Mrs K Rooney v The Co-Operative Group Ltd: 8001868/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001868/2024Venue DundeeHearing 28, 29, 30 April; 1 & 2 May; 16 & 17 June 2025
Between
Mrs K RooneyClaimantThe Co-operative Group LtdRespondent
Before
Employment Judge R McPhersonMs A Biba for respondentLitigation Executive for respondentDate 18 September 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claimant’s claims in terms of section 13 (direct disability discrimination), section 19 (indirect sex discrimination) and sections 20 & 21 (reasonable adjustments due to disability) of the Equality Act 2010 do not succeed and are dismissed.
REASONS
[1]The claimant appeared in person. The respondent was represented by Ms Biba, Litigation Executive.[2]The claimant’s ET1 was presented on Tuesday 12 November 2024 against the respondent company following ACAS Early Conciliation (ACAS certificate, identifying receipt of EC notification on Wednesday 18 September 2024 and the issue of the ACAS Certificate on Wednesday 30 October 2024).[3]On Wednesday, 29 January 2025, a case management Preliminary hearing by CVP took place at which the claimant attended, and the respondent was represented. Matters were discussed, and dates for the Final Hearing were agreed. A PH Note was issued 29 January 2025 (the January 2025 PH Note) reflecting the discussion, setting out: Orders, including that: 2. … the respondent provide updated Particulars of Response and will write to the Tribunal and claimant setting out in relation to impairment relied upon whether disability is conceded and if it is not the reasons why and “Whether it is conceded that the respondents knew or ought to have known that the claimant was a disable d person at the material time, and if it is not conceded, the reasons why” 3. … the parties shall provide copies to each other of:a. Any document they intend to rely upon at the final hearing.b. Any documents properly requested by the other party: which are relevant to the issues to be determined at the final hearing…[6]The case will be decided at a final hearing … from 28 to 2 May 2025…[9]The January 2025 PH Note itself set out: The complaints 4. … the claimant brings complaints of indirect sex discrimination, direct disability discrimination and failure to make reasonable adjustments. The complaints brought were discussed in detail at the preliminary hearing and the claiamnt provided clarification of the complaints being brought. From that discussion the attached list of issues has been prepared. 5. It was noted that the claimant has a separate complaint …as apart of a multiple, unfair dismissal and a protective award.” Disability status 7. The claimant claims that she was, at the relevant time, a disabled person in terms of s 6 EqA, as a result of Autism Spectrum Condition 8. The respondent does not, at this stage, accept that the claimant was a disabled person at the relevant time, or that they had knowledge of this. …
The complaints
[10]It was agreed that, if they remain in dispute, disability status and knowledge will be determined at the final hearing. Issues to be Determined at the Final Hearing[11]Attached in the schedule to this note is a list of issues, reflecting the Tribunal’s understanding of the complaints brought, following review of the claim and the discussion at the preliminary hearing.[12]The parties should consider this list carefully to make sure this accurately records the full extend of the issues to be determined. If it does not the Tribunal should be advised within 14 days of this note being sent to the parties, copying said communication to the other party. Arrangements for Final Hearing[18]The claimant intends to give evidence on her own behalf at the final hearing and call 2 further witnesses: Jennifer Whittle and Jane Green[19]The respondent intends to call up to 7 witnesses: one in respect of each role applied for, as well as the grievance and appeal managers.[20]It is the responsibility of the party calling the witnesses to ensure that they are available to attend the final hearing at the appropriate time. Schedule to Note of Preliminary Hearing held on 29 January List of Issues 1. Disability Status – s 6 Equality Act (EqA) – [If not conceded by the respondent] 1.1 Was the claimant a disabled person in accordance with the EqA at all relevant times because of Autism Spectrum Disorder. 2. Direct Discrimination – s13 Equality Act 20102.1 Did the respondent subject the claimant to less favourable treatment (i.e. did the respondent treat the claimant less favourably than it treated or would have treated others (‘comparators’) in not materially different circumstances) by failing to offer her an interview for 4 roles which she applied for? The claimant relies on hypothetical comparators..2.2 If so, was this because the claimant is a disabled person? 3. Reasonable Adjustments - s20 & 21 Equality Act 20103.1 The provision, criteria or practices ‘PCPs’ relied on by the claimant are:3.2 Did the respondent have a PCP of informing individuals that their job is at risk of redundancy in a scripted Teams call, with multiple attendees and no opportunity for follow-up discussion or clarification?3.3 If so, did that PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that she processes communications differently and required follow-up support or contact, so that she could properly process and understand the implications of what was said on the call.3.4 If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage?3.5 If so, would the steps identified by the claimant, namely providing follow-up support, or details of someone she could contact for further discussion and clarification have alleviated the identified disadvantage?3.6 If so, would it have been reasonable for the respondent to have taken that step at any relevant time and did they fail to do so? 4. Indirect Sex Discrimination s19 EqA4.1 A ‘PCP’ is a provision, criterion or practice. Did the respondent have a PCP that interviewees should provide examples of relevant experience within the last 2 years?4.2 If so, did the respondent apply the PCP to the claimant?4.3 Did the respondent apply (or would the respondent have applied) the PCP to men?4.4 Did the PCP put women at one or more particular disadvantages, when compared with men, as they are more likely to have taken, or be on, a career break?4.5 Did the PCP put the claimant at that/those disadvantage at any relevant time4.6 If so, has the respondent shown the PCP to be a proportionate means of achieving a legitimate aim? [Respondent to confirm, to the claimant and the Tribunal, any PCP relied upon on or before 26 February 2025]. 