S McAllister v Bell Building Projects Ltd: 8001765/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001765/2025
Between
Shannon McAllisterClaimantBell Building Projects LimitedRespondent
Before
Employment Judge M A MacleodMs Katarina Stein (instructed by Advocate) for respondentrradar (Scotland) Ltd for respondentDate 7 May 2026
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that the claimant’s claims all fail, and are dismissed.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 18 July 2025 in which she complained that she had been discriminated against on the grounds of disability and sex by the respondent.[2]The respondent presented an ET3 in which they resisted all claims made by the claimant. ETZ4(WR)[3]A Hearing was listed to take place in the Employment Tribunal, Glasgow, on 9 to 12 March 2026. The claimant appeared on her own behalf, and the respondent was represented by Ms Stein, Advocate.[4]A Joint Bundle of Productions was presented to the Tribunal upon which reliance was placed during the course of the Hearing. The claimant gave evidence on her own account.[6]The respondent called as witnesses:a. Lauren Henderson;b. Stuart Moncrieff;c. Alison Welsh
List of Issues
[7]In the Note following Preliminary Hearing which took place on 22 October 2025, Employment Judge Murphy set out the list of issues to be determined by the Tribunal in this case. The issues for determination are therefore as follows: Time Limits
List of Issues
[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 28 February 2025 may not have been brought in time.[2]Was the detriment (time off for dependants) complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?b. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus EC extension) of the last one?c. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?d. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[3]Did the claimant have a disability or disabilities as defined in section 6 of the Equality Act 2010 at the time of the events that the claim is about (namely April to May 2025) in respect of ADHD, Auditory Processing Disorder (APD), or Anxiety and Depression? The Tribunal will decide in relation to each assessed impairment:a. Did she have a physical or mental impairment, namely ADHD, APD and/or anxiety and depression?b. In each case, did it have a substantial adverse effect on her ability to carry out normal day-to-day activities?c. If not, did the claimant have medical treatment including medication or take other measures to treat or correct the impairment?d. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?e. Were the effects of the impairment long term? The Tribunal will decide: i. Did they last at least 12 months, or were they likely to last at least 12 months? ii. If not, were they likely to recur? Discrimination Arising from Disability (Section 15, Equality Act 2010)[4]Did the respondent treat the claimant unfavourably by dismissing her on 15 May 2025?[5]Did the following things arise in consequence of the claimant’s disabilities (principally in consequence of the claimant’s asserted anxiety): a. Claimant left work for ill health reasons on 13 May 2025 after speaking to Nicolle Horne.[6]Was the dismissal because of the claimant’s departure from work on 13 May 2025 and the surrounding circumstances?[7]Was the dismissal a proportionate means of achieving a legitimate aim?[8]The Tribunal will decide in particular:a. Was the treatment an appropriate and reasonably necessary way to achieve those aims?b. Could something less discriminatory have been done instead?c. How should the needs of the claimant and the respondent be balanced? Reasonable Adjustments (Sections 20 & 21, Equality Act 2010)[9]Did the respondent know, or could they reasonably have been expected to know, that the claimant had the disabilities? If so, in each case, from what date?[10]A PCP is a provision, criterion or practice. Did the respondent have the following PCP in the period from around early April 2025: a. A requirement for the claimant to undertake a heavy workload composed of several different components.[11]Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s asserted disabilities of ADHD and anxiety and depression, in that the claimant found it hard to concentrate on the various different components to her workload, especially when working from home.[12]Did the respondent know or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[13]What steps could have been taken to avoid the disadvantage? The claimant suggests:a. Reducing her workload or, at least not adding further tasks and duties to her workloadb. Not sending the claimant on site one day per week in May 2025.[14]Was it reasonable for the respondent to have taken those steps, and if so, by when?[15]Did the respondent fail to take those steps? Direct Sex Discrimination (Section 13, Equality Act 2010)[16]Did the respondent do the following things:a. On 25 April 2025, did Stuart Moncrieff dismiss the claimant’s earlier complaints raised with him on 7 April 2025 about the conduct of Zack Devlin to her during a phone call that day when the claimant alleged to Mr Moncrieff that Zack Devlin had been aggressive and cut her off when speaking. Did Mr Moncrieff tell the claimant on 25 April that he had discussed the matter with Martin Bell in the meantime and that Mr Bell had complained about the claimant raising issues about Mr Devlin, a senior employee, and suggested that the claimant had been disrespectful in doing so?b. Did the respondent decline thereafter to look any further into the claimant’s complaint about Mr Devlin and did Mr Moncrieff imply to the claimant that there would be negative repercussions for her, were she to continue to complain about Mr Devlin?[17]If so, was that less favourable treatment because of the claimant’s sex? The claimant did not identify any direct comparator but indicated that she proposed leading evidence of an earlier incident in October 2024 in support of her assertion that the respondent was more dismissive of her complaint because she was female than it would have been of a complaint by a male colleague. She said that in October 2024, she and a female colleague, Lauren, had complained about their male colleague, Angus Park, who she alleges had made a racial remark. She says that she will give evidence that she and Lauren were told by management that they were being disrespectful to Mr Park. The claimant clarified that she does not complain about this as an act of sex discrimination of itself but that she wishes to lead evidence of this incident to support an inference of sex discrimination arising from the allegations in April 2025. Detriment for Time Off for Dependents (Sections 47C, 48(1) and 57A of the Employment Rights Act 1996)[18]Did the respondent do the following:a. Did Mr Moncrieff in December 2024 initially refuse the claimant’s request to take time off to look after her children on or around 12 and 13 December 2024 in circumstances where the claimant’s mother (her usual childcare provider) was unable to do so because of an important medical procedure?b. Did Mr Moncrieff refuse to allow the claimant to work from home on the 2 days in question to look after her children?c. Did Mr Moncrieff tell the claimant that if she did not come into the office that day, she would be liable to disciplinary action or words to that effect?d. Did Alison, an HR Adviser for the respondent, have a meeting with the claimant on 10 January 2025 when she subjected the claimant’s attendance record to undue scrutiny and unfair criticism including alleging that 4 days were treated as absences when, in fact, the claimant had worked from home on those dates by agreement with Mr Moncrieff?e. At the meeting on 10 January 2025, did Alison make remarks to the effect that the claimant should send her children to nursery even when they had a cold, in effect belittling the more serious illnesses the claimant’s children had actually had when the claimant had previously kept them off nursery?f. In or around February or March 2025, when the claimant asked to leave to attend a doctor’s appointment, was Mr Moncrieff unfairly grudging or unaccommodating? Did he make a comment like “I can’t stop you” but imply that her departure was frowned upon?[19]By doing these things or any of them, did the respondent subject the claimant to a detriment?[20]If so, was it done on the ground that the claimant had taken a reasonable amount of time off during her working hours on around 12 and 13 December 2024 because of the unexpected disruption of arrangements for care of a dependent or dependents (her children) or to provide assistance to a dependent (her mother) when her mother had fallen ill (i.e. a ground under section 57A of the Employment Rights Act 1996). Findings in Fact 8. Based on the evidence led and the information provided, the Tribunal was able to find the following facts admitted or proved. The Tribunal has not made findings in relation to every fact which was the subject of evidence in the Hearing, but only to those relevant to the issues before us. 9. The claimant, whose date of birth is 22 September 1997, commenced employment with the respondent as an Estimating Assistant on 25 March 2024. Her employment was ended by dismissal on 15 March 2025. 10. The respondent is a limited company providing industrial and commercial building projects. 11. The claimant was provided with a statement of terms and conditions of employment, which was signed both by her and on behalf of the respondent on 10 April 2024 (63ff). The statement provided that she had commenced employment on 25 March 2024. 12. It was provided that her normal place of work would be 19 Robert Drive, Helen Street, Glasgow (the company’s office), but that she would be required to work at any company or client site throughout the UK as required. 13. Her employment was subject to the satisfactory conclusion of a 3 month probationary period (paragraph 8). Her salary was £27,500 paid monthly in arrears. 14. Paragraph 13 confirmed that the claimant’s hours of work were to be 39 per week. The normal office hours and days of work were said to be 8am to 5pm, Monday to Thursday, and 8am to 4pm Friday, with an hour unpaid each day for lunch. 15. Under the heading “Absence Reporting”, paragraph 18 provided: “You (or someone on your behalf if you are unable to do so) must notify your Manager as soon as possible or by 9.00am at the latest on the first day of your absence if you are unable through illness or injury to attend work. Notification must be by telephone providing full reasons for your absence. Email or text messaging is not acceptable unless in exceptional circumstances but then must be followed up with a telephone call to your manager by 10.00am. Notification in this manner will be accepted up until the end of the third qualifying day, then: a self-certification form must be completed on the fourth day of absence and sent immediately to the Finance Controller and the Employee should continue to telephone their manager every day, then if the absence is for a period of eight days or more you must provide the Company with a medical certificate. This should be submitted to the Finance Controller and the Employee should continue to telephone their manager every week. Further details of the rules and procedures in respect of absence due to sickness or injury can be found in the Employee Handbook.” 16. Under the heading “Medical Reports”, paragraph 21 included the following provision: “If during your employment you contract or develop any ongoing illness or medical condition which may affect your work, this should be reported to your line manager immediately. If you are unable to carry out your contractual obligations due to a medical condition, we reserve the right to review your continued employment.” 