandably given the passage of time and the delays referred to by us above. The delays have in our view affected the evidence led by the respondent before us. But the claimant also raised it in her evidence. She could not recall some of the details herself, saying so on a number of occasions in cross examination. These matters do in our view impact on the fairness of the process before us.[269]The prejudice to the claimant in not being able to pursue claims which are in any event not ones that generally succeed on the merits for the reasons addressed below is at the best for her low. An example is the KKK comment was made by another employee, which in our view could possibly have amounted to harassment, but for reasons given above did not in light of how the claimant treated it at the time, and in any event the prejudice to the claimant in not being able to pursue it is limited to what the award for that in isolation would have been, which is low given the evidence we heard as to loss on which we comment further below. Mr Lumsden also gave evidence, which we accepted, that he did not consider it as an issue of harassment. That is partly at least as the claimant did not make any formal grievance about it at the time, with her leaving it to him to address as he thought fit, in effect, and when he wrote to her to set out his decision about it she did not respond to him. In all the circumstances the Tribunal did not consider that it had jurisdiction for those matters prior to 16 January 2024 (that in our view being the correct date to take for these purposes, although that makes no practical difference).[270]Taking account of all the circumstances we concluded that the prejudice to the respondent materially outweighed the prejudice to the claimant, and that it was not just and equitable to allow the claims that were late to be heard. As they are thus outwith the jurisdiction of the Tribunal they are dismissed on that basis. In any event, for the large majority even if there had been jurisdiction the claims failed on the merits. Failure to Make Reasonable Adjustments Front Desk and Chair 4. Did the Respondent discriminate against the Claimant as per Sections 20 and 21 of the Equality Act 2010 on the following basis: a. Was the front counter desk at Stonehaven a physical feature? and/or[271]The front counter desk was such a feature. b. Would a suitable chair at the front counter be an auxiliary aid? And[272]Yes, in principle. c. Did the physical feature and/or lack of auxiliary aid put the Claimant at a substantial disadvantage?[273]In our view it did. The claimant suffers from a foot condition such that prolonged periods of standing cause her discomfort and pain. She was required to spend material periods of time standing at that counter, for lengths of time which varied from the minute or two to up to about twenty minutes, which did cause her pain. d. Did the Respondent fail to take reasonable steps to mitigate for the disadvantage?[274]The respondent did not lower the counter or provide the said chair. Whether that was a reasonable step that ought to have been taken we address below. e. Were there reasonable adjustments that the Respondent could have made? The Claimant says the Respondent could have made reasonable adjustments including: i. lowering the front counter, and/or ii. providing a seat so that the Claimant could work at the front counter while sat down, or iii. allocating the Claimant alternative duties away from the front counter.[275]In relation to the proposed adjustments of lowering the counter and/or providing a chair, it appears to us that the former was a reasonable step. It would have allowed the claimant to sit at a chair of what may be described as normal height when speaking to those attending. From the evidence we heard it would also have been necessary to move the counter forward as the Tribunal accepted evidence that there was no room for a chair where originally positioned. But there was no evidence from the respondent that it would not have been practicable to have moved the counter sufficiently forward to do so. Such a height of counter, similar to the level of a standard office desk was, from the evidence, what was provided at Marischal College. It was, we consider, not reasonable to await involvement of Access to Work, which was known to be liable to take six months. It was the kind of simpler change that an organisation like the respondent ought to have investigated in circumstances where the claimant could not stand for prolonged periods, as doing so caused her pain. She could not know when a member of the public attended at the counter how long the discussion would take. An employee suffering pain in such circumstances in our view does require a decision to be taken without undue delay. Six months was we consider such undue delay.[276]We considered the factors in the Code referred to above. It appeared to us that generally they all pointed towards carrying out the lowering of the counter. We deal with each one in turn: whether taking any particular steps would be effective in preventing the substantial disadvantage;[277]In our view if the counter had been adjusted so as to lower its height and move it to enable a chair to be used at it, it would. It would have allowed the claimant to have carried out meetings with those attending whilst seated. We took into account that there was no evidence from those who might have been called to address this point, being Ms McHardy and Ms Wallace in particular. There was no evidence that someone from Estates had visited to consider the options, or asked a tradesman to do so. If there was an issue over this matter, the detail of that was not before us. We concluded that, at the time when the claimant raised this issue, there was a realistic prospect that making the adjustment would have enabled the claimant to remain at work, or to return to if after being off later. It is a point to which we return below. the practicability of the step;[278]For the same reasons, in the absence of evidence on this from the respondent we consider that it was practicable to do so. It was not a small job but it was feasible in principle, and not entirely dissimilar to the example of widening a doorway given in the Code. the financial and other costs of making the adjustment and the extent of any disruption caused;[279]The respondent did not investigate this. We considered that that was a factor of some importance, given Latif. There is no specific duty under the Act to make an assessment, but the failure to do so cannot shield the employer against liability. The purpose of the Act in this regard is to facilitate disabled persons remaining at work. That purpose is capable of being entirely avoided if the employer does not take steps to ascertain the cost, or does so only through Access to Work which is liable to take about six months. An earlier assessment is all the more important if it is not possible to provide an alternative such as a chair. Given the lack of evidence we can only use our judgment, and judicial knowledge to the extent that that is permissible. It is clearly work that would cost far more than the £1,000 which would be borne by the respondent. It may have been around the level of £10,000 where if approved Access to Work contributed 80% of the cost of the balance over £1,000. It may have been higher or lower than that figure, but it seems to us to be at about the level that would be anticipated from what was before us. It may have taken something of the order of a week to