4. Broadly, the Issues for the Tribunal about those complaints relied upon by the claimant are 1. s13 Equality Act 2010 (EA 2010) direct disability discrimination; and 2. ss20 & 21 EA 2010 reasonable adjustment in relation to disability; and 3. s19 EA 2010 indirect sex discrimination 5. No other complaints are made or insisted upon in this case. Parties have identified a separate multi-party claim regarding the matters arising from the admitted redundancy. 6. On 3 February 2025, a Notice of Hearing was issued to the parties. 7. On 26 February 2025, the respondent representative sent an email (the respondent's limited concession February 2025 email along with Amended Particulars of Response via DropBox) to the claimant and Tribunal in response to the Tribunal order setting out that “the Respondent accepts that the Claimant satisfies the definition of disability for the purposes of the condition of Autism… However… The respondent maintains that it did not know that the Claimant was ‘disabled” for these purposes at that time. We reserve the right to ask some questions of the Claimant in relation to the extent of her condition, insofar as she claims it affects her. This would be in relation to a line of questions regarding a potential remedy if an award is made in relation to Injury to Feelings.” 8. The respondent Amended Particulars of Response, in that context, set out at para 41: “The respondent confirms it was aware that the claimant was autistic but the Claimant did not require any adjustments while she was delivering her Member Pioneer role.” 9. In advance of the hearing, there was also an exchange of views on remote attendance of witnesses, which is referred to in the Tribunal discussion below. 10. At the outset of the hearing, parties agreed to co-operate in accordance with the overriding objective on timetabling of witnesses, including for those attending remotely. 11. For the claimant, her witnesses were Jennifer Whittle, a former Member Pioneer and Jane Green, a former Member Pioneer and lead claimant in the multiple Unfair Dismissal claim. 12. For the respondent, witnesses were Stephanie Buckingham, Talent Acquisition Advisor; Sarah Darkins, currently on maternity leave Talent Acquisition Advisor; Philip Hargreaves, Markdown Manager; Alan Harrison, Macros Space Manager; Andrew Hay Head of Operations, Legal and Secretariat; Camilla Keedle, Culture and Colleague Experience Team; Chris Lawson Capacity Planning Manager, Jennifer Oldroyd Commercial Range Manager, Hals Williamson, Head of Category & Strategic Supplier Management. While the claimant and her witness attended in person, some of the respondent witnesses attended remotely. 13. Towards the conclusion of the first week of the evidential hearing, the respondent was subject to a cyber-attack which impacted access to their personnel system (MyHR). On recommencing the hearing, the respondent provided an extract of documentation which they relied upon. Findings of fact 14. The respondent is the seventh largest retailer in the UK, competing with other retailers. 15. The respondent created the role of Member Pioneers as non-retail respondent staff, commonly working from home in the geographical area served by a local respondent Co-op shop, carrying out (broadly) 4 hours of paid (at minimum wage) non-retail work per week to support their local communities and the co-operative organisation. 16. On 1 August 2022, claimants’ employment as a respondent Member Pioneer commenced and was provided with a Statement of Particulars. The claimant was paid monthly; her monthly earnings in July 2024 were £354.00 over 16 hours, which reflected her taking on further Member Pioneer posts on a temporary basis. Additional benefits included a 30% store discount. 17. At the material time, the respondent operated a number of policies, including. 1. Co-op Redundancy Agreement 2019; 2. Co-op Inclusion and Diversity Policy May 2021; 3. Co-op Grievance Policy June 2021; 4. Co-op Internal Mobility Policy July 2022; 5. Co-op Bullying & Harassment and Discrimination Policy September 2022; 6. Co-op Support Collective Agreement April 2023, Appendix 4 provided that “Member Pioneers are considered ‘front line’ colleagues, but are covered by this agreement” subject to exceptions in relation to Pay, Working Hours & Days, Overtime, Sick Pay, Bonus and Notice periods; 7. Co-op Returning after Redundancy Policy, November 2023; and 8. Co-op Support Collective Agreement April 2024, Appendix 4 provided that “Member Pioneers are considered ‘front line’ colleagues, but are covered by this agreement” subject to exceptions in relation to Pay, Working Hours & Days, Overtime, Sick Pay, Bonus and Notice periods. 18. The respondent also publishes additional material online, including the: 1. Work Experience Guide July 2023, broadly designed around work experience for people to learn about work; 2. Disability Confident Scheme, which sets out that the respondent will “Always offer an interview to disabled candidates if they meet the minimum criteria for a job” and will make reasonable adjustments; 3. Disability redeployment policy, which extends to 4 pages, on the first page under the heading: “Crucial Bits What is redeployment. Redeployment could be an option for you if your disability means that you can’t carry out your current job. This means that we’ll… In the second paragraph, there is a visible link to a separate policy: “see our Guide to Reasonable Adjustment for more information about workplace adjustments. Well talk to you about whether you’re interested in redeployment and if so, what kind of roles you might be suitable for…” 3. The Guide to Reasonable Adjustment.” 19. Further, at the material time, the respondent followed a standard approach for the relevant recruitment processes applied when they were required to recruit staff to carry out a role. This involves a senior relevant Team Leader liaising with the respondent’s Talent Acquisition Team to adjust the standard wording “advert” to reflect the identification of the respondent's requirements. Potential candidates applied through a Portal, which required them to complete screening questions that could also be adjusted. 20. In February 2024, the claimant received a diagnosis of autism spectrum disorder.