17. Paragraph 22 confirmed that it was a requirement of the claimant’s employment that she would, if requested, undergo a medical examination by an occupational health practitioner nominated by the respondent. 18. The claimant’s duties as Estimating Assistant were primarily to support the Estimator, Mr Park; to send out tenders to sub-contractors; to deal with them as they arrived; to update spreadsheets; to obtain quotes from suppliers relating to the bill of quantities. Her direct line manager was Stuart Moncrieff, the Chief Operating Officer at the time. He was based in the same office as the claimant’s base, though she was with the estimating team on the ground floor, and his office was on the first floor. She spoke to him on a regular basis, often several times each day. 19. A document was prepared by Lauren Henderson (191ff) setting out the different tasks allocated to different staff within the teams. This document was prepared in 2025 once Leia Chappell started working with the respondent, assisting the estimating team, but in evidence Ms Henderson stated that this was accurate as at the time when the claimant commenced employment, other than Leia Chappell’s name being attached to the tasks. 20. The claimant’s name appeared against the following tasks: Saving Bills into Server; Creating enquiries for supply chain and consultants; Issuing to supply chain and consultants via Bidwork; Chasing supply chain; Printing RFI responses for folders; Printing tender addendum responses for folders.[21]Bidwork was a form of software program operated by the estimating team.[22]Ms Henderson emailed the claimant on 11 April 2024 (84) to remind her about the need to ensure all quotes were saved and updated on the system. The claimant had emailed a contractor to ask if they intended to provide a quote, but the contractor confirmed by return that they had already done so. The claimant replied to Ms Henderson on 11 April to advise that she must have missed this one, and advised that she would double-check them all.[23]On 31 May 2024, Mr Moncrieff emailed the claimant (91) to advise that the “Hydrock quotes” were not saving properly, and that he could not open them. He asked her to scan them as a pdf and save them in the folder.[24]He sent a similar email on 3 June 2024 (93) reminding the claimant to scan quotes and save them or save them in an alternative format. He advised her that he could not read the quotes and that he needed to be able to do so.[25]A number of other examples were produced in the Joint Bundle.[26]Mr Moncrieff regarded missing quotes on the system as very significant, on the basis that they could delay the return date for the tendering process. If the tender was not specifically available, the employer’s cost consultant would have to review the process with a number of qualifications attached. This could cause reputational damage to the business, and a contractor may find their bid rejected simply because a full quote was not available. He described it as an “unforgiving landscape”.[27]A screenshot was produced to the Tribunal (119) which appeared to show an incomplete snapshot of an email inbox, comprised of messages obtained by a search at the top of the page “stuart wfh”. WFH means, in this case, working from home.[28]We regarded this document as almost completely unhelpful, and were unimpressed that any reliance could be placed upon it. However, there is an email from Mr Moncrieff to the claimant apparent in the preview window on 6 October 2024, with the subject line “RE: WFH”, and a message “Sure, no problem Shannon”. Mr Moncrieff’s evidence was that he understood this to be a positive response to a request by the claimant to work from home.[29]The claimant’s evidence was that the respondent did not have a working from home policy. Mr Moncrieff’s evidence was that he never told the claimant this, but that he had said that in an emergency a request could be made and granted if appropriate.[30]On 9 December 2024, a message is previewed indicating that Mr Moncrieff was out of the office. The claimant’s evidence was that this was a further email to him to ask permission to work from home, to which this was the reply. She therefore contacted Hope Woodhead, in Human Resources (HR). On 10 December 2024, it is apparent that Ms Woodhead emailed the claimant about this. Her message began: “I need to speak with you regarding…” Again, we regard it as entirely unsatisfactory that the full message was not produced, and we do not consider it to be the role of the Tribunal to guess what the remainder of the message said.[31]It is apparent that the claimant did have a conversation with Ms Woodhead in which she said, according to her own evidence, that her mother was due to have surgery, as a result of which she would not be able to take care of the claimant’s children on 12 and 13 December.[32]Following that conversation, the claimant emailed Ms Woodhead on 10 December 2024 (130): “Thank you for your call earlier Hope, as discussed, I will not be able to work on Thursday 12/12 or Friday 13/12. I will take these 2 days unpaid. My mum will be having a skin graft tomorrow and requires time to recuperate. I will take these 2 days unpaid. Regarding the attendance meeting with the HR manager if you could let me know when this will be taking place so I can organise a representative to be present.”[33]The upshot of the conversation was that the claimant was advised that she would require to attend the office to work, and that if she needed to look after her children she would have to take unpaid leave.[34]Mr Moncrieff did not speak to the claimant about this request.[35]The claimant’s position was that she felt threatened by the respondent when they refused her request to work from home, and that she was very distressed by that refusal. Her evidence was that Ms Woodhead told her that Mr Moncrieff had said that he was unhappy with her having time off and that if she did not attend she would be subject to disciplinary action. Ms Woodhead did not give evidence before us, but we were inclined to regard the claimant’s evidence with some reserve as it is clear that no disciplinary action was taken against the claimant thereafter. Mr Moncrieff had no recollection of this matter.[36]She considered that her relationship with the respondent became very negative after this.[37]The reference to the attendance meeting related to a concern raised about the claimant’s absences from the office, set out in a document (131) citing a number of absences together with occasions when the claimant left the workplace early. The claimant referred to this in evidence as a “disciplinary meeting”. There is no evidence that it amounted to a disciplinary meeting, nor that it was other than an absence review conducted informally.[38]Alison Welsh, an external HR consultant contracted to assist the respondent, met with the claimant on 9 January 2025. She summarised the terms of the conversation in an email dated 10 January 2025 (139): “I am following up just to informally summarise our conversation yesterday. I attach your absence record for reference and as discussed, we acknowledge that there have been regular absences from work over the past few months, mainly relating to childcare issues. We understand that you are going through some challenges in your personal life at this time and hope that things will be back to normal soon. We also understand that emergency situations especially with young children do happen, however you have had repeated absences from work which needs to improve going forward. Time off for dependents leave is normally to deal with the emergency situation and is normally unpaid, unless you have prior agreement to use a holiday. If the same emergency situation keeps arising, then as discussed, it is reasonable to ask you to consider other alternatives for cover at home, which would avoid you being absent from work. Working from home in these circumstances would not be an option. Can I also stress that you should always obtain prior approval from your manager before leaving work early or arriving late for any reason, including doctors’ appointments. If you have any questions please do not hesitate to contact me or your manager.”[39]The claimant replied that morning (138): “Thanks for your email. Just to reiterate, all absences I have had have been due to childcare issues, other than the day I had off for a funeral. Half of these absences I was working from home as discussed and agreed with my line manager. See attached. I completed all tasks for these days and working past my allotted time 9-5 on several occasions. At the time of these absences, I should have been informed that these were not acceptable to be classed as working from home, not 3 months later during an attendance review. I do not leave work early or arrive late without consulting my manager, so I am unsure what is being suggested here? To confirm, working from home is not an option for me as I have kids but it is an option for other staff members at a managers discretion. I trust the issues I raised yesterday have also been discussed.”[40]In her evidence, the claimant said that she accepted that she had been told of the importance of reporting any absence to her manager, but that this made her feel that she would not be able to approach him when the situation arose in May 2025.[41]Ms Welsh emailed the claimant on 13 January 2025 (142) to confirm that while they appreciated the reasons for her absences and time off for dependents was often unavoidable, it was necessary to make sure that her absence was minimised going forward and that alternative arrangements should be considered where possible to deal with emergencies.[42]She went on: “Regarding working from home, as a general rule we require all staff to be in the office, some special exceptions may be allowed for periods of time, and with prior approval by a Director, this would depend on the role. On the days when you were approved as working from home, I cannot comment on this in terms of you being able to perform your role and any impact on productivity etc, but this is something that your manager can discuss with you… I have fed back your comments but wish to reassure you that absence reviews apply to all staff, as does working from the office.”[43]The claimant completed a self-appraisal form, which was undated (133ff).[44]In section 2, the claimant was asked what she had accomplished over and above the minimum requirements of the job description in the period under review. She responded: “I believe that I have integrated well with the estimating team and have learned a lot since I started with BBP 11 months ago. I make a conscious effort to go above and beyond in any way I can, when I feel like I can make a positive contribution to the team…”[45]We concluded from this that the form must have been completed by the claimant 11 months after she started with the respondent. Since she started with the respondent in March 2024, the form must have been completed in February or at the latest March 2025.[46]When asked in section 3 if she had any difficulties she had in performing her work, she responded “NA”, understood to mean “not applicable”.