effect, but there was no detailed evidence from the respondent as to disruption that could not be managed from the respondent. the extent of the employer’s financial or other resources;[280]The respondent is a very large organisation and public authority. It has material financial and other resources. If it did not have the necessary expertise to assess cost in house, which is what the hearsay evidence from Ms McHardy and Ms Wallace would indicate, it could have sought quotations from external suppliers to inform the likely level of cost of the works. That is an obvious step one would expect any employer of any size and resource, including those far smaller than this respondent, to do. The respondent did not do so. We consider that that failure is not something it is able to use as the shield referred to. the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work);[281]We do not know whether Access to Work would have provided assistance. The claimant did not co-operate, and we consider that her intransigence in not doing so was not to her credit, although we do not directly hold it against her in this regard given that the duty falls on the respondent to make the adjustment, and considering such assistance is but one factor. In our view given that the duty falls on the respondent, and there was known to be a lengthy delay of around six months, that potential additional support was not a factor that rendered the adjustment not reasonable. the type and size of the employer.[282]This is addressed above. The respondent is a very large organisation which is also a publicly funded body.[283]Taking account of all of these circumstances and factors, we concluded that it was reasonable to assess properly the cost of the works, it would have been straightforward to have obtained quotations to do so, and that is likely to have led to a level of cost that was, for an organisation such as the respondent, not unreasonable of itself. It appears to us that it ought to have been clear to the respondent from early January 2024 that such a step required to be assessed, and those steps taken. That would inevitably have taken time to obtain, then to assess the cost, consider the position, and take a decision. If approved, as we consider it ought to have been, it would then have required the works to be arranged with the contractor. The works would then have required to be completed. In the absence of any evidence on this we can only use our judicial knowledge to assess this, and consider that it is likely to have taken about three to four months to have the works effected, such that that would have been at or about the end of April 2024.[284]We did not consider it a reasonable adjustment to allocate the claimant to alternative duties. The primary function of the role of PESA was to engage with members of the public who called at the Public Office. It was reasonable to require the claimant to do that, not least as the rota was based on the premise of only one PESA to be present at any one time. In all the circumstances that was reasonable for the Stonehaven office. It was also reasonable to require that of the claimant, after a period had been allowed for training of her, and by February 2024 we consider that that period had passed. Not having the claimant, as the only full-time PESA, doing the primary function of the role would have unreasonably reduced the coverage by which that office could be open to the public.[285]The claimant in evidence suggested other solutions such as seeing the public in the public space, or a witness room, but we accepted Sergeant McOuat’s evidence that that created an unreasonable risk to her safety. That evidence accorded in our view with common sense, and he also spoke to experience of acts of the public on past occasions which we considered illustrated such risks. His evidence was supported by Inspector di Meola. Shift Pattern 5. Did the Respondent discriminate against the Claimant as per Sections 20 and 21 of the Equality Act 2010 on the following basis: a. Was the requirement to work a PESA shift pattern with up to six consecutive shifts (45 hours) a provision, criterion or practice (“PCP”)?[286]The respondent conceded that this PCP was applied. b. Did the PCP put the Claimant at a substantial disadvantage?[287]The claimant would we accept have been put at a substantial disadvantage from a shift pattern of six consecutive days, although it is noted that she proposed a six consecutive days pattern on 1 February 2024. But that was before the GP fit note suggested another pattern to consider, and evidence of her condition having deteriorated. c. Did the Respondent fail to take reasonable steps to mitigate for the disadvantage?[288]No. The respondent engaged with the claimant to seek to find a pattern that was suitable for her, but also met their reasonable needs. The pattern proposed by the claimant did not do so, for reasons explained in an email from Inspector di Meola, messages from Sergeant McOuat, and at meetings he held with the claimant. We also accepted the evidence both of them gave to the Tribunal.[289]The claimant’s initial proposal involved three shifts ending at 3am, 3 hours beyond the closing time of the office. Their evidence was that there was no demand for such a service beyond midnight, and Inspector di Meola said that she not infrequently allowed the PESAs to leave well before the midnight closing time when the office was very quiet.[290]The respondent through Sergeant McOuat then engaged with the claimant to seek to resolve matters not only by the proposal he made of an alternative pattern, but also the encouragement that he, Ms Edokpayi and even her own union representative Mr Ferguson made to her to apply for flexible working in SCoPE at the meeting on 27 February 2024. That would have allowed the matter to be formalised, checked, and compared with the working patterns of others. That would also have allowed the more formal consideration of the impact on the needs of the business and the service it gave the public. The claimant was inflexible in not doing so – and her reasons for that appeared to us to be wholly insufficient ones, not least as she had referred to making such an application in December 2023, as we addressed above. If she was able to come up with her own working pattern proposal, as she did, in our view she was fully able to make the application on SCoPE as was explained to her by Sergeant McOuat. He also sat with her at the desk she worked at to show her how to do so, and sent an email setting out the process. It was not an unduly difficult thing to do.[291]On 21 December 2023 and again on 29 February 2024 he set out his proposal by email. That proposal was two early shifts, one day of rest, three late shifts and three days of rest. The shifts were of ten hours’ duration, which was the same duration as some of the shifts that the claimant had herself proposed. The GP fit note did not address the number of hours in the shift. We did not consider therefore that a ten hour shift was of itself any issue. Even if it was it was clear that the respondent was prepared to discuss it further, as we shall come to.[292]The proposal made by Sergeant McOuat was not six days consecutively, nor indeed four days consecutively, which is what the GP note had proposed, but not more than three days consecutively. That pattern did fit with the rotas other staff worked, which repeated on 9 and 18 day cycles. Unlike the claimant’s proposal it worked in practice. Inspector di Meola explained that she did not consider that the other staff would agree to change their arrangements, for reasons we accepted.