Findings of fact
[21]The respondent HR system (MyHR) sets out a record of information showing as a screenshot across 9 columns, the first 3 identifying the staff number, name, and date of birth; and for the claimant set out Enterprise Hire date Termination Date Creation Date Do you have a disability or long term health condition If you have answered “other”, or have more than one disability, please provide: Leavers 01/08/202229/08/202428/05/2022 Other ADHD, Autism 1[22]Creation date in the MYHR record is the date of pre-employment screening. The system does not provide information on when any information is updated, including by the employee.[23]On 16 April 2024, the respondent published online Colleague Interview Guide RE CM for Space Insights Analyst.[24]On 5 June 2024: 1. The respondent announced via a scripted announcement that all Member Pioneer roles (within the respondent organisation) were at risk of redundancy during a remote communication. Having regard to the List of Issues and parties having confirmed (as also confirmed at the case management PH Note paragraph 5) that matters around that are the subject of a separate multi-claimant unfair dismissal and protective award Tribunal claim, which is proceeding in London, the Tribunal declines to make findings of fact beyond the List of Issues issued for this hearing. 2. The respondent published Colleague Information pack re Consultation Period, and 3. Manager Briefing Pack re Consultation period, 4. Issued email to the claimant re announcement follow One-to-One.[25]On 6 June 2024 at 8.43 pm Ms Camilla Keedle as appointed One-to-One manager emailed the claimant (subject heading of email being Announcement follow on 121) “I’m reaching out to you as consultation manager to offer 121 to discuss the proposals in yesterday’s all colleagues briefing and what this means for you and your role”, offering an initial One-to-One between 6 and 23 June; a second One -to-One “to check in if needed and answer any further questions” between 24 June and 20 July; and a “Final Consultation 121- to confirm various outcomes” between 21 July and 28 July. It was confirmed that the claimant could bring a colleague or trade union representative.[26]On 11 June 2024, the claimant attended the first consultation meeting with the appointed One-to-One consultation manager, Camilla Keedle, who followed up with an email at 1.57 pm with a summary of the discussion, setting out “Please let me know if I haven’t captured any of the points discussed.”[27]On 25 June 2024, the claimant attended a second consultation meeting with One-to-One consultation manager Camilla Keedle.[28]In June 2024, the respondent, which operates retail shops across the UK in a competitive commercial environment, identified a commercial business need to recruit individuals into five hybrid roles operating from the respondent's head office in Manchester, specifically Assistant Markdown Analyst, Business Process Partner, Capacity Planning Administrator, Range Analyst and Space Insight Analyst and placed advertisements for those roles.[29]On 26 June 2024, the claimant applied for the five respondent-advertised roles via the respondent's Oracle jobs Portal, deploying the same CV being Assistant Markdown Analyst role, Business Process Partner role, Capacity Planning Administrator role, Range Analyst role and Space Insight Analyst role,[30]The advert for the Assistant Markdown Analyst described that it was based in Manchester city centre and included: “in this role you’ll work in a hybrid way splitting your time between home and the office. #StepUp- this role is a great opportunity for colleagues in front line and entry level support centre roles to use their transferable skills and progress their career at Co-op. We're looking for an assistant markdowns analyst to join our supply chain team you support the wider markdowns team to manage the exit of stoke from Rangers in our stores and support the administration in the various markdowns process is this rule is a great development opportunity with the chance to have exposure to the wider business and receiving training on our systems including SCP ultimately helping you kickstart your career within Co-op supply chain What you’ll do• Complete admin tasks that support the various markdown processes• Support the wider markdowns team to manage the exit of stock from ranges in our stores• Be trained on our systems, including training on SAP• Help facilitate meetings within the internal team• Have a keen eye for detail when pulling reports and data for the team This role would suit people who have• Experience working with Microsoft Excel, with the ability to learn and understand new systems.• Excellent problem solving skills.• Strong organisational skills with a keen attention to detail• Good communication skills, with the ability to build strong relationships.[31]The advert for the Business Process Partner (page 326) role described that it was based in Manchester City, hybrid and included that: “We're looking for two Business Process Partners (BPP) to join our established partnering team within our wider Co-op Business Services (CBS) organisation. CBS is made up of a number of diverse teams dedicated to delivering high-quality, reliable and cost-effective business services across our Co-op. You’ll play a key role in helping CBS to support and realise our group vision of cooperating to build more value for member-owners every day. We’ll look to you to be part of a retail team offering a service to our ECC SAP Solution to our colleagues, making sure our integrated solutions meet our business requirements. Through service partnering, you’ll link all the relevant areas of the business and look to continuously improve the Businesses SAP End to End processes. If you have an analytical approach and an awareness of end-to-end processes, this is a great opportunity to develop your skills. What you’ll do:• Develop and optimise end-to-end business processes, supported by business subject matter experts, BPP's Process Analysts and Technical Specialists• Partner with senior leaders on their teams to make sure initiatives needing OC support are understood and fed into the triage process to support roadmap planning and prioritisation …• Partner with teams of business analysts and subject matter specialists to deliver improvements• Drive knowledge transfer between the OC and the business areas, acting as the point of contact for end users.• Represent the team on large transformation programmes, providing the relevant input to process or solution design decisions and ensuring alignment with the OC road map. …• Provide advice on specific training needs and the development of training materials.• Identify risks and issues, taking ownership of delivering solutions and mitigation. This role would suit people who have• Operational understanding with the ability to link processes and impacts.• Great communication skills with the ability to engage and present technical and non-technical audiences in a compelling way• Good influencing skills, with the ability to constructively challenge when necessary• A talent for building positive relationships with partners at all levels across the business• An interest in Retail and processes and how they impact our operational business.