[47]When asked to identify what she did less well, had difficulty with or failed to enjoy, she replied: “While I thrive in environments that require creative thinking and problem solving, I do find that I sometimes struggle with the more mundane and repetitive tasks. Tasks like saving emails, issuing enquiries and updating Bidworks can feel monotonous, however I do recognise that these tasks are essential for the smooth functioning of the projects and estimating team…”[48]The claimant suggested a number of areas into which she would like to branch to exercise creative skills. She said that she was craving more challenging opportunities for growth and more challenges in her day-to-day work life, feeling that she had mastered what was expected of her in her current job. Her primary goal was to achieve promotion. She stressed that she really appreciated the opportunities and training which she had received.[49]In her self-appraisal form, she made no reference to any difficulties which she was experiencing with her manager, Mr Moncrieff, nor to any issues relating to any disability from which she was suffering. She maintained in evidence that this was because this was not the appropriate place to raise such matters.[50]When the claimant was asked about when she had completed this form, she was very unclear. Initially she was asked in cross-examination about whether it must have been about March 2025, she appeared to agree. However, when pressed by the Tribunal to confirm that it must have been in February 2025 that this was completed, the claimant was very reluctant to agree, and became distressed. It was our clear impression that the claimant did not wish us to conclude that the form was completed as late as February or March 2025, on the basis that there were comments therein which were inconsistent with her assertion that the working environment was “toxic”.[51]The claimant’s claim also contained an assertion that Mr Moncfrieff had “grudgingly” allowed her to attend a GP appointment. She did not refer to this in her witness statement, nor in her oral evidence. Mr Moncrieff was not asked about it either in chief or in cross-examination. The Tribunal draws no conclusion on this point on the basis that no evidence was led about it.[52]On 19 March 2025, Ms Henderson sent an email (146) to Zach Devlin, Angus Park, Stuart Moncrieff and the claimant. Mr Devlin was based in the Manchester office of the respondent. In the email, Ms Henderson said: “I am checking & chasing all projects in Shannon’s absence, and I have found a few things we have to discuss as we are not following processes. Bidwork MUST match the enquiry sheets saved in the server, whether this is a sub advising they will price, cannot price or have supplied a cost. Estimators have not to chase subs for costs, this is managed by Shannon via Bidwork or telephone call, the notes are then added onto the enquiry sheet for everyone to see. If estimators wish for certain subs/trades to be chased, let us know. If anyone wants subs to receive the enquiry sheets, please ensure emails & contact details are added for further reference. When copying subs off the master subs list, do not cut and paste as this is removing important details from my sheet. If anyone needs help or has any issues with this, give me a shout!”[53]The claimant did not consider that this email amounted to criticism of her performance.[54]In April 2025, an issue arose between the claimant and Zach Devlin, an estimator in the Manchester office. The claimant’s complaint was that Mr Devlin had shouted at her. Mr Moncrieff spoke to both the claimant and Mr Devlin about this. Mr Devlin said that there were tensions between himself and the claimant, and that he found her very difficult to communicate with. He did not accept that he had shouted at the claimant, but suggested that she had raised her voice at him. Mr Moncrieff also found that others had witnessed the conversation in question, and had noted that the claimant had been abusive towards Mr Devlin.[55]No formal action was taken against either the claimant or Mr Devlin in relation to these matters, though both were spoken to. Mr Moncrieff spoke to the claimant about his concerns about the relationship which they needed to have, and that if they could not have a respectful conversation the estimating process could not be properly completed. He did not tell the claimant to be respectful to Mr Devlin but spoke of the need for respect in their communications. Mr Bell spoke to Mr Devlin about this. The claimant did not raise any grievance or complaint at that time about Mr Devlin’s alleged conduct towards her.[56]On 7 May 2025, Ms Henderson emailed Mr Park (200) to ask him to speak to the claimant and Leia about a number of matters, on the basis that “We need this sorted ASAP or bad habits will continue.” She referred to quotes being missed in emails, which meant they were then chasing the supply chain; quotes being saved in the wrong folders; quotes being saved in server, not in a sub-contractor folder, and a number of other concerns including staff sitting on mobile phones all day while telling her that they did not have enough time to complete tasks.[57]A meeting took place on that date to discuss performance matters with the team. Ms Henderson and Mr Park met with the claimant and others to address the ongoing difficulties which they felt they were encountering with the administration of the work of the team. They reported back to Mr Moncrieff that the claimant did not engage with them at the meeting, staring at the floor and saying nothing. Ms Henderson confirmed in evidence that this was an accurate representation of the claimant’s attitude at the meeting, feeling that she was not pleased that the issues were being raised with her. They lacked confidence that the claimant would improve her performance. Mr Moncrieff was of the view that the performance of the claimant did not improve after the meeting. The claimant’s position in evidence was that she did not engage with the meeting as she was completely overwhelmed.[58]On 12 May 2025, Ms Henderson emailed the claimant and Ms Chappell, with a copy to Mr Park (219) to observe that she had noticed a few things, and wanted to set out a number of points for clarification and process.[59]There followed a bullet point list of issues which required to be dealt with, including some of the issues which had been raised in the email of 7 May 2025.[60]On that date, Ms Henderson emailed the claimant (221) to point out that she had sent a reminder to a contractor who had already provided the quote in January, and had discovered that the quote was not saved on the server.[61]On 13 May 2025, the claimant attended the office, but during the course of the day she went upstairs, then came back to her desk, picked up her possessions and left. She said nothing to Ms Henderson or any other colleagues there. She did not report to her manager Mr Moncrieff, whose office was on the first floor and who was present on that morning, that she intended to take time off. She went instead to the office of Nicolle Horne, in HR, to advise her that she was leaving. She said in evidence that she could not speak to Mr Moncrieff as she was not thinking straight at the time, and wanted to speak to someone who would understand her situation.[62]Ms Horne reported to Mr Moncrieff that the claimant had come to speak to her, had been upset and had said she was leaving. Ms Horne said she did not know whether or not the claimant would be returning. Mr Moncrieff was surprised that the claimant did not report to him that she would be going off. He referred the matter to Ms Welsh as the HR Consultant for advice.[63]She requested time off (229) for a “sickday”, for 4 days, but the request was declined by Ms Horne on 14 May. She also emailed Ms Horne on 14 May 2025 (230) to advise that she had spoken with her doctor and “agreed it will be best for me to take the rest of the week off”. She submitted a selfcertification for absence (231), in which she gave the details of her sickness as “Off due to work-related stress, following my doctors advice to take time off to manage my mental health and well-being.”[64]The claimant’s mother contacted the NHS Greater Glasgow & Clyde Mental Health Service on 13 May 2025 at 2.49pm. A note of that call, taken by a CPN called Samantha, was produced (320). The note confirmed that “Shannon’s mum Pauline called in (currently with Shannon and with her consent) says she is struggling with her mental health and this has heightened where she has walked out of her work today. .. The writer returned call to Pauline, Shannons Mum in the first instance who reported that she was currently with Shannon. Stated that she was struggling with her mental health due to ongoing work stress, has left work early and plans to take the rest of the week off. phone was passed to Shannon who informed writer of the above information. Shannon was bright and chatty towards writer. Explained her current work stress and plans to take the week off to focus on her own mental health. Support and validation given regarding same… Shannon spoke about applying to study nursing at University and awaiting application response…No risks or concerns noted or reported during call.”[65]Mr Moncrieff discussed the matter with Martin Bell, but took the decision himself on 14 May 2025 to terminate the claimant’s employment. Ms Welsh prepared a letter on his behalf, which he approved. He was not aware of the claimant’s self-certification document nor of the request for time off at the point when he made the decision to dismiss the claimant. He had seen the email (230) to Ms Horne from the claimant at that time.[66]Mr Park emailed Ms Welsh on 14 May 2025 (378). In that email he said: “With regard to Shannon’s work, I have tried to tread softly on the problems I have had with the quality and application. I certainly didn’t raise any concerns with her in writing. I found things in the wrong folders, things saved as quotes which were actually emails declining to quote and saved as quotes. I had cause to remind her that saving quotes timeously and in the right place were an essential part of her job as this is very important with the timescales we operate to, being very tight. I did try to encourage her when noting when things were done right and on time. Quite often she was to be found slumped in her chair, hidden behind the half height partition looking at her phone. Due to the impact of the above on the team and the fact we had a new start, I had a meeting to reiterate the roles and responsibilities required for the team to achieve its goals. During this meeting Shannon didn’t engage at all and sat staring at the table. I wasn’t overly impressed with this but decided to let it lie. When I read Lauren’s email on Monday, I read it carefully and decided it was not overly accusatory and the content was necessary as a reminder of what was required and had been previously discussed. Shannon was on site on Monday and appeared in early on Tuesday. I heard her say that this was prompted by Lauren’s email. She was very quiet in the morning, and I returned to my desk at one point around lunch to find she had left without informing me, Lauren or indeed Stuart.”[67]Mr Moncrieff did not see this email before deciding to dismiss the claimant, but had spoken with Mr Park and was therefore aware of the concerns set out therein.[68]Mr Moncrieff became aware, before he issued the dismissal letter, that the claimant had travelled to a Bruce Springsteen concert which took place on the evening of 13 May 2025. The claimant’s position was that she discussed this with a mental health specialist who advised her that it would be good for her mental health to enjoy the concert, and thus she attended on that night. Mr Moncrieff suspected that the reason the claimant had left the office early on that day was in order to allow her to travel to the concert.