[293]It was possible for the claimant to change her shifts to that proposed by Sergeant McOuat, or engage in further discussion with him, but she declined to do so. She in effect sought to insist on a working shift pattern that could not be accommodated as it would have materially reduced the opening hours of the Public Office. It would have meant two PESAs on duty at the same time, which was inefficient, but also in the context of the claimant having a very poor working relationship with them. What the claimant proposed was not practicable. What the respondent proposed was, and we consider met the reasonable adjustments required by her disability, but the claimant rejected it, and refused to engage further in the process.[294]When cross examined about the reason for the rejection of the proposal the claimant gave an entirely different reason to that on 1 March 2024, which was that she had struggled to work 45 hours continuously, and the proposal was for 50 hours work continuously. That was not however what the proposal involved. The maximum number of consecutive hours of work for working days was 30, being three days of ten hour shifts (of which one hour was a break). The equivalent from the claimant’s proposal was 40. The claimant’s reasons in her evidence were simply wrong. She rejected the suggestion that she was being deliberately uncooperative but we consider that that was what she was doing, as demonstrated by the words in her email refusing to put the flexible working application onto SCoPE. It is clear to us that Sergeant McOuat was wholly prepared to continue discussions, and he stated that in messages.[295]Had the respondent refused to discuss the shifts at all, and only said something to the effect of apply through SCoPE, we would have been concerned that there was a breach of the sections. An employer cannot in our view put up a barrier to its own compliance which prevents it being achieved. It is a matter addressed in a different context in Latif. But here there were emails and meetings at which matters were discussed, and the respondent tried to resolve matters by making what were reasonable proposals that met the reasonable requirements of both parties. The reason an adjustment was not made was simply because the claimant rejected the proposals made, and did not engage with further processes.[296]As a cross check we considered the proposal from the GP fit note, applying on top of them the claimant’s proposed rota from the fit note, and raised them with Mr James in submission. Mr Crawford worked a standard pattern, but as his hours were less than full time the shifts he worked must have been less than the standard ones. But his days of work followed that pattern. Ms Ross had a pattern of three late shifts, three days of rest, two early shifts and ten days of rest, with her first late shift starting when Mr Crawford started his first early shift. The two patterns therefore repeated over 18 days.[297]We could not fit the claimant’s proposed pattern of two early shifts, two late shifts and two days of rest into that existing sequence for those two staff without leading to shifts where two PESAs worked together, which in turn reduced the opening hours possible for the office. It increased the time without any cover. We considered that it was not a reasonable adjustment in all the circumstances to have two PESAs work the same or a similar shift on the same day, thus reducing the hours of opening. There was no need for that, and the claimant’s allegations as to training being refused we rejected.[298]Against that background, we considered that we could accept the evidence of the respondent that the claimant’s last proposal, her fifth, was not a reasonable adjustment, firstly as it was not a practical solution given those circumstances, secondly that the respondent proposed an alternative pattern which had less than four consecutive days of work but still an average of 35 hours per week (taking account of break time), thirdly its willingness to discuss matters further and fourthly the claimant’s unreasonable refusal to make an application by SCoPE that allowed formal consideration and checks of the financial impact of the proposals being made.[299]In all the circumstances we did not consider that the respondent had failed to take the reasonable steps required. It did not seek to impose a different working pattern on the claimant, but made a proposal that accorded with their reasonable business requirements and offered the claimant the levels of rest that she had indicated she sought. Her reasons for refusing it are not related to disability but her perception as to a lack of training. Her evidence in this area we did not consider reliable, as exemplified by her failing to recollect the email of 29 February 2024 despite it clearly being answered by her on the following day. d. Were there reasonable adjustments that the Respondent could have made? The Claimant says the Respondent could have made reasonable adjustments including i. altering her shift pattern so that she had a maximum of four consecutive shifts, as recommended by OH on 07 December 2023 and her GP on 26 February 2024.[300]The proposals from Sergeant McOuat complied as far as was practicable with this proposed adjustment, in that there was a pattern of two early shifts, followed by a day of rest, then three late shifts followed by three days of rest. There was to be no more than three consecutive shifts. It was a slight variation of the pattern proposed by the GP, but had the benefit of only three consecutive working days not four. For reasons addressed more fully for the preceding issue we answer this question in the negative. Sick Pay 6. Did the Respondent discriminate against the Claimant as per Sections 20 and 21 of the Equality Act 2010 on the following basis: a. Was the Respondent’s decision to pay limited sick pay a PCP?[301]Whilst it was not strictly a decision to pay limited sick pay, rather a term from the Statement of Main Terms then a decision not to grant an extension to sick pay, we are prepared to hold that this does amount to a PCP under the Act. b. Did the PCP put the Claimant at a substantial disadvantage?[302]It did. It had material financial consequences for the claimant. c. Did the Respondent fail to take reasonable steps to mitigate for the disadvantage?[303]No, for reasons more fully set out below. d. Were there reasonable adjustments that the Respondent could have made? The Claimant says the Respondent could have made reasonable adjustments including: i. extending the Claimant’s sick pay and/or ii. moving swiftly to make the recommended adjustments to her shifts and the counter.