[32]The advert for the Capacity Planning Administrator role (described as Assistant Capacity Planner in the advert) (page 322) described it as being based in Manchester city centre and included “in this role you’ll work in a hybrid way splitting your time between home and the office. You’ll be expected to work early shift for this role, the latest start time would be 8 am #StepUp- this role is a great opportunity for colleagues in front line and entry level support centre roles to use their transferrable skills and progress their career at Co-op. We’re looking for a capacity planning administrator to join our supply team you provide admin support for our capacity planners pulling reports in gathering data to support decision making within the team this is a great development opportunity with the chance to have exposure to the wider team and receiving training on our systems including SAP access ultimately helping you kick Scott art your career within the Co-op’s Supply Chain. What you’ll do Support our capacity planners by providing admin support Pull data and prepare reports for our systems Work closely with planners to understand and build your own working relationships with our depots Gather information that will support discussions around labour planning for our depots Help to facilitate meetings for the internal team Cover the rule of capacity planner when needed to support your development Manage the critical path for the year in term of activity that would impact deeper volumes This role would suit people who have Experience working with Microsoft Excel and Access, with the ability to learn and understand new systems Excellent problem-solving skills and ability to make fast decisions Strong organisational skills and keen attention to detail Brilliant communication skills with the ability to build strong relationships internally and externally The confidence to lead discussions and meetings with external partners.”[33]The advert for the Range Analyst role described that it was based in Manchester city centre and included: “in this role you’ll work in a hybrid way splitting your time between home and coming into the office at least once a week Fixed term contract until February 2025 We're looking for a Range Analyst to join our Range Optimisation team to support and deliver strategic changes across our different Co-op stores. You’ll continuously improve the product assortments for our customers now and in the future. In this role you’ll work collaboratively with a number of internal partners, using a variety of data and insights as well as key strategic inputs to deliver a complete range assortment. We’ll look to you to balance customer needs and commercial requirements, as well as making sure our ranges are right for our store colleagues. You'll be trained to use our tools which will help you to analyse sales and customer data and deliver category range plans. You'll be part of his supportive and collaborative team, at the heart of delivering Co-op’s strategic plans What you’ll do• Be trained to set up and deliver range reviews using our ranging software• Work with the Commercial category teams to understand the range strategy and translate this, using logic formulas, to direct where products go.• Analyse large amounts of sales and consumer data, reviewing and presenting back the results to colleagues ….• Share outputs with buyers communicating the changes you've made and their impact …. This role would suit people who have• Strong communication skills with the ability to engage with partners from all levels and influence decision making.• A collaborative approach to work, with the talent for building positive relationships with colleagues across the business• Great analytical skills, with experience of working with and interpreting large data sets• Commercial understanding with the ability to use data and insights to drive decision making and continuously improve processes• Great IT skills including, strong Microsoft Excel skills with the ability to produce reports and use a variety of formulas and pivot tables and the ability to learn new software.”[34]The advert for the Space Insight Analyst role described that it was based in Manchester city centre and included: “in this role you’ll work in a hybrid way splitting your time between home and coming into the office. We're looking for a Space Insight Analyst to join us and help shape the format and space rules that fit our real estate. Analysing lots of data, you’ll identify the best way to allocate product category space aligned to each store’s format customer and performance metrics. If you can bring the expert analysis, planning and relationship management skills we’re after, you'll have a unique opportunity to learn, grow and build a career with a business that always puts people at the heart of its strategy What you’ll do• Work in projects that support wider business objectives where category space can play a part, enabling us to put the right products in front of the right customers.• Help build the category space allocation rules by format for refits and new stores, taking into account our business strategy, customer and performance metrics.• Implement the category space allocation rules for refits and new stores, adapting for local trading patterns, customer behaviour and influencing different teams as we go along. …• Review the performance and effectiveness of store layouts post-refit /build This role would suit people who have• Great analytical skills with experience working with and interpreting large and complex data sets.• Intermediate Excel skills; you're confident using different formulas, statistical tools and graphics.• The ability to present and translate data and insight to non-technical audiences in a simple and clear way.• Great communication skills, with a talent for building meaningful relationships with a wide range of partners and leaders across the business• Great organisational skills and the ability to manage your own workload in a fast-paced environment.• Experience of working to deadlines and tracking your performance.[35]The responsibilities for each role applied for varied, although each of significant impact to the respondent operations, while it is not considered necessary to set out details for each, the following summaries are set out[36]For the Range Analyst role, the respondent operates around 2,500 shops with around 9 billion in sales; each shop may have a slightly different range of products. The respondent utilises a substantial amount of data to determine which milk or other grocery product to place, employing Excel to process 1 million rows of raw data and produce insights that interpret the data. The role has a significant commercial impact.[37]A Space Insight Analyst role within the respondent utilises data to analyse the best use of selling space within a shop. A shop within the centre of Glasgow is different from one within the suburbs of Dundee, they gather data on space (in shop) and waste (unsold product) running that through the respondent statistical models across the whole of the Co-op estate taking live data and deriving meaningful information with solutions, operating using Excel spreadsheet needing confidence in use of Excel formula and graphics to distil and exhibit to people with less skill in interpreting data, while working within deadlines.[38]Assistant Capacity Planner was a new role created after review of the whole supply chain and was designed to allow for succession planning within the teams and working with the supply chain, managing scheduled deliveries into each store and purchase orders, avoiding risks of 50 trucks arriving at a depot at once and operates as a link between the supplier and the 13 depot the role includes the use of both Excel to a high level and Access database skills to provide daily forecasting for 10,000s of products across the stores with 1000s of suppliers. While initially described as an Administrator, the title was changed to Assistant Capacity Planner to reflect the role more accurately.