[69]The claimant’s evidence was that she raised this during her call with the CPN on 13 May 2025 (320) and that the CPN was supportive of her attending the concert that evening. We found this difficult to believe: firstly, there is no note of this in the record created by the CPN, which is otherwise full and comprehensive; and secondly, we believe that if the claimant had raised this the CPN would have noted it as relevant to her state of mind and capacity at that time; thirdly, the claimant said nothing of going to the concert to her employer on the day or later, reinforcing our view that she was unwilling to let her employer know that she intended to go to a concert that evening; and fourthly, in our judgment, the claimant would be reluctant to ask the CPN about the concert in case she was advised not to go.[70]A letter was sent to the claimant by the respondent dated 15 May 2025, in the name of Ms Welsh. Ms Welsh did not make the decision to dismiss, but drafted the letter for approval by Mr Moncrieff. The letter stated (237): “Dear Shannon, I am writing to confirm that a decision has been made not to pursue formal processes and to end your employment with notice. The reasons for this are as follows: On Tuesday 13th May you left work abruptly during the working day and without informing or seeking permission from your line manager, Stuart Moncrieff, who was in the office at the time you left. On 9th January 2025 there was an informal meeting with you to discuss your absences from work and at that time we expressly communicated in writing the importance of notifying your line manager before leaving work for any reason. On 7th May a departmental meeting was held where some important performance matters were raised. These matters were followed up in writing to the team on Friday 9th May with some further follow up on 13th May. With a new member of the team, it was even more imperative that you demonstrated acknowledgement and commitment to resolving such matters and to lead by example. Unfortunately, informally raising performance matters with you does not appear to have had the desired response from you therefore the Company would have had to formalise a performance management process. We are in receipt of complaints from other team members about you spending prolonged periods of time on your mobile phone, when you are supposed to be working. Please note the following as set out in the Company Handbook. In normal circumstances, the Company reserves the right not to follow the Disciplinary Procedures for employees who have less than 23.5 months’ service. Except where, at the manager’s discretion, it is considered a suitable course of action to follow the Disciplinary Procedures. Your last day of employment will be today’s date 15th May 2025 and your notice will be calculated from tomorrow’s date. You are entitled to one week’s pay in lieu of notice from tomorrow. You will be paid all holiday accrued but untaken up to and including 15th May and your notice pay plus holiday will be paid by normal bank transfer on 23rd May 2025. Your P45 will be emailed to you. You do have the right of appeal and ask that you submit this in writing for my attention within 10 calendar days. All Company property in your possession including your Company laptop must be returned prior to the 23rd May 2025, please contact Nicolle Horne to make arrangements for this. failure to return this by the date requested would mean that any monies due to you may be delayed. Please confirm if you have any personal property and we will arrange for this to be returned to you. We wish to add that should you wish an employment reference please forward any request to me and we can arrange this for you. Yours sincerely, Alison Welsh HR Consultant”[71]On 15 May 2025, the claimant wrote to Ms Welsh to raise a grievance about the handling and termination of her employment with the respondent, and the manner in which, she alleged, her mental health concerns had been ignored (239).[72]She maintained that her mental health had been significantly impacted by the stress of managing a heavy workload, and feeling undervalued and unsupported. She also said that she raised these concerns on a number of occasions but no adequate support was provided. The working environment was increasingly toxic.[73]She alleged that her dismissal was discriminatory and unlawful, and based on unjustified reasons. She maintained that leaving work on 13 May was necessary because she was suffering a mental health crisis. She was granted permission to leave by Nicolle in HR, and therefore did not require to report to Mr Moncrieff.[74]She argued that Weronica (Ronnie) received clear preferential treatment in relation to childcare in comparison to her.[75]Initially, Ms Welsh proposed that since she was not involved in the decision to dismiss the claimant, she should handle the grievance, but the claimant raised a concern about the impartiality of the process. Ms Welsh took the view that it was still legitimate for her to investigate and deal with the claimant’s grievance, and did so. She wrote to the claimant on 22 May 2025 to acknowledge receipt of the grievance and to advise that she would be dealing with this.[76]Ms Welsh obtained statements from Mr Park (249), Ms Henderson (253), Weronika Wierbik (256), Aimee Fitzgerald Duffy (263), Nicolle Horne (265) and Zach Devlin (258). She also received responses from Mr Moncrieff to the points raised by the claimant in her grievance (267).[77]The claimant declined to attend a grievance hearing. As a result, Ms Welsh took the step of considering her grievance and the statements gathered, and issued an outcome letter dated 2 June 2025 (271ff).[78]With regard to the claimant’s complaint that her mental health concerns had been ignored, Ms Welsh said that there was no evidence to support that there was any awareness of mental health concerns, nor that she had raised this with anyone at work either formally or informally. It was recognised that the work was fast-paced and that a new member of staff was brought in to the team to share the workload. She rejected the suggestion that there was a toxic working environment within the team.[79]The claimant’s next complaint was that she had not been supported, particularly in relation to her request to work from home when she said that she had been threatened with disciplinary action should she not attend at the office. Ms Welsh found that there was no evidence that she had been so threatened; and that she had requested to work from home because her mother was not available to provide childcare, but that was refused; however she had been granted unpaid leave for time off for dependents, in line with the policy.[80]She found that there was evidence that her role was an office-based role, in which answering phone calls was part of her job. She also observed that in her recent appraisal she had raised no concerns about her workload, but gave the impression that she was very positive about her role and her future aspirations.[81]Ms Welsh referred to the conversation which she had had with the claimant in which she had raised the possibility of looking for other sources of childcare, but denied that this amounted to an instruction to take her children to nursery when they were ill.[82]She went over the reasons for dismissal, and confirmed that the respondent did not accept that the decision was unfair or discriminatory. There were genuine performance concerns which had been raised, and the claimant failed to comply with the absence reporting procedure. She repeated her assertion that there was no evidence that the claimant had suffered from poor mental health or was suffering a mental health crisis at work.[83]Ms Welsh did not uphold the claimant’s complaint that she had been treated unequally at work. The person she had referred to had followed the Flexible Working Policy in making a request, whereas the claimant had not made any such application.[84]Ms Welsh therefore concluded that the claimant’s grievance should not be upheld. She concluded the letter by advising the claimant of her right to appeal against the outcome.[85]The claimant did submit an appeal against the grievance outcome (277). Her appeal was dealt with by Martin Bell. The claimant requested not to have to attend a meeting, and accordingly Mr Bell carried out a review of the papers and information available to him.[86]He reached a decision and issued his outcome letter on 2 July 2025 (280). He did not uphold any of the claimant’s complaints and rejected her appeal, reflecting the findings made by Ms Welsh.[87]Following the claimant’s dismissal, she was signed off unwell by her GP, and remained unfit to the date of the Tribunal Hearing. She has received Adult Disability Payments and also Universal Credit. She did engage in baking, which she would then sell, from October 2025, earning approximately £200 to 300 each week. She would sell her baking at the Barras markets on Saturdays and Sundays. Her benefits payments amounted to £1,105 per month.[88]She started in late 2025 to apply for jobs, some part time, via Linkedin. She also applied to study nursing but was unable to take up her place due to illness. She has had no interviews following job applications.[89]She considered that her dismissal, and the criticisms which came with it, caused her confidence to be shattered, and she was unsure if she could work again in the construction industry.[90]The claimant presented a disability impact statement (318ff) and gave oral evidence about her conditions. She also provided medical evidence to which reference was had in the course of the Hearing. It is appropriate to deal with each of the conditions relied upon by the claimant in turn. ADHD (Suspected)[91]As the claimant accepted, she has not been diagnosed with ADHD, but suspects she experiences it. Her position is that she experiences symptoms including difficulty sustaining concentration, organising tasks, prioritising workload and managing multiple demands. In particular, she said that she struggles with “task initiation and with switching between tasks, especially in pressured or fast-paced environments”.[92]The claimant said that although she has not been diagnosed with ADHD, she had had a discussion with her doctor, and that this was a possibility. She said that she had experienced these symptoms for more than 12 months.[93]She did not raise this during the course of her interview, nor did she ever speak to Mr Moncrieff, her line manager, about this. Notably, in our view, she said nothing about it in her self-appraisal form (133ff). Indeed, in that form, in which she was seeking to advance her career, she made a number of comments which appear to be directly contradictory to the assertion that she struggled in pressured or fast-paced environments. Not only did she speak of wishing to expand her role, and to be promoted, she maintained that the parts of her job which she did best included “working well under pressure”; she also said “While I thrive in environments that require creative thinking and problem solving, I do find that I sometimes struggle with the more mundane and repetitive tasks. Tasks like saving emails, issuing enquiries, and updating Bidworks can feel monotonous, however I do recognise that these tasks are essential for the smooth functioning of the projects and estimating team.” She confirmed that her primary goal for the year was to “be promoted and take on more responsibilities”.