[304]We consider that it was not a reasonable adjustment to extend sick pay. Firstly, the claimant steadfastly refused to follow the advice to apply for flexible working in SCoPE, and to apply for Access to Work. Her doing so was, in our view and in the circumstances, unreasonable, and requiring that as a first step to considering matters was reasonable for the respondent to do. Secondly Sergeant McOuat had engaged with her proposals about shift patterns, made his own, and offered to discuss them. The claimant did not sufficiently engage with that process. Thirdly her own later proposals were entirely inconsistent with the arguments she now makes. Fourthly it was obvious that the lowering of the counter was a not inconsiderable task and would take time. It would have resolved one issue of her pain when standing at the counter seeing those attending. But that was not the only issue. There were a very large number of other issues, including her very poor relationships with colleagues, her lack of cooperation, her seeking more time for training despite the training and assistance given, and the very substantial number of concerns of wide variety of issue she raised. Finally we considered whether it was a reasonable adjustment on an objective basis. Having regard to all of the circumstances, we consider that it was not. There was we concluded no sufficient evidence that this was a material matter that contributed other than to a less than significant extent to the claimant going off work sick on 11 April 2024. We consider that it was because of her intransigent view that the shift pattern had to be as she proposed, and her various disagreements with her colleagues and managers. We did not consider that the issue of lowering the counter was a substantial factor in her going off, as that term is to be understood in the Act. There was no evidence from her that it was, in our view, but in any event to the extent that there was we did not accept it. Harassment related to Race 7. The Claimant is from an Indian/Asian background. 8. Did the Respondent discriminate against the Claimant as per Section 26 of the Equality Act 2010 on the following basis: a. Was the Claimant subjected to the following unwanted conduct: i. The Klu Klux Klan comments on 18 August 2023,[305]It does appear that Mr Martin said something about the Ku Klux Klan (“KKK”) on 18 August 2023. Precisely what he did say is not clear, as there is no statement from him before us and he did not give evidence, but it seems from the little evidence that there is to have been a comment about its origins. The KKK is a notoriously racist organisation. To have made such a comment in the presence of a person of colour was in our view potentially at the least unwanted conduct under the Act. On this we accept the claimant’s evidence, however limited that was, which had some support from the hearsay evidence as to what Ms Fyfe had said, and of there being an apology tendered by Mr Martin. We also did not accept the respondent’s argument that it was not unwanted as there had been a discussion two days earlier. That was a different discussion, in a different context, and to compare the KKK to slavery and plantations ignores what the KKK as an organisation did, a matter we consider within judicial knowledge. That included murders of coloured people in the USA. ii. On 23 August 2023, in a meeting, Sgt Iain Fraser suggesting that the Claimant “couldn’t cope” with racist members of the public because she had reported the Klu Klux Klan comments,[306]We did not consider that Sergeant Fraser had made that comment. We accepted his evidence that the claimant had said that she had shut down after the comment, and he was concerned as to how she might react if more overtly racist comments were to be made in future. He did not say that she couldn’t cope with racist members of the public. The fact of this alleged comment was not proved. iii. The mean biryani comment on 20 September 2023, and[307]We considered that it had been established that a comment to the effect that the claimant made a mean biryani was made. iv. Being excluded from staff social media groups, to 28 June 2024?[308]We consider that it was established that the other PESAs at Aberdeen had a social media group, and that the claimant was not invited to join that when she worked in Aberdeen. There are however two qualifications. Firstly this was a group formed of the PESAs, and was not known to the respondent. It was contrary to the respondent’s position as to what should happen, exclusion from such a group being bullying under policy, and those involved appeared to have been dishonest about it when questioned by a number of Sergeants on Inspector Lumsden’s instruction. Secondly in any event the period of exclusion is not to 28 June 2024, but to the point of her leaving Aberdeen and starting at Stonehaven on 20 September 2023. There was no evidence of another group from which she had similarly been excluded, such as one for Stonehaven. In the event therefore that there were to be found to be discrimination on ground of race for the exclusion from the Marischal College group the impact of that on the claimant ceased when she moved role and location. She was in our view aware of the possibility of such a group by 20 September 2023, indeed before then, and on that date it arose from the mean biryani comment which she thought came from such a group. The detail about that is sufficient in our view to have led her to have sufficient knowledge to have presented a grievance or timeous claim, had she wished to. From 20 September 2023 she was in Stonehaven, and had no reason to be included in a group for Marischal College PESAs as from then on she was not one of those, and accordingly the Tribunal does not have jurisdiction for the reasons set out earlier. b. Was the conduct related to race?[309]This issue does not now arise. We considered however whether it was, lest we were wrong. There was little in the way of primary fact found established which supported an argument that the onus shifted. We concluded that it had not, but that even if it had what was particularly striking was that in all of the many messages the claimant’s race was not mentioned directly or indirectly. What was mentioned was her conduct, behaviour and comments. Whilst those comments were dreadful, and should not have been made, we concluded that they were not related to race at all. We were able to do so although none of those involved gave evidence before us, as the messages in effect spoke for themselves. We also noted that the person who was Thai by national origin was included within the group. We considered that that was also an indicator that the comments within it were not related to race. In our view the extensive number of messages and their detailed consideration points sufficiently to our being able to find that race was not the reason for exclusion from the group. c. Did the conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?[310]The circumstances include that the claimant did not raise any formal grievance at the time in relation to these matters. In our view that is a material factor. If the KKK comment had been perceived as having such an effect a grievance would have been expected. That it was treated informally, with the claimant in effect leaving it to Inspector Lumsden to address, indicated to us that at the time the claimant did not perceive it to be harassment within the Act, but as something that was inappropriate (as indeed it was). The comment about the biryani appears to us to have been a compliment not some form of harassing remark, received as such at the time, but with the concern being instead the suspicion as to a social media group from which the claimant had been excluded, and if there was any perception of harassment that was not reasonable. The third issue was the social media group itself, exclusion from which was perceived as harassment in our view, but the claimant did not raise that as a grievance at the time when that could have made a difference, which is when she was working at Marischal College. She ceased to do so on 20 September 2023, and did not raise it as a grievance at that stage. From that point on the issue was at best historic. In all those circumstances, although it was potentially harassment within the terms of the section it fell outwith our jurisdiction as addressed above, and for the reason set out above was not related to race. Harassment related to Sex 9. Did the Respondent discriminate against the Claimant as per Section 26 (1) of the Equality Act 2010 on the following basis: a. Was the Claimant subjected to the following unwanted conduct: i. The blonde moment comment on 06 November 2023?