[39]Markdown Analyst role has a key role in analysing data. Markdowns are products where the price is reduced for various reasons, including seasonal variation, which may result in a loss of profit. The role focuses on minimising costs, which can be in millions of pounds. Data is taken to dozens of meetings, and the role is considered pivotal to the consciousness of the business[40]For each application, along with the submission of the claimant's June 2024 CV, the claimant completed Screening Questions created via the respondent Talent Acquisition and Development Team for roles with additional questions added reflecting matters identified as relevant for that role, with points allocated on the basis of responses. The standard questions for the Assistant Markdown Analyst role, Capacity Planning Administrator role, Range Analyst role and Space Insight Analyst role, with claimant response and points allocated:a. Is your job currently at risk because of redundancy or redeployment (if you are a contractor/ contingent worker, please select No) Yes – 100 pointsb. Do you have any upcoming holidays Noc. If you have a disability and would like your application to be considered under the Disability Confident Scheme, please select below 200 pointsd. If you’re successful, will the role you’re applying to be an additional job for you at Co-op 0 points[41]For the Range Analyst role, the Screening Questions also included (with claimant response and points allocated): We’re now working in a hybrid way, with colleagues dividing their time between home/remote working and the office. This is a hybrid role where you will be expected to travel to our Manchester office when needed at your expense. Can you commit to this? Yes 10 points Do you have experience delivering projects end to end? Yes 10 points[42]For the Business Process Partner role, the Screening Questions also included (with claimant response and points allocated) Is your job currently at risk because of redundancy or redeployment (if you are a contractor/ contingent worker, please select No) Yes – 100 points Do you have any upcoming holidays No If you have a disability and would like your application to be considered under the Disability Confident Scheme, please select below 200 points If you’re successful, will the role you’re applying to be an additional job for you at Co-op 0 points This role would have exposure to our CEO & CFO, so to be successful in this role you would need to have strong communication & stakeholder skills. DO you have strong communication and stakeholder skills with the ability to influence at all levels? Yes 200 Points Do you have experience of challenging, influencing and managing relationships with stakeholders at various levels? Yes 10 Points Do you have experience of working with SAP No O points Do you have a high level of organisation, adaptability and attention to detail Yes 10 Points Do you have strong analytical experience and the ability to translate data into meaningful insight to inform key stakeholders? Yes 10 points[43]The claimant made each application deploying for each the same CV (the June 2024 CV), which extended to 6 pages, setting out at the top of page 1, a Personal Statement extending to 3 paragraphs that the claimant is: “A conscientious and professional person with extensive experience in Engineering Supervision, Training and Management, currently seeking a full-time position after a break in career due to family responsibilities. A highly organised and efficient individual, whose thorough and precise approach to projects has yielded excellent results. I am an Autistic Adult and as such I process the world a little differently to others. I thrive on working with data and have a great attention for detail. I am focused and driven with tasks, and I have always excelled roles requiring these skills.” (The third paragraph is referred to hereafter as the June 2024 CV Autism Impact Explanatory Statement.)[44]The June 2024 CV Autism Explanatory Statement and the June 2024 CV itself did not propose that any specific adjustments were appropriate in relation to the claimant’s identification that she is an autistic adult, and did not give notice of issues which are set out in the claimant's 2 page Disability Impact Statement provided to the respondent as directed at the January 2025 case management Preliminary Hearing.[45]The June 2024 CV listed (by bullet point) 14 key skills on page 1, including o … o o Meticulous attention to detail o Proficiency in all areas of Microsoft Office, including Excel, Word and PowerPoint, InDesign. o Excellent communication skills, both written and verbal o Great analytical skills o Experience in working with, interpreting and manipulation of data[46]Of the applications referred to within the standard Microsoft Office program suite, Excel is the spreadsheet application, Word is the word processing application, and PowerPoint is the presentation application. Although describing proficiency in all areas “including” the claimant did not specify Access, the Microsoft Office database application. InDesign is a non-Microsoft desktop publishing application.[47]The claimant did not at Key Skills in her June 2024 CV, identify what actual experience the claimant had “working with and applying” Excel, and although the claimant, in the section, described a meticulous attention to detail, great analytical skills, and experience in working with, interpreting and manipulation of data, she did not set out a clear indication to anyone reading the CV how and at what skill level she had utilised the standard Microsoft Office spreadsheet Excel application. While the claimant listed previous roles over the subsequent 5 pages of the June 2024 CV, those roles did not clearly identify the skill level at which Excel was used. The claimant did not reference the use of pivot tables with Excel or the application of formulas within Excel.[48]On that day, at 3.24 pm, the claimant emailed Ms Keedle, “Just to let you know that I’ve applied for the two ‘step-up’ jobs we discussed yesterday. I noticed the Range Analysis job I applied for last year was being advertised again so I applied for it too.”. (that being a role the claimant was previously unsuccessful in securing). Ms Keedle responded at 3.25 pm “that’s’ great that they seemed suitable – let me know if you want any support as you go through the journey.” (page 234).[49]On 27 June 2024, Ms Sarah Darkins, the respondent’s Talent Acquisition Manager, emailed Mr Alan Harrison the respondent’s Macro Space Manager, as the relevant manager for the Space Insights Analyst role, advising that the Screening Process for the Space Insights Analyst had been completed and that 6 CVs (including that of the claimant) had been shortlisted for review by Mr Harrison. Ms Darkins set out that, as the claimant was “currently at risk of redundancy so if we don’t take her forward I will just need reasons why so I can feed that back to her”. Ms Darkins also requested that Mr Harrison provide “3 or 4 behaviours and behavioural questions” and provided a “copy of the pack we used last time”, she further asked Mr Harrison whether he would be asking technical questions in the second half or whether he wanted them to complete a technical activity/test/presentation and whether the interviews would be in person or remote, confirming that she would thereafter create the schedule and provide an email for Mr Harrison to provide his availability.[50]Ms Darkins did not need to identify to Mr Harrison the claimant’s qualifying disability, in the context of the June 2024 CV Autism Impact Explanatory Statement provided by the claimant in her CV. Ms Darkins informed Mr Harrison that the claimant was at risk of redundancy, which was not set out in the June 2024 CV. The respondent had knowledge both of what is accepted as the qualifying disability and the claimant’s self-description of the impact of the disability from the June 2024 CV Autism Impact Explanatory Statement from the date of review of the June 2024 CV for each role, but not before.