[94]Her comments on finding certain tasks mundane and monotonous were not linked in any way to any condition such as ADHD. In the absence of any medical evidence supporting the claimant’s condition that she suffers from, or experiences, ADHD, the Tribunal is unable to reach any diagnosis on our own. We found the claimant’s evidence to be self-contradictory and confusing on this point. If she had indicated to the respondent in February or March 2025 during her self-appraisal that she believed that she had ADHD, and that it affected her ability to carry out monotonous tasks, this may have been a relevant consideration. However, given the stark difference between her evidence before us and what she said in early 2025 to the respondent, we cannot reach the conclusion that she was, on the balance of the evidence, suffering from ADHD.[95]Given that it is the claimant’s position that her condition was suspected rather than diagnosed (and understanding that diagnosis of a condition is not necessarily required for the Tribunal to find that she had it), we have found that the claimant has not proved that she is, or was at the material time, a disabled person within the meaning of section 6 of the Equality Act 2010 by reason of ADHD. The evidence does not support a finding in fact that she had ADHD during her employment with the respondent. The Tribunal, as we have said above, has no medical knowledge upon which to come to any independent conclusion about her condition.[96]It was put to the claimant that the reason why she did not concentrate on monotonous or mundane tasks was that she found them boring. She appeared to accept it could appear that she was easily bored, but maintained that this was not the case. Her position was that due to ADHD she was unable to carry out these tasks. We cannot sustain that submission on the evidence before us.[97]We did note that the claimant’s GP referred (321) to her having been referred for ADHD consultation. In addition, in August 2024, a note by a nurse practitioner, Ms Victoria McFarland (328), observed that she was on the waiting list for ADHD under NHS, following a private assessment which said that she was a high risk for both Autism and ADHD. We considered that it was difficult to place much reliance on this statement. The claimant does not rely on autism as a disability in these proceedings. She may have been at high risk but there remains no evidence upon which we could conclude that she was at that time suffering from ADHD as a disability within the meaning of the Act.[98]Accordingly, it is our finding that the claimant did not suffer from a disability within the meaning of section 6 of the Equality Act 2010 by reason of ADHD, primarily because there is insufficient evidence for us to reach such a conclusion; in any event, she has not demonstrated that such a condition was such that it has or had a substantial adverse long-term effect on her ability to carry out normal day-to-day activities. Auditory Processing Difficulties (APD)[99]The claimant maintained that she has difficulties processing verbal instructions, especially in noisy or busy environments, and has slower processing time when information is complex. This impacts her ability to follow instructions, particularly in work settings or group discussions.[100]In 2023, the claimant attended an appointment at Inverclyde Hospital in the Audiology department. She said that she was advised that she did not have any hearing loss. In a letter by her GP Dr G Marshall dated 14 November 2025 (321), he said: “…she likely has auditory processing disorder”. He went on to say: “Miss McAllister experiences severe anxiety, memory impairment, migraines, confusion and cognitive processing difficulties. She reports a noticeable cognitive decline since the age of 25 and is currently unable to work due to her symptoms. These difficulties began in February 2024 and have progressively worsened. Her treatment includes Sertraline, which has been increased from 50mg to 100mg, and most recently to 250mg, in response to her ongoing symptoms. Despite this, her difficulties remain significant and are expected to be long-term, lasting at least 12 months or more.”[101]Again, there is no clear evidence in this letter that the claimant suffers from APD, but Dr Marshall does say that she “likely” suffers from it.[102]In her evidence, the claimant said that she would have an earphone in one ear while in the office environment, as it would help her to listen to music and answer telephones and take notes. We were confused and uncertain as to the meaning of this evidence. Without having clear medical evidence to demonstrate precisely what effects would be anticipated with APD, it struck the Tribunal, as finders of fact, that if the claimant were struggling in a distracting and busy environment to interpret and absorb instructions, it would create greater difficulties for her if she were to be listening to music while trying to process information being given to her by others. It appears to us that this would be likely to be more, not less, distracting.[103]We also noted that the statement made by Dr Marshall came in November 2025, some 6 months after she was dismissed by the respondent from their employment, and accordingly we do not consider that it amounts to an authoritative statement that the claimant was, at the material time, suffering from a condition in APD which amounted to a disability within the meaning of the Act.[104]Accordingly, we are unable to be satisfied that the claimant was suffering from a disability within the meaning of section 6 of the 2010 Act by reason of APD at the material time. Anxiety and Depression[105]The claimant stated in her disability impact statement that she suffers from persistent worry and physical symptoms such as shaking, chest tightness and difficulty breathing, and relates this to stressful situations. She maintains that these symptoms have been present for more than 12 months and fluctuate in severity. She also stated that she experiences low mood, reduced motivation and difficulty completing tasks, as well as fatigue, tearfulness and emotional shutdowns which affect her day to day functioning.[106]On 7 March 2024, the claimant was seen by Dr Gillian Muir (329), who noted that she was awaiting an ADHD assessment. The remainder of the entry is partially redacted, but it was noted that on examination she was “bright, chatty, euthymic”.[107]On 23 October 2024, Ms McFarland noted that the claimant was “Sleeping ok, anxious ++… Overstimulated, feels burned out most days… Worries a lot about her children – anxiety related to this.” She arranged for a psychiatric referral, and prescribed Setraline Hydrochloride 100 mg each day, understood to be an anti-depressant medication. The claimant has been continued on this medication to the date of the Tribunal, in increasing doses.[108]On 16 May 2025, the day after she was dismissed, she contacted the practice to ask for help with her mental health. She said that she was recently dismissed from her job “after being off work due to severe anxiety and distress”, which she attributed directly to the circumstances at work.[109]The claimant persistently referred to having suffered a mental breakdown at work in May 2025 when she left the office. The note taken by the CPN on 13 May 2025 (320) indicated that her mother spoke initially on her behalf, and then that she had come on the line, when she was noted to be “bright and chatty”, but stressed that she was suffering from workplace stress and intended to take the remainder of the week off.[110]It was noted that on that evening the claimant attended a Bruce Springsteen concern in Manchester, and that while she insisted that she had mentioned this to the CPN, there is no record of it in the note.[111]While there are some contradictions in the claimant’s position – being bright and chatty on several occasions, for example – we have noted that the claimant has been seen since October 2024 with anxiety and was prescribed an anti-depressant, which remains in place for her. At the time of her dismissal, however, her condition of anxiety and depression does not appear to have lasted for more than 12 months, nor is it clear at the date of dismissal that it would do so. We know now that it has, since the evidence demonstrates that her prescription has been increased more than once since then, but it is important to view matters within the material period.[112]In our judgment, while this is a finely-balanced matter, the claimant was at the material time not a disabled person due to anxiety and depression, on the basis that it had not at that time lasted for more than 12 months, nor could it be said on the balance of probabilities that it was likely to do so. We cannot take subsequent events into consideration, and there is a lack of clarity about the claimant’s condition which causes us to conclude that it cannot be found that she was disabled as at 13 May 2025. She was said to be bright and chatty to the CPN, and was able to travel some distance to attend a Bruce Springsteen concert, on a day when she said she was having a breakdown. We consider that the claimant exaggerated the impact of events upon her at that date, and that she was not as seriously affected as she maintained in evidence.[113]We did, however, consider whether it might be said that the respondent was aware, or ought to have been aware, that the claimant was suffering from ADHD, APD or anxiety and depression during the course of her employment.[114]The claimant’s position on this was, in our view, slightly disingenuous. She maintained that she had clearly spoken to Lauren Henderson about her difficulties and therefore that it should have been obvious to the respondent that any problems with her performance or capability was related to the conditions upon which she relied. In our judgment, the evidence fell far short of this. The claimant said very little to Ms Henderson about her conditions; she may have referred to feeling that she was suffering from difficulties with concentration, and that she was being investigated for ADHD, but Ms Henderson cannot be expected to provide a diagnosis for the claimant which medical practitioners had not provided to her. In any event, it is curious that she spoke, in informal conversations, to Ms Henderson, but did not raise any formal issue with Mr Moncrieff or Ms Welch, or even with HR.[115]Further, as we have noted, the claimant specifically suggested that she struggled with certain tasks when completing her self-appraisal form, but made no reference to her view that these were caused by ADHD. We found this contradicted her position before us, that the reason why she found tasks monotonous and mundane was because of her cognitive difficulties, when she said nothing of the sort to her manager.[116]Finally, it is plain that her manager, Mr Moncrieff, was entirely unaware of the claimant’s asserted conditions, and we accepted his evidence that he knew nothing of these matters. He emerged from his evidence as a very straightforward and empathetic manager, and we saw no reason for him not to have taken such a suggestion into account if it had been raised with him. In any event, the claimant did not suggest she told him anything about her medical conditions.[117]As a result, it is our conclusion that the respondent did not know, nor could they reasonably have been expected to have known, that the claimant was suffering from a disability within the meaning of the 2010 Act, at the material time. Submissions[118]The parties each made submissions which the Tribunal carefully noted and took into account in our decision. While no summary of the submissions is provided here, reference to the submissions is made where appropriate in the decision section below.