[311]Yes b. Was the conduct related to sex?[312]Whilst there was very little evidence on this aspect the Tribunal considers that the comment is normally referring to a blonde female, and can therefore be regarded as related to a protected characteristic, sex. c. Did the conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?[313]It in our view clearly did not have that purpose, but was obviously an infelicitous remark making light of an error the claimant had made. On the issue of effect we consider that firstly it did not violate dignity or create the kind of environment within the statutory definition. The context is relevant. Whilst there was no direct evidence from Mr Crawford it is referred to in his email of grievance as background, and was spoken to in the claimant’s evidence. As the EAT set out, not all infelicitous comments fall within the statutory definition, and in all the circumstances we did not consider it reasonable for the claimant to regard it as creating an offensive environment within the terms of the section so as to amount in law to harassment, even if at the time that was her perception, which we did not consider it was. Direct Race Discrimination 10. Did the Respondent discriminate against the Claimant as per Section 13 of the Equality Act 2010 on the following basis: a. Was the Claimant subjected to the following treatment: i. Not having her complaints taken seriously and/or dealt with appropriately, including her complaints on 23 August 2023, 21 November 2023, 19 January 2024 and her grievances from 29 February 2024 and 01 March 2024? And[314]The Tribunal did not regard it as established that the claimant’s complaints were not taken seriously. That from August 2023 was investigated and an outcome given to her afterwards. We addressed why we rejected her evidence about that above. The message she sent on 21 November 2023 was in the context of her wishing the meeting to be positive, and the meeting took place on that basis, discussing matters with her. It was not a complaint. On 19 January 2024 Sergeant McOuat was sent a message, which he responded to that day. We did not accept that her issues had not been taken seriously even if they were a complaint. Whilst the claimant sent messages on 29 February 2024 and 1 March 2024 they were not grievances raised formally. The claimant was told how to do so both by Ms Edokpayi and Sergeant McOuat, but she did not follow that advice. That advice was reasonable, and came against the background of the claimant being told on several occasions of the proper process to raise an issue, which was to do so firstly with the person concerned, secondly with the first line manager, and thirdly only thereafter with more senior managers, if she did not raise a formal grievance. What the claimant did quite frequently was to bypass that line of management and raise issues directly with more senior managers. That was not appropriate in our view. It was not how any organisation such as Police Scotland works. It has what can be described as a chain of command, with processes in place to be followed where issues arise. The claimant did not follow those processes. It was raised with her on several occasions. Her “complaints” were somewhat ambiguous. They were neither grievances in terms, nor wholly informal comments that could simply be noted. There were a great deal of them. She sent an unusually large number of messages to her line managers, and others, but at no stage did she raise a grievance.[315]Doing so, formally, is not difficult, particularly for someone being advised by her union. For reasons that the claimant did not explain, she did not do so. When she raised the issue with HR and Sergeant McOuat and said that each had said that she should go to the other, that does not accurately set out what happened. Sergeant McOuat stated in terms to the claimant that she should raise a grievance on the HR portal. He did so in an email of 1 March 2024 and accepted that in one respect he had missed a complaint about Stonehaven such that he had been wrong to refer only to Marischal College. But that error was immaterial. The comment was simple. It was to make a grievance formally. The claimant did not. Ms Edokpayi also and separately gave advice to the claimant by email as to how to raise her grievance. It included a link to do so. In all cases however the claimant did not act on those advices. She did not raise a grievance.[316]That is contrasted with Mr Crawford. He did formally raise a grievance. The message he sent his sergeant stated that, set out the grievance. We inferred from that that Mr Crawford had followed the procedure. That is a material distinction with the claimant, such that the treatment of his case is not a proper comparator under the Act. The differences between the two cases are of form, not substance. His grievance had a reply from Sergeant Griffin about it being a minor matter, but passing it to his superior. There was no evidence of there being any material action on it. There was no evidence of the claimant attending an investigation meeting for example, despite the long delay from the grievance on 4 February 2024 and her becoming absent on 11 April 2024. Treating it as an evidential comparator issue, we concluded that it was treated in all material respects no differently to how the claimant had been treated.[317]We did not consider that the claimant had established that her complaints were not taken seriously given all the circumstances. ii. Being excluded from staff social media groups, to 28 June 2024?[318]It is not within the jurisdiction of the Tribunal for the reasons given above. b. Was this less favourable treatment because of race?[319]As addressed above, no. c. For 10.a.i, the Claimant relies on an actual comparator, Gavin Crawford, who raised a grievance about a trivial matter in bad faith but was treated more seriously than the Claimant, or[320]Mr Crawford is not in our view a true comparator as there are material differences between his case and that of the claimant. It is also not accurate to describe the grievance by Mr Crawford as a trivial one, which is how the claimant argued it was, and there is no evidence of it being raised in bad faith. The claimant was asked about what he had complained about, and her response was to state that she did not recall, or words to that effect. His grievance on the face of it has a detailed commentary on what the claimant is alleged to have said, and if it is true it is not trivial. It was about folders that the claimant asked for, and she accused him of knowing where they were but pretending otherwise. That was an allegation of dishonesty in effect. She also swore at him. Had the issue only been the use of language that would not have been sufficient, not least given the calendar that he had about which the claimant spoke in evidence. But there was more to the grievance than that, in our view. Given the other concerns over at least the reliability of the claimant’s evidence we do not accept her argument that it was raised in bad faith. It appeared to us from all of the evidence, which included that the claimant had fallen out with a large number of her colleagues, that Mr Crawford genuinely raised the issue as he perceived that the claimant’s conduct towards him had become unacceptable to him. d. For a.ii, the Claimant relies on her White, Scottish colleagues who are part of the social media groups, or[321]Not all in the group were white Scottish, although all bar one were. In any event for the reasons given above the Tribunal does not have jurisdiction. e. In the alternative, for (a)(i) and (a)(ii) the Claimant relies on a hypothetical comparator of a colleague from a White, Scottish