[51]On 28 June 2024, the claimant was advised of rejection of her application without offer of interview for the Business Process Partner role (the respondent's communication of 28 June 2024 confirming application for Business Process Partner will not be progressed), via standardised generic email from the respondent Talent Acquisition Team setting out “Thank you for your application and interest to join our Co-op. Unfortunately, we won’t be progressing your application on this occasion. This might be because you don’t currently have the experience we’re looking for, or because we’ve received applications from other candidates with more relevant experience for this role.” (emphasis added) “We think you might be a good fit for other Co-op jobs, and we’d encourage you to register for job alerts so you can find out about new opportunities as soon as they become available.”[52]The respondent's communication of 28 June 2024, confirming application for Business Process Partner will not be progressed, offered a month of free access to the respondent's career development hub and described that it provided help in “creating and updating your CV, or practising for interviews” and e-learning.[53]On 3 July 2024: 1. At 1.03 pm, Ms Oldroyd, the respondent Commercial Range Manager with recruitment responsibility for the Range Analyst role (the recruitment manager for the Range Analyst role), emailed Ms Darkins, a respondent Talent Acquisition and Development Manager, identifying 5 candidates she wished to interview from a short list of around 20; “Now, this is a very strong shortlist! Amazing how much it varies, but really pleased to see so much interest, relevant experience and also a fair amount of diversity across different areas too. It’s been the toughest of any time I’ve recruited to whittle down… Please could we keep (4 additional) “on hold for now. Unfortunately, the others are to be declined, even though there’s a lot of great experience they just were quite as strong” and described blocking out slots of 1 to 1.5 hours for the 5 interviews. 2. Subsequently, on that date, Ms Darkins emailed the claimant confirming the decision Ms Oldroyd the recruitment manager for the Range Analyst role, decision as regards the claimant’s application for the Range Analyst role taking following review of the claimant’s CV (the respondent's communication of 3 July 2024 declining to progress the application for the Range Analyst role): “I have just sent you an email regarding the above role. Unfortunately we won't be taking your application any further for this role as you do not meet the minimum criteria for the position For this position we are looking for someone who has strong analytical skills along with experience of working with and interpreting large data sets which unfortunately wasn’t evident from your CV Sorry it is not better news on this occasion”[54]On 4 July 2024: 1. At 9.07 am, Ms Keedle emailed the claimant, “I’ll do some digging and see if we can get some feedback to support your next applications. Leave it with me for now.” 2. At 9.49 am, Ms Adele Bowes from the respondent Talent Acquisition and Development Team emailed Ms Darkins, “A request has come in to provide an at risk MP (Kay Rooney) with additional feedback on their applications. I have had look through and identified the below. I can see on Range Analyst they got to HM shortlist so if you have any feedback on why they didn’t progress to add that in that would be great. And of course please add or change anything I’ve popped below that isn’t correct Business Process Partner… Was unsuccessful due to not meeting the minimum criteria. Role has a strong analytical requirement as well as operational knowledge of the retail business. Role is to partner with the business and to continously improve the SAP end to end processes which therefore requires knowledge of the SAP. Range Analyst (blank)” 3. At 9.52 am, Ms Darkins emailed Ms Bowes regarding the claimant, “I sent a separate email yesterday, but she has not met the minimum criteria for the role. The role involves a lot of analytical and range experience which unfortunately Kay doesn’t have. I asked the manager to look at her CV as she was at risk.” 4. At 10.19 am, Ms Bowes emailed the claimant, noting that the claimant had received additional feedback on the unsuccessful Range Analyst role application, confirming that the claimant did not meet the minimum requirement for the role and that for the Business Process Partner role “you were unsuccessful at Initial Screening Stage due to not meeting the minimum criteria for this role. This role has a strong analytical requirement as well as operational knowledge of the retail business, which is outlined in the advert. The role is a partnering position between CBS and the wider business. It involves continuous improvements to the SAP end to end processes when partnering with the business which requires knowledge of SAP. We would also advise when applying for roles to think about tailoring your CV to the job you are applying for, focusing and highlighting those skills that are mentioned in the advert. On your decline email you will have had a link to our CV builder which is a great tool to help fine tune your CV if you feel that would be helpful. We wish you all the best in your job search.” 5. At 2.45 pm, the claimant emailed Ms Keedle, “… I’m really confused because I was under the impression that if my job was at risk, then I automatically got an interview? Can you clarify this for me? You see, I’m under the impression that Co-op does not represent the value of the role I currently have, and in fact sees those employed as inferior employees. This recent behaviour, of not even giving me an interview, back up my impression.” In her 4 July 2024 email, the claimant set out her belief that, as her job was at risk (of redundancy), she would automatically be interviewed for roles she applied for. 6. At 2.56 pm, Ms Camila Keedle emailed the claimant “If you’ve selected you were at risk during the application and you met the benchmark criteria then you’ll be offered an interview… “ 7. At 2.57 pm, the claimant responded to Ms Bowes, not specifying that she was responding on only one of the roles to which Ms Bowes referenced, setting out the claimant’s view that as her “job is currently at risk, I believed that the Co-op must try and help me find a suitable alternative position within the business and there an interview would be granted regardless of being 100% suitable In an effort to reduce the number of redundancies, there should be a hold on recruitment externally and every effort should be made to fill the position internally, which may, of course, result in hiring someone who is not 100% suitable. I’m going to contact ACAS for advice so that I do not make another mistake.” 8. At 3.45 pm (page 438), Mr Hargreaves emailed Ms Darkins regarding interviews for the Markdown Analyst role and Capacity Planning roles, setting out that “Sorry its been a busy week. Please see an update on our Reqs below” listing two individuals for interview for the Markdown Analyst role. “These two did apply for the CP role but the interviews will be the same questions/formats. Capacity Planning” role listing four individuals for interview. “You mentioned” [the claimant] “was shortlisted due to redundancy as a membership pioneer, however when Chris & I have interviewed her we found there not to be experience related to the systems, excel or experience in a head office environment, which the other CVs” 2 named individuals would have been better suited.” He further listed Behaviours for review at interview including Forging Relationships, Speaking Up and Driving Innovation setting out questions for same.