The Relevant Law
[119]Section 123(1) of the Equality Act 2010 provides that: “Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three 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.”[120]Section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of the period.” Section 123(3)(B) provides that “failure to do something is to be treated as occurring when the person in question decided on it.”[121]We had reference to the well-known case of Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, in which the court confirmed that it is of importance to note that time limits are exercised strictly in employment and industrial cases. “When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[122]We also considered the important decision in British Coal Corporation v Keeble and Others [1997] IRLR 336, in which the EAT set out the factors which the Tribunal should consider in determining whether or not to exercise its discretion, namely the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued had cooperated with any requests for information, the promptness with which the claimant acted once she knew of the facts giving rise to the action and the steps taken by the claimant to obtain advice once she knew of the possibility of taking action.[123]We had regard to Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 as demonstrating that the discretion is intended to be broad and unfettered. The discretion is intended to be broad, with which the appellate courts should be slow to interfere (Jones v Secretary of State for Health and Social Care [2024] EAT 2). The respondent referred to the explanation, in paragraph 15 of Morgan, where it was said that “If time began to run on [the date an adjustment was requested], a claimant might be unfairly prejudiced. In particular, the claimant might reasonably believe that the employer was taking steps to seek to address the relevant disadvantage, when in fact the employer was doing nothing at all. If this situation continued for more than three months, by the time it became or should have become apparent to the claimant that the employer was in fact sitting on his hands, the primary time limit for bringing proceedings would already have expired.”[124]We also referred to Kingston-Upon-Hull City Council v Matuszowicz [2009] IRLR 288, as authority for the proposition that the failure to make adjustments is an omission, and not a continuing act. This decision was considered in Fernandes v Department for Work and Pensions [2023] EAT 114, by HHJ Beard. At paragraph 34, he stated: “In the absence of a finding that the employer has made a specific decision not to alleviate a disadvantage there must be judicial analysis to identify the notional date. It appears to me that this analysis must begin with the identification of the feature which causes disadvantage. This could be a PCP but could also be a physical feature or auxiliary aid. This will be a fact which dates the start of disadvantage. The next element to be considered is when it would be reasonable for the employer to have to take steps to alleviate the disadvantage. This is a factual finding and will vary. For instance, the date by which it would be reasonable to have to provide a chair could depend on whether a chair is already commercially available or the chair in question must be purpose built. That date would also amount to a finding of fact as to when a breach occurred. As such it would also assist the judge in identifying the notional date. The ET would then have to ask if there are facts which would allow it to conclude that the employer has acted inconsistently with the duty to make adjustments, if there are, then the notional date would arise at that point. Finally, if there is no inconsistent act, there will come a time when it would be reasonable for the employee, on the facts known to them, to conclude that the employer is not going to comply with the duty.”[125]At paragraph 37, he stated: “I conclude that the Employment Judge did misdirect himself as to the law when he indicated that it was the ET’s function to determine when the respondent might reasonably have been expected to make the adjustments as the start date for bringing the claim. It was appropriate for him to determine when the reasonable employer would have made the adjustment, however the ET would need to go on to consider when the reasonable employee, based on the facts known to the claimant, would conclude that the duty would not be complied with.”[126]Section 13(1) of the 2010 Act provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[127]The definition of disability is set out as follows in section 6(1) of the 2010 Act: “A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[128]Schedule 1 to the 2010 Act provides further clarification of the definition of disability, together with the Equality Act 2010 (Disability) Regulations 2010 (“the 2010 Regulations”). In addition, reference is made to the Equality and Human Rights Commission Code of Practice on Employment (2015) (“the Code”).[129]Schedule to the 2010 Act provides, in clause 2, that the effect of an impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.[130]The Code provides, at paragraph 2.8 to 2.20, guidance as to the determination of an individual’s condition as a disability. At paragraph 2.15, it is provided that “Substantial means more than minor or trivial.”[131]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if –a. A treats B unfavourably because of something arising in consequence of B’s disability, andb. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[132]Section 20 of the Equality Act 2010 sets out requirements which form part of the duty to make reasonable adjustments, and a person on whom that duty is imposed is to be known as A. The relevant sub-sections for the purposes of this case are sub-section (3) and (5). Sub-section (3): “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” Sub-section (5): “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”[133]Section 21 of the 2010 Act provides as follows: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person…”[134]Section 48(1) of the Employment Rights Act 1996 provides that an employee may present a complaint to an Employment Tribunal that she has been subjected to a detriment in contravention of a number of sections, including section 47C.[135]Section 47C provides that an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for a prescribed reason, which included time off under section 57A.[136]Section 57A provides for the entitlement of an employee to be permitted by his employer to take a reasonable time off during the employee’s working hours in order to take action which was necessary, for example, to provide assistance when a dependant falls ill, or to make arrangements for the provision of care for a dependant who is ill or injured; because of the unexpected disruption or termination of arrangements for the care of a dependant. Discussion and Decision[137]We addressed the List of Issues, but chose to do so in a slightly different order to the original List. 3. Did the claimant have a disability or disabilities as defined in section 6 of the Equality Act 2010 at the time of the events that the claim is about (namely April to May 2025) in respect of ADHD, Auditory Processing Disorder (APD), or Anxiety and Depression? The Tribunal will decide in relation to each assessed impairment:a. Did she have a physical or mental impairment, namely ADHD, APD and/or anxiety and depression?b. In each case, did it have a substantial adverse effect on her ability to carry out normal day-to-day activities?c. If not, did the claimant have medical treatment including medication or take other measures to treat or correct the impairment?d. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?e. Were the effects of the impairment long term? The Tribunal will decide: i. Did they last at least 12 months, or were they likely to last at least 12 months? ii. If not, were they likely to recur?[138]Standing the terms of paragraphs 90 to 117 above, we have concluded that the claimant did not have a disability or disabilities as defined in section 6 of the Equality Act 2010 at the material time, nor that the respondent knew or ought reasonably to have known that the claimant did have such a disability or disabilities.[139]Nevertheless we still proceed to determine the claims made on the basis of discrimination. Discrimination Arising from Disability (Section 15, Equality Act 2010) 4. Did the respondent treat the claimant unfavourably by dismissing her on 15 May 2025? 5. Did the following things arise in consequence of the claimant’s disabilities (principally in consequence of the claimant’s asserted anxiety):a. Claimant left work for ill health reasons on 13 May 2025 after speaking to Nicolle Horne. 6. Was the dismissal because of the claimant’s departure from work on 13 May 2025 and the surrounding circumstances? 7. Was the dismissal a proportionate means of achieving a legitimate aim? 8. The Tribunal will decide in particular: a. Was the treatment an appropriate and reasonably necessary way to achieve those aims?b. Could something less discriminatory have been done instead?c. How should the needs of the claimant and the respondent be balanced?[140]The respondent accepts that dismissal of the claimant was unfavourable treatment of her.[141]The claimant’s departure from work on 13 May 2025 is the subject of dispute between the parties. The claimant asserts that she was suffering from a mental health crisis, and had to leave the office; her submission was that she became distressed at work, and reported this to Nicolle Horne, in HR. She then contacted her CPN, with her mother, and reported how she was feeling at that time.[142]The respondent’s position is that whether the claimant left work on that date for mental health reasons is a matter for the Tribunal, but in their submission all she did on that day was to leave the office because she was apparently upset by the email (219) dated 12 May 2025 from Lauren Henderson listing a number of issues which required to be addressed by her and her colleague Ms Chappell. Ms Stein’s argument was that the terms of the email upset the claimant, rather than her mental health.[143]In addition, it is noted that the claimant, when speaking to the CPN, was recorded as having been bright and chatty; and also that she was able then to travel to and attend a Bruce Springsteen concert that evening.