background.
[322]Should the issue relating to grievance be addressed on an hypothetical comparator the Tribunal considers that the same outcome would have applied. The claimant had not followed the advice on how to raise a grievance. A person not having the protected characteristic as the claimant would in our view have been treated in the same manner. Taking all of the evidence we heard on the basis that it is evidential in nature as to how an hypothetical comparator would have been treated in circumstances where there was no material difference between the facts of this case and such a comparator save that the comparator did not share the protected characteristic relied on, we concluded that there would have been no difference between such a comparator and how the claimant was treated. This claim therefore does not succeed. Victimisation 11. Did the Respondent discriminate against the Claimant as per Section 27 of the Equality Act 2010 on the following basis: a. Did the Claimant do the following acts: i. On 23 May 2023, emailing John Lumsden to requesting reasonable adjustments and stating “I represent the ethnic minority community” and “my colleagues have raised several concerns with their actions which are not in line with the equality, diversity and inclusion policy”?[323]The claimant did email Inspector Lumsden on 23 May 2023, the terms of which are referred to. ii. On 23 August 2023 emailing John Lumsden and Iain Fraser about the Klu Klux Klan “jokes”?[324]The claimant did email Inspector Lumsden and Sergeant Fraser on 23 August 2023, the terms of which are referred to. iii. On 03 November 2023 emailing Ashley Ross, John McOuat and Rhona Di Meola referring to “in view of the equality, diversity and inclusion policy” then asking for shared responsibilities?[325]The terms of the said email are referred to. It did not allege a contravention of the Act in our view. In this regard, and those which follow, the document or comment does not require to do so in terms, but from the caselaw set out above it requires to be reasonably apparent to the reader that that is what it amounts to. This did not meet that test. iv. On 21 November 2023, emailing John McOuat to complain about Gavin Crawford’s “blonde moment” comment?[326]The claimant sent a document commenting on the comment, but not complaining about it. Her covering email said that she was “putting her thoughts on paper”. We did not consider this to be an allegation of contravention of the Act. v. On 19 January 2024, emailing John McOuat to ask the Respondent to embrace diversity, for her colleagues’ attitudes to change and needing to be respected and treated as an equal?[327]In our view this does not allege a contravention of the Act. It is a general commentary in our view. vi. On 27 February 2024, requesting reasonable adjustments at a meeting with John McOuat and Rhona Di Meola? and/or[328]The claimant did ask for reasonable adjustments at that meeting, and the respondent concedes that this is a protected act. vii. Between 29 February 2024 and 07 March 2024, emailing John McOuat, Jovia Edokpayi and Rhona Di Meola to ask for her complaints about discrimination to be treated as a formal grievance?[329]The terms of the emails are referred to. The claimant stated that she wished to put forward a formal grievance, and was told how to do so, but did not. This does not allege a contravention of the Act. b. Were the above acts protected acts as per Section 27(2) of the Equality Act 2010?[330]The two matters referred to above at (ii) and (vi) are, the others are not. c. In the alternative, did the acts at 13. a. above make the Respondent believe that the Claimant had done or may do a protected act?[331]No. This was not put to the respondent’s witnesses and no finding can be made that that was the respondent’s belief in light of that. d. Was the Claimant subjected to the following detriments: i. On 23 August 2023, in a meeting, Sgt Iain Fraser suggesting that the Claimant “couldn’t cope” with racist members of the public because she had reported the KKK comments?[332]No, for the reasons given above. It was from genuine concern for her. ii. On 23 August 2023, at a meeting Sgt Iain Fraser questioned why the Claimant said that her workplace was not safe after she complained about the KKK comments, which minimised her complaints?[333]Sergeant Fraser did ask the claimant why she said that her workplace was not safe, but that was as the incident occurred in the public office, with officers in the same building, and he sought to understand why she had made her remarks about shutting down, and why she said she did not feel safe. His doing so did not minimise her complaints, on the contrary he was seeking to understand them and the impact that the event had had on her. Doing so was not minimising a complaint in any way. His question was not because of any protected act. iii. On 29 August 2023, in a meeting, being told by John Lumsden that the Respondent “can’t do anything” about her concerns about the KKK comments?[334]The context was not as the issue suggests, rather Inspector Lumsden was referring to the breakdown in the relationships between the claimant and the other PESAs. He did not say that he could not do anything. He was still doing something, he made proposals to colleagues, and after he received a reply he went back to the claimant to explain what was being done about it, which included line managers speaking to Mr Martin. His actions are directly contradictory to the remark alleged, and we conclude that it was not made. In any event it was not because of the protected act. iv. From 20 September 2023, not being given key PESA duties at Stonehaven (including lost property, banking and audits)?[335]The claimant had been given some PESA duties, which Inspector di Meola regarded as the core duties, but not some of those that her predecessor who had retired had done. We accepted Inspector di Meola’s evidence that before the claimant started she gave some of the retiree’s duties to the other PESAs for their development. She was aware from the claimant that she did not think that she had been properly trained, and decided that remedying that was the first step to take. That was entirely reasonable. In any event there was no evidence that those at Stonehaven knew of the protected act. v. From 20 September 2023, not being fairly allocated duties at Stonehaven by her PESA colleagues Gavin Crawford and Ashley Ross?[336]The clear evidence was that the allocation of duties was not for the PESAs themselves, but for the Sergeant and Inspector. In any event there was no evidence that either of the PESAs could have known of the protected act. vi. From 11 October 2023, Gavin Crawford and Ashley Ross refusing to train her?