[55]On 8 July 2024, the claimant was advised of rejection of her application without offer of interview for the Capacity Planning Administrator role, (the respondent's communication of 8 July 2024 confirming application for Capacity Planning Administrator will not be progressed), via standardised generic email from the respondent Talent Acquisition Team setting out “Thank you for your application and interest to join our Co-op. Unfortunately, we won’t be progressing your application on this occasion. This might be because you don’t currently have the experience we’re looking for, or because we’ve received applications from other candidates with more relevant experience for this role.” (emphasis added) “We think you might be a good fit for other Co-op jobs, and we’d encourage you to register for job alerts so you can find out about new opportunities as soon as they become available.”[56]The respondent's communication of 8 July 2024, confirming application for the Capacity Planning Administrator role would not be progressed, offered a month of free access to the respondent's career development hub and described that it provided help in “creating and updating your CV, or practising for interviews” and e-learning.[57]On 9 July 2024: 1. At 9.30 am, Ms Oldroyd emailed respondent Dan Harley re the Range Analyst role, confirming that Ms Darkins was sorting interviews, as Mr Harley had taken on the relevant manager role for the Range Analyst role. Ms Oldroyd offered brief summaries in relation to those offered interviews including that the first had AO experience at another UK retailer, 10 years in range and merch; second just completed a data science MSC, a third with strong retail background including an online retailer; fourth “category and analytical”; and fifth “least experienced… but has category thinking, and data mindset..” 2. At 9.57 am, Ms Keedle emailed the claimant, “I understand this must be very frustrating. Have you had any feedback from the resourcing teams? I was told they’d reach out to your directly with feedback. If not, I can chase it up. If you’d be happy to share your CV I can take a look at that for you and help you shape it Can I check you are well, are you marking during the application process that you’re at risk of redundancy? Sorry for all the questions, just trying to see where I can best support.” 3. At 12.05 pm, the claimant emailed Ms Keedle, “Yes, I received feedback for one of the positions -Business Process Partner – that was very explanatory. Unfortunately for the Range Analyst position, it was ‘you didn’t meet the minimum requirements’ with no explanation what the minimum required were For the 2 most recent I have received nothing except the email I forwarded on to you. However, ironically I have an interview tomorrow for Space Insight Analyst. I’m going to message HR and ask for proper explanation of the minimum requirements as these are not list on the application. I’d welcome any help with my CV and will send that to you.” 4. At 12.05 pm, the claimant emailed Ms Keedle, “Oh yes, and I tick that my job is at risk and that I’m a disabled person”. 5. At 12.21 pm, the claimant emailed Ms Bowes, Ms Denton and Ms Keedle, setting out that on advice from ACAS she was seeking clarification on the decision not to process job application for Range Analyst, Assistant Markdowns Analyst and Capacity Planning Administrator to an interview, “which the only feedback I have is that ‘I did not meet the minimum requirements… Unfortunately, these posts are not available for me to see anymore but I do not recall any minimum requirements listed on the application. As such can you please send me copies of the job specification along with feedback on where I did not meet the requirements As you will already be aware, my job is at risk and I have a disabled employee, both of which have been stated in my applications” 6. At 3.26 pm, Ms Denton emailed Mr Copeland respondent Member Pioneer Manager Scotland & Cumbria, “ I had a chat with Kay yesterday and asked her to contact the resourcing team for more information on why she failed to meet the minimum requirement and therefore no interview for 3 of the 4 jobs she has applied for … Interesting, she does have an interview tomorrow….to me is a higher spec role than the previous 3 and she has been selected for interview…” 7. At 3.10 pm, Ms Keedle emailed the claimant offering a redesign of the claimant's June 2024 CV. 8. At 3.30 pm, Mr Copeland emailed Ms Denton commenting “… lets see the feedback she gets and at least she has one interview… And if there is anything I can do to help I will”. 9. At 4.05 pm, the claimant, replying to further emails from Ms Keedle that day, emailed Ms Keedle, “I’ve been on the omnitalent hub which is full of great videos” 10. At 5.23 pm, Ms Keedle emailed the claimant, “So first off, congratulations on getting the interview. Have you had the interview questions? Do you need any support with them A colleague and I recently ran a session on preparing for an interview, I’m happy to run through any of the topics we discussed or you can watch the recording ... I’ve also emailed it.. I’ve sent back some recommendations on your CV… And let me know what comes back from resourcing about feedback, otherwise I’ll chase them up on mu side as well I’m around all afternoon until 5, if I can help with preparing for tomorrow, just let me know.”[58]In advance of, and as preparation for the interview for the Space Insights Analysts role, the claimant had access to and had read the respondent Candidate Preparation Guide accessible via the respondent's online systems.[59]The respondent Candidate Preparation Guide at page 2, set out “How to prepare To prepare for the interview, it is recommended that you familiarise yourself with the ‘Co-op Colleague Behavioural Framework’ and think of situations in the past where you have exhibited behaviours which in line with it. It is preferable that these examples come from the last two years so you can recall them clearly, however you may go further back into your career for a suitable example if you need to. You may bring along some notes to refer to should you wish.”[60]The respondent Candidate Preparation Guide at page 4 “The Interview” is divided into 4 sections, including: 4 Adjustments, which set out “We would recommend reviewing guidance from Microsoft about adjustments that can be made on Teams here: Accessibility Tools for Microsoft Teams- Microsoft Support. This may guide your request for an adjustment. At Co-op, we want to make sure disabled people are treated fairly and have access to the same opportunities as everyone else. If you’re disabled, or you have a condition which might make it difficult for you to perform to the best of your abilities in our recruitment process, we can adjust the process according to your needs. To find out more about reasonable adjustments and how we could make our recruitment process fairer for you, visit our guide to reasonable adjustments in our recruitment process This may include asking for a face to face interview or adjustments to a virtual interview. For example, with deaf candidates we can use transcription on the call or the chat function. To ask a question about reasonable adjustments or to let us know about any adjustments you might need please contact” email provided “a minimum of 24 hours before your interview.”