[144]The claimant’s behaviour, in our judgment, was inconsistent and difficult to understand. We did not conclude that the claimant was in a mental health crisis, with all due respect to her, as she was bright and chatty with the CPN, confirmed that it was her intention not to return to work that week and was able to attend a concert that evening.[145]She did not comply with the clear instruction given by the respondent to her prior to this that she had to report to her manager before leaving the office for any reason. She could very easily have gone to the office of Mr Moncrieff, which she was accustomed to visiting and where he was in attendance, to explain that she was unwell and unable to work, but she did not.[146]We considered that the claimant’s evidence about the breakdown of her relationship with Mr Moncrieff was exaggerated, and that she did not wish to give the impression apparent from her self-appraisal form that she was enthusiastic, happy and keen to participate in the respondent’s workplace if it suggested that her relationship with Mr Moncrieff was not as “toxic” as she suggested.[147]Further, we found the claimant’s insistence that the CPN had told her that it was reasonable for her to go to the concert that evening to be without foundation. There was a comprehensive note of that call in the claimant’s records, which makes no mention of any concert.[148]We were not persuaded that the claimant’s departure from work on that date was something arising in consequence of a disability; and in any event, we did not consider that the claimant was suffering from a disability at that time. The evidence of the claimant, and the surrounding circumstances, were too unclear to allow any conclusion to be drawn that the reason for her actions on that date were related to a disability.[149]We did, however, go on to consider whether or not the claimant’s dismissal was because of the claimant’s departure from work on 13 May and the surrounding circumstances.[150]The letter of dismissal (237) does refer to the claimant’s departure from work on that date, but in the context that it was abrupt and that she did not inform or seek permission from her manager. This followed a meeting on 9 January to discuss her absence from work following which she had received a written reminder of the importance of informing her line manager before leaving work for any reason.[151]That was not the only reason given in the letter of dismissal, however, as the claimant’s failure to address the performance issues which the respondent had raised with her. Further, the respondent raised the fact that there had been complaints raised about the amount of time which the claimant was spending on her mobile phone within the workplace.[152]Accordingly, we cannot find that the claimant’s dismissal was only because of the claimant’s departure from work on 13 May and the surrounding circumstances; it was related to a number of matters, and taken together the respondent decided to terminate the claimant’s employment. In our judgment, it was the failure to inform the claimant’s line manager of her departure from the office, in contravention of a previous instruction to her, which caused the respondent such concern as opposed to her departure itself.[153]It is therefore our conclusion that even had it been a dismissal arising in consequence of the claimant’s disability, it would have been a proportionate means of achieving a legitimate aim, namely to ensure that the performance of the company achieves an appropriate standard in order to maintain the quality of work produced and the relationships necessary with clients and supply chain companies. It was proportionate, having sought over a period of months to address the claimant’s performance without seeing a commensurate improvement.[154]It was notable, in our judgment, that the claimant declined to accept that the emails which were sent to her, including others, amounted to criticisms of her performance. There was no other interpretation which could be placed upon those emails. She may not have been the only one criticised, but a number of her responsibilities were clearly the subject of scrutiny. She simply failed to engage with those criticisms.[155]It was also telling that in her self-appraisal the claimant said that she found it difficult to concentrate on monotonous or mundane tasks which were in fact central to her role. She did not attribute her difficulties to any disability. Our conclusion, and in our view a reasonable conclusion for the respondent to reach, was that there were certain tasks the claimant found boring and therefore did not want to do. Her eye was on her ambition to take on different and more responsible roles, but the respondent, justifiably in our view, wished to encourage her to focus more and better on the roles which were central to her job.[156]It is our conclusion that the claimant’s claim under section 15 must therefore fail, and be dismissed. Reasonable Adjustments (Sections 20 & 21, Equality Act 2010) 9. Did the respondent know, or could they reasonably have been expected to know, that the claimant had the disabilities? If so, in each case, from what date? 10. A PCP is a provision, criterion or practice. Did the respondent have the following PCP in the period from around early April 2025:a. A requirement for the claimant to undertake a heavy workload composed of several different components. 11. Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s asserted disabilities of ADHD and anxiety and depression, in that the claimant found it hard to concentrate on the various different components to her workload, especially when working from home. 12. Did the respondent know or could they reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 13. What steps could have been taken to avoid the disadvantage? The claimant suggests: a. Reducing her workload or, at least not adding further tasks and duties to her workloadb. Not sending the claimant on site one day per week in May 2025. 14. Was it reasonable for the respondent to have taken those steps, and if so, by when? 15. Did the respondent fail to take those steps?[157]We have already found, above, that the respondent did not nor could they reasonably be expected to know that the claimant was at the material time a disabled person within the meaning of the Act.[158]We did consider whether or not the respondent imposed a requirement upon the claimant to undertake a heavy workload composed of several different components.[159]The claimant’s basic workload was unquestionably a busy and demanding one, as was the workload carried by the remainder of the team. The respondent requires to have staff who are in a position to respond quickly to demands both internal and external, and there are times when the office is busy.[160]However, the claimant made reference to a number of different components. She asserted that she assisted the directors with certain reports, but Mr Moncrieff her line manager said he was unaware that she was doing this; however, even if she were, it would only take half an hour each week.[161]The claimant asserted that she was involved in a charitable venture for the respondent. The respondent’s position was that she was invited to become involved, and agreed, but only required to attend on meeting on 3 March, which she did not lead or chair.[162]She agreed to attend site and did so on 3 occasions. Mr Moncrieff did not regard this as a significant issue, and took the view that she could work while on site if necessary.[163]The claimant referred to a marketing brochure. Mr Moncrieff considered that the claimant’s input was not as significant as she suggested, since it was done over a period of 9 weeks with Alistair Doughty.[164]It is our conclusion that the work which the claimant carried out outwith her core duties were components which she took on voluntarily, and because she wished to make progress in the organisation. In our judgment, the respondent did not impose any requirement in this area, but allowed the claimant to explore different duties for her own development and encouragement. She was however still required to attend to those duties she regarded as mundane but which were central to her role.[165]We did not conclude, therefore, that the respondent imposed the PCP which the claimant alleged.[166]It is therefore our judgment that the respondent did not fail to make reasonable adjustments in respect of the PCP, which was not in place, and in any event, we reiterate that our conclusion is that the claimant was not a disabled person within the meaning of the Act at the material time, nor that the respondent knew or ought reasonably have been taken to know that she was disabled.[167]This claim therefore fails, and is dismissed. Direct Sex Discrimination (Section 13, Equality Act 2010) 16. Did the respondent do the following things:a. On 25 April 2025, did Stuart Moncrieff dismiss the claimant’s earlier complaints raised with him on 7 April 2025 about the conduct of Zack Devlin to her during a phone call that day when the claimant alleged to Mr Moncrieff that Zack Devlin had been aggressive and cut her off when speaking. Did Mr Moncrieff tell the claimant on 25 April that he had discussed the matter with Martin Bell in the meantime and that Mr Bell had complained about the claimant raising issues about Mr Devlin, a senior employee, and suggested that the claimant had been disrespectful in doing so?b. Did the respondent decline thereafter to look any further into the claimant’s complaint about Mr Devlin and did Mr Moncrieff imply to the claimant that there would be negative repercussions for her, were she to continue to complain about Mr Devlin? 17. If so, was that less favourable treatment because of the claimant’s sex? The claimant did not identify any direct comparator but indicated that she proposed leading evidence of an earlier incident in October 2024 in support of her assertion that the respondent was more dismissive of her complaint because she was female than it would have been of a complaint by a male colleague. She said that in October 2024, she and a female colleague, Lauren, had complained about their male colleague, Angus Park, who she alleges had made a racial remark. She says that she will give evidence that she and Lauren were told by management that they were being disrespectful to Mr Park. The claimant clarified that she does not complain about this as an act of sex discrimination of itself but that she wishes to lead evidence of this incident to support an inference of sex discrimination arising from the allegations in April 2025.