[337]We accepted the evidence of Sergeant McOuat and Inspector di Meola that the PESAs had sought to train the claimant. The claimant had been welcomed initially, as she accepted. It was a new start for her. The claimant did however rather quickly raise issues and concerns as to how she was being treated, such as her email to Chief Superintendent Stephen. Given all the evidence we heard we did not consider that the fact had been proved, but even if it had been they did not know of the protected act. vii. On 22 November 2023, being told by Insp Rhona Di Meola to “ignore” Gavin Crawford and the Respondent deciding to take no further action?[338]Inspector di Meola could not recall this matter given the passage of time as referred to above, and said that she would not have made such a comment. We accepted her evidence. The respondent took no further action on the blonde moment comment as both Sergeant McOuat and Inspector di Meola considered from what the claimant had said in emails that she had addressed it with him. She did not indicate to them that she perceived it as harassment, and she did not raise any grievance about it. There was nothing to take action on given those circumstances in their view, and we consider that entirely reasonable. In any event Inspector di Meola did not know of the protected act. viii. On 09 January 2024, by Insp Rhona Di Meola, the Claimant being told that she would not be allowed to work the same PESA duties as her colleagues?[339]That is not how the Inspector put it. She explained that the claimant would have training initially on the core duties she was doing, after which additional training would be considered. That could include lost and found property for example. As stated, Inspector di Meola did not know of the protected act. ix. On 23 January 2024, after attending work on a rest day to try and get annual leave authorised, Inspector Rhona Di Meola yelled at the Claimant that Chief Inspector Christopher Kerr was a very busy man?[340]We accepted the evidence of the Inspector that she did not “yell” at the claimant. As noted above she spoke to the claimant about what had happened appropriately. We consider that the claimant’s evidence was an exaggeration and not reliable, and again in any event Inspector di Meola did not know of the protected act. x. Between 29 February 2024 and 07 March 2024, when the Claimant tried to raise a grievance, being passed between HR and John McOuat with neither willing to deal with it?[341]The claimant was not passed between HR and Sergeant McOuat, rather each of them explained to her the process for initiating a formal grievance, where the circumstances of the conversations were somewhat different, but with Sergeant McOuat clearly telling the claimant in his email how to do so, which the claimant then did not do. Separately we did not consider that there was any evidence which was reliable to support a contention that they had done so because of any protected act. What Sergeant McOuat was trying to do was agree a shift pattern with the claimant, and it was clear that he was continuing to do so after the meeting on 27 February 2024. That is not consistent with his also seeking to cause a detriment to the claimant in relation to what she sent to him as a complaint. He was telling her how to progress it, not trying to prevent her doing so. Ms Edokpayi also told her how to progress it, albeit using different words to do so. If the claimant had followed what they told her, she would have raised the grievance properly. xi. On 08 March 2024, a phone wire was wrapped around her office chair. This caused her discomfort as she removed it. The Claimant reported to Sgt John McOuat but it was not investigated?[342]We did not consider that this had been established. We did not regard the claimant’s evidence as reliable. If she had a concern that the phone wire had been wrapped around her chair maliciously, the obvious thing to do was to report it before it was moved. She did not do that. Nor did she take the second obvious alternative step of taking a photograph. She simply removed the evidence of it. Having done so, there was nothing that could be investigated in any sensible way. Sergeant McOuat emailed the claimant at the time to explain that as she had removed the wire she had referred to in an email to him he had no lines of enquiry to pursue. Had the claimant wished to raise the matter as a complaint or grievance it ought to have been left in place to be examined by him or another person, or at the least a photograph taken of it. It was the claimant’s own action that meant that it could not be investigated. The respondent did not fail to do so in those circumstances. In any event we did not consider that there was any reliable evidence that Sergeant McOuat had decided not to do so because of any protected act. xii. Gavin Crawford raising a bad faith grievance against the Claimant, which she was told about on 02 April 2024? And[343]For the reason given above this was not a bad faith grievance. In any event there was no evidence he knew of the protected acts. xiii. Being excluded from staff social media groups, to 28 June 2024?[344]As addressed above there was one social media group for Marischal College, but the issue in relation to that is outwith the jurisdiction of the Tribunal. e. Were the detriments at d. above because of the protected acts that the Claimant did ata. above, or that the Respondent believed the Claimant did or would do as perb. above, on the following basis: i. (d)(i) because of (a)(ii) and/or (b) ii. (d)(ii) because of (a)(ii) and/or (b) iii. (d)(iii) because of (a)(i), (ii), (iii) and/or (b) iv. (d)(iv) because of (a)(i), (ii), (iii), (iv) [from 21 November 2023] and/or (b) v. (d)(v) because of (a)(i), (ii), (iii), (iv) [from 21 November 2023] and/or b vi. (d)(vi) because of (a)(i), (ii), (iii), (iv) [from 21 November 2023] and/or (b) vii. (d)(vii) because of(a) (iii), (iv) and/or(b) viii. (d)(viii) because of (a)(i), (ii), (iii), (iv) and/or (b) ix. (d)(ix) because of (a)(i), (ii), (iii), (iv), (v) and/or (b) x. (d)(x) because of (a)(i), (ii), (iii), (iv), (v), (vi), (vii) and/or (b) xi. (d)(xi) because of (a) (ii), (iii), (iv), (v), (vi), (vii) and/or (b) xii. (d)(xii) because of (a) (ii), (iii), (iv), (v), (vii) and/or (b) xiii. (d)(xiii) because of (a)(i), (ii), (iii), (iv), (v), (vi), (vii) and/or (b)[345]In all respects the answer is no. None of the matters were because of any protected act. Remedy 12. If the Claimant is successful in one or more of her claims, what is an appropriate award?
Remedy
[346]The claim in relation to the lowering of the counter succeeds. As the authorities above set out, what the Tribunal awards compensation for is the effect of the discrimination. It requires to seek to assess what that was, in effect disregarding what would have occurred in the absence of the discrimination.[347]In the Tribunal’s view there was no financial impact from the failure to implement those adjustments. It did not have an effect on when the claimant went off sick or for how long she has remained off sick as addressed above. In our view that is because it was but a very small part of the issues that the claimant had, and had raised, with her employer. Her focus had been on the shift pattern she sought to have implemented, being that of four days on and two off, and with her various complaints against her colleagues and managers. We considered that it was relevant that lowering the desk, or an alternative such as a chair, was not highlighted for example to occupational health when she discussed matters with them. Whilst it is possible that it may have been because of a later exacerbation, it was also not referred to in the GP fit note of 26 February 2024 even where foot pain was the cause of absence. There is only a passing reference to it at the meeting on 27 February 2024. Despite the relatively large volume of email correspondence it is also mentioned very little by the claimant. We have concluded that even if the respondent had stated in early 2024 that it would be investigating the issue, and then implemented it, that would not have had a material if any impact on what happened, that the claimant would still have gone off ill on 11 April 2024 and onwards, and would not have returned to employment with the respondent.[348]There is therefore an entitlement to injury to feelings only. An award for that is appropriate, but at the lower end of the lower band from Vento. There was little direct evidence on the extent of the injury to feelings on this specific aspect. The claimant gave very short and general evidence of feeling very low, feeling misunderstood, not being heard and that she was invisible. There was no GP letter or report addressing injury to feelings or matters related to that. She produced a letter from Ms Hustings, a clinical psychologist, but that does not address this issue in any detail.[349]We therefore had little evidence of injury to feelings and this point as to the height of the counter and the impact of that was not addressed specifically in that context, but taking matters in the round and having regard to all the evidence we did hear the Tribunal concludes that an appropriate award is £2,000. In that regard it took account of the authority of Graham which it considered to be broadly comparable, and a good guide to the appropriate level of injury to feelings. The Tribunal noted that the respondent argued that an award of £5,000 was appropriate if a claim succeeded, and considered whether it should award that sum as a result. It considered that it was not in accordance with the statute to do so. The respondent was not aware of what the finding would be, and it can only have been a general remark. When deciding on what award to make the Tribunal considers that it must make its finding based on the evidence it heard, and that from that the award made was that which was appropriate. The respondent did not argue for any reduction in the award.[350]Interest is due thereon for the period from January 2024 to date, which is a period of 22 months. The Tribunal calculates interest to be £293.34. The total award is £2,293.34 accordingly.[351]Having reached that decision, the Tribunal considered again the issue of the reasonableness of the adjustment in circumstances where even if it had been effected the impact on events was limited at best. It concluded that it remained a reasonable adjustment. It did not fall within the circumstances outlined in Hindmarch. Had the claimant been told at the time that it was being progressed with a proper investigation into it, and later told the outcome of that, she would at least have had a greater sense of her views being listened to, and not being invisible. This was far from the only issue, but it was one of them, and the Tribunal remained of the view that the adjustment referred to was reasonable under the statutory provisions. The Tribunal considered that in the early months of 2024 when the claimant was at work that progressing the issue may have had some form of impact on her perception of matters. After she went off ill the issue was, we considered, not one that if addressed by the respondent would have led to the claimant returning to work because of the various other issues that there were. We considered however that at the time when this issue arose, in or around January 2024, that was a different set of circumstances, and that at that point it was a reasonable step. That matters later changed from the point the claimant went off work through illness, and did not return, does not change that analysis. 13. Should the compensation be uplifted if the Respondent failed to follow the ACAS Code of Practice on Disciplinary and Grievance?[352]No. There is no basis to hold any failure on the part of the respondent in that regard. The claimant did not raise a grievance formally. At the closest we considered that she indicated that she was going to do so. The Tribunal concluded that the respondent did not breach the Code of Practice. There was no argument for the respondent that there should be a reduction from the claimant not formally raising a grievance. 14. Are there any appropriate recommendations for the Tribunal to make in the circumstances?[353]The Tribunal does not consider that it is appropriate to make any recommendation. It does however consider it appropriate to state that it has a concern over the respondent’s practices firstly to require an employee to apply for reasonable adjustments through SCoPE under its flexible working arrangements, and secondly in relation to Access to Work.[354]Flexible working and reasonable adjustments are entirely different concepts. The former is applied for, and is, a form of request. The latter is, if the qualifying terms of the statute are met under section 20, a duty falling on an employer. It seems to us that as the respondent can impose a change to shifts on 28 days’ notice and record that, as it conceded in evidence, that there is likely to be a simple solution to allowing HR or a line manager to apply on SCoPE for a change to shift patterns in effect on behalf of the employee so as to progress the reasonable adjustments required. That we heard allows a check to be made on the impact if any on remuneration. A step on behalf of an employee may be required in the event that the employee is off work ill and is a disabled person, but it was accepted in evidence that such an employee could not make the application for what may be required to allow a return to work with an adjustment. Whilst the claimant was intransigent in not following that process, despite encouragement to do so from her union representative, it was not in law a step that she required to take for the adjustment to become required. For the reasons we have addressed above that did not impact on the outcome of this case so far as financial losses were concerned, but in other circumstances may do so.[355]The Tribunal considers secondly that it is not a defence to the duty to make reasonable adjustments to state that before anything can be considered an Access to Work referral must be made by the employee, or words to that effect. It is not in accordance with the purpose of the Act. It is liable to lead to very significant delay at the least, and is in reality an attempt to contract out of the duty. If there are reasons why a proposed adjustment is not reasonable, then if the conditions in Latif are met the onus may fall on the respondent to establish that. In our view the answer of referring it to Access to Work is not a blanket defence that satisfies the statutory terms. At best it is one factor to consider.[356]Each is therefore a matter that the respondent may wish to consider its future position on carefully.
Conclusion
[357]In light of the findings made above, the Tribunal makes the finding and award in relation to sections 20 and 21 made above and otherwise dismisses the Claim. Entered in register: 9 January 2026 and copied to parties E.T. Z4 (WR) 5 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000945/2024 10 Deliberations held in chambers in Aberdeen on 6 January 2026 Employment Judge A Kemp 15 Mrs Neelam Puri Claimant In person 20 Scottish Police Authority Respondent Represented by: Dr A Gibson, 25 Solicitor 30