[168]We confess that we found the claimant’s position on the issue arising in October 2024 to be unclear. She did not rely upon these allegations relating to Mr Park as founding any claim before the Tribunal. As a result, they seem to have been raised as background to support an inference of sex discrimination in April 2025. However, they related to a different person, and it is not clear why the claimant considered that this was a comparable situation since the suggestion seemed to be that Mr Park was guilty of making a “racial” remark. We did not hear detailed evidence about this from the claimant and nor did we hear evidence from the respondent about it, and Mr Park was not called as a witness. We make no findings about this matter.[169]With regard to the issue relating to Zach Devlin, the evidence demonstrated that both Mr Devlin and the claimant raised complaints about the other having been disrespectful and rude towards themselves. No action was taken against either of them, but Mr Moncrieff spoke to both of them, and also to some colleagues. He reached the conclusion that it was more likely, given what was said by those colleagues, that the claimant had been abusive towards Mr Devlin, but chose simply to emphasise to both of them that it was necessary to be respectful in all communications. There is no evidence that Mr Moncrieff threatened the claimant with further repercussions if she was not respectful to Mr Devlin.[170]In our judgment, this claim has no basis. The respondent did look into the claimant’s complaints about Mr Devlin, and also into Mr Devlin’s complaints about her. The respondent had evidence to the effect that the claimant had conducted herself disrespectfully and rudely towards Mr Devlin, but took no action against her. They took no action against Mr Devlin because there was no evidence of wrongdoing on his part. The claimant was plainly irritated that the respondent did not act on her complaint as she wished, but in our judgment they were justified in not doing so.[171]In any event, there is no evidence that the difference in treatment, if there was any, was on the grounds of sex. We do not consider that the claimant’s evidence has shifted the burden of proof here, primarily because if there was a difference in treatment, it was on the basis that the claimant was dealt with more leniently than she might have for having acted as she did towards Mr Devlin, whereas Mr Devlin’s complaint was not taken any further.[172]Further, there is no basis for the claimant’s suggestion that Mr Moncrieff threatened her or implied to her that she would be disciplined if she took the matter further.[173]Accordingly, it is our judgment that the claimant’s claim of sex discrimination must fail, and it is therefore dismissed. Detriment for Time Off for Dependants (Sections 47C, 48(1) and 57A of the Employment Rights Act 1996) 18. Did the respondent do the following:a. Did Mr Moncrieff in December 2024 initially refuse the claimant’s request to take time off to look after her children on or around 12 and 13 December 2024 in circumstances where the claimant’s mother (her usual childcare provider) was unable to do so because of an important medical procedure?b. Did Mr Moncrieff refuse to allow the claimant to work from home on the 2 days in question to look after her children?c. Did Mr Moncrieff tell the claimant that if she did not come into the office that day, she would be liable to disciplinary action or words to that effect?d. Did Alison, an HR Adviser for the respondent, have a meeting with the claimant on 10 January 2025 when she subjected the claimant’s attendance record to undue scrutiny and unfair criticism including alleging that 4 days were treated as absences when, in fact, the claimant had worked from home on those dates by agreement with Mr Moncrieff?e. At the meeting on 10 January 2025, did Alison make remarks to the effect that the claimant should send her children to nursery even when they had a cold, in effect belittling the more serious illnesses the claimant’s children had actually had when the claimant had previously kept them off nursery?f. In or around February or March 2025, when the claimant asked to leave to attend a doctor’s appointment, was Mr Moncrieff unfairly grudging or unaccommodating? Did he make a comment like “I can’t stop you” but imply that her departure was frowned upon? 19. By doing these things or any of them, did the respondent subject the claimant to a detriment? 20. If so, was it done on the ground that the claimant had taken a reasonable amount of time off during her working hours on around 12 and 13 December 2024 because of the unexpected disruption of arrangements for care of a dependent or dependents (her children) or to provide assistance to a dependent (her mother) when her mother had fallen ill (i.e. a ground under section 57A of the Employment Rights Act 1996).[174]Mr Moncrieff had no memory of ever speaking to the claimant about her wish to take time off on 12 and 13 December 2024, and we cannot conclude that he initially refused the claimant’s request to take time off on those dates.[175]We consider that the claimant’s position on this was quite opaque. It is clear that on 10 December she emailed Ms Woodhead to advise that she could not work on 12 or 13 December, and that she would take those two days unpaid. That followed a conversation in which Ms Woodhead advised her that she could not work at home on those dates. The claimant seemed to suggest in evidence that she had not asked to work at home on those dates, as she could not work when her children were at home. However, on the evidence of the email preview boxes (119) which the claimant referred to, the heading of her email to Mr Moncrieff on 9 December 2024 was “WFH”. WFH means working from home.[176]In our judgment, the claimant plainly asked the respondent for permission to work from home, but this was refused, on the basis that she had made it clear that she would be with her children, and on her own account this meant that she could not work from home. The claimant’s position before us was therefore quite contradictory, and indeed unsatisfactory. When she spoke to Ms Woodhead, this was explained to her and she was told that she could have the time off, but would require to take unpaid leave. She did so.[177]What was refused was not a request to take time off to look after her children, but a request to work from home while her children needed to be cared for, a quite different request. When she did ask for time off, she was granted it.[178]Mr Moncrieff did not refuse any request on 9 or 10 December as it appears he was not involved. However, the respondent did, in our view quite reasonably, refuse the claimant’s request to work from home to look after her children. That statement is inherently contradictory: either she would work at home or she would look after her children. On her own account, she could not do both.[179]The respondent was not in breach of section 57A of the Employment Rights Act 1996 as they did grant her request to have time off to look after her children. They did not refuse that request, but a request to work at home.[180]We did not find that Mr Moncrieff told the claimant that if she did not attend the office she would be subject to disciplinary action. There was no evidence on which we could safely base such a finding.[181]In our judgment, Ms Welch acted reasonably by convening an attendance review meeting in order to discuss with the claimant her absence record. The claimant did not object to this at the time, and participated fully in the discussion. Ms Welch took no formal action thereafter.[182]We did not conclude that the claimant’s attendance record was subjected to undue scrutiny or unfair criticism. An employer is entitled to discuss with their employee a number of absences from the office, and to seek to ensure that support is in place if required. Ms Welch acknowledged in her email following the meeting that they understood that she was undergoing some challenges in her personal life, but that the respondent required to ensure that her attendance met their standards. In our judgment, this was legitimate in all the circumstances.[183]The meeting about attendance was conducted on an informal basis. Ms Welch’s evidence was that following the meeting there was an improvement in the claimant’s attendance.[184]It was not put to Ms Welch that she had told the claimant to send her children to nursery even if they had a cold. The claimant gave evidence to this effect, but Ms Welch was not asked about it. As a result, we are unable to draw any conclusion to the effect that this was said.[185]There was no evidence to support the allegation that on one occasion Mr Moncrieff told the claimant that she could attend a hospital appointment, but did so grudgingly.[186]In our judgment, these actions did not amount to detriments visited upon the claimant and certainly not because the claimant had asked for time off to care for dependants. The respondent acted reasonably in fixing an attendance review meeting on an informal basis, following which no action was taken against the claimant. The claimant did not ask for time off to care for dependants initially, but requested to work from home. When she did ask for time off, it was granted.[187]The suggestion that Mr Moncrieff grudgingly allowed the claimant time off for an appointment does not, in our view, amount to a detriment, and there is insufficient evidence upon which to conclude that this happened.[188]As a result, it is our judgment that the claimant was not subjected to detriments as a result of having asked for time off to care for dependants, and therefore this claim fails, and is dismissed. Time Limits 1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 28 February 2025 may not have been brought in time. 2. Was the detriment (time off for dependants) complaint made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of?b. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus EC extension) of the last one?c. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?d. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[189]On the basis that the claim relating to detriments (time off for dependants) has been dismissed on the merits, it is unnecessary for us to address the question of time limits in this case.[190]It is therefore our conclusion that the claimant’s claims all fail, and are dismissed.