[61]The claimant did not request any adjustment in advance of the interview for the Space Insights Analyst role[62]On 10 July 2024: 1. At 9.05 am Ms Darkins emailed the claimant re the Capacity Planning Assistant role, adopted the language provided by Mr Hargreaves on 4 July 2024 … “unfortunately we wont be taking your application any further for this role as you do not meet the minimum criteria for the position. For this position we were looking for candidates who had experience on system, excel and experience in a head office environment which unfortunately wasn’t evident from your CV …” 2. At 9.09 am, the claimant emailed Ms Darkins “thanks for the feedback. Can you just clarify that this is part of the ‘#step up’ program? Can you also send me the job description as ACAS have asked for it.” The claimant's email reflected a mistaken view on the effect of the respondent #StepUp campaign; as published within a respondent weekly (undated) update, which describes that the respondent “know that those from lower socio -economic backgrounds… are less likely to succeed... to make it easier for colleagues to find internal opportunities where their transferable skills may suit a sideways move or promotion, we’ve created the #StepUp campaign- just enter this hashtag into the keyword search… your results will include all those roles which represent a great opportunity for colleagues in the front-line or entry level support centre roles to use their transferable skills and progress their career at Co-op”. The #Step-Up campaign did not guarantee an interview or an appointment; it simply helped individuals identify roles for which they could apply. 3. At 9.22 am, the claimant emailed Ms Keedle “I’m not very happy this morning. I have the reasons why I wasn’t given an interview and to be honest its pretty poor. I’ve decided to raise a grievance regarding this matter. I am extremely experienced in Excel as well as other systems. Page 1 of my CV states that. As an engineer I worked in Head Office although I never thought I’d need to put such a location in my CV.” 4. At 9.30 am, the claimant attended remotely for interview for the Space Insight Analyst role with Alan Harrison, the Macro Space Manager, having received online interview schedule 5-page invite (the June 2024 Macro Space Insight Analyst Role Invite) which set out on page 1: “Additional details of your interview Important Information At Co-op we want to make sure disabled people are treated fairly and have access to the same opportunities as everyone else. If you’re disabled, or have a condition which might make it difficult for your to perform to the best of your ability in our recruitment process, we can adjust the process according to your needs. To find out more about reasonable adjustments and how we could make our recruitment process fairer for you, visit our guide to reasonable adjustments in our recruitment process. To ask a question about reasonable adjustments, or to let us know about any adjustments you might need, please contact us at” providing Ms Darkins’ email, which the claimant already had as set out above. 5. The June 2024 Macro Space Insight Analyst Role Invite, set out on page 2 a description of the role, which describes “Analysing lots of data, you’ll identify the best way to allocate product category space aligned to each store’s format. customer and performance metrics. If you can bring the expert analysis, planning and relationship skills we’re after you’ll have a unique opportunity to learn grow and build a career with a business that always puts people at the heart of its strategy” and repeated the advert “What you’ll do” and “This role would suit people who have”. 6. The June 2024 Macro Space Insight Analyst Role Invite, set out on page 3, Competency Questions identifying behaviours assessed will be Future Focus – How have you kept up to date with new information that is relevant to your role and the company that you work for; Forging Relationships – Describe a time when you have had to build strong relationships across other parts of a business; Driving Innovation – Describe a time when you came up with a new approach or solution to a challenge at work and at page 4 set out “ If you need us to make any reasonable adjustments in order for you to take part in the interview or have any questions about the interview, please contact me” Ms Darkins email provided. 7. Mr Harrison was unaware of the claimant’s diagnosed autism prior to reading her CV. Mr Harrison has some familiarity with autism in that he has a relation who is currently studying law and has been diagnosed with autism. The claimant did not request any adjustments at the interview, and Mr Harrison did not repeat the invitation already set out in the June 2024 Macro Space Insight Analyst Role Invite to request reasonable adjustments in the Interview. He did not presume, in the absence of a request, that the claimant needed an adjustment. 8. Ms Darkins did not make telephone contact with the claimant to invite the claimant to identify an adjustment in advance of the Interview. The claimant did not request any adjustment in advance of the interview. 9. The claimant and other candidates for the Space Insight Analyst role, the interview followed a structured number of questions as set out in Colleague Interview Guide including Unscored Introductory Questions, and Scored Questions 0 to 4: (10 minutes) Behaviour /Future Focus, Forging Relationships; and (5 minutes) Driving Innovation & Technical Questions around the skill-based requirements – 10. For the claimant at unscored Introductory Questions (up to 5 minutes): Please tell me about yourself and the work you have been doing. Mr Harrison, as a summary within the notes section of that unscored element, noted from the interview discussion, the claimant described “Member Pioneer – Championing the community. Returning to work from childcare, extended. Pursued the manager through different means. Work pattern an issue. Over works. Engineering background. Process Driven” 11. For the claimant, Mr Harrison, both assessed and recorded 1. Future Focus; level 1; What went well; internal focused - Development areas: No external looking lacked 2. Forging Relationships; level 1.5; What went well; People skills, bringing people along with her, seemed natural. Sharing the responsibility -Development areas: Not a detailed approach. 3. Innovation: level 1.5 What went well; Identify a problem outside, develop the approach & constant strive for improvement. Continued to work when left. Development areas; Process lacking & how much 4. Technical Skills: level 2 What went well; Good understanding of customers, shops & how they interact with products. Saw the difference between store & there needs- Development areas; Colleague concerns, layout & look & feel 5. Mr Harrison did not record in his interview notes that the claimant’s experience was “outdated”. 6. Mr Harrison did not require that the claimant provide examples of relevant experience within the preceding 2 years. Mr Harrison considered that the claimant had a great example, referencing her pre-career break employment. Mr Harrison utilised the scored question levels when assessing the claimant in comparison to other interview candidates.[63]On 11 July 2024: 1. At 10.34 am, Ms Keedle emailed the claimant, “Just to follow on from the last email” she had requested the ER team to make sure that the claimant’s grievance had come through confirming, that they would not share details of the grievance. 2. At 11.46 am, Ms Darkins emailed the claimant re the Assistant Markdown Analyst role “Unfortunately, we wont be taking your application any further for this role as you do not meet the minimum criteria for the position. For this position we were looking for candidates who had experience on the systems, excel and experience in a head office environment which unfortunately wasn’t evident from your CV. Sorry it is not better news on this occasion.”[64]On 16 July 2024, Mr Harrison interviewed a further candidate for the Space Insight Analyst Role (page 163), although the month was erroneously listed as April in the interview document; Mr Harrison assessed and recorded that candidate as 1. Future Focus: level 2 What went well; showed proactive approach to staying across internal messing Good networks externally as well as internally -Development areas: industrywide & longer horizons 2. Forging Relationships: level 2 What went well: good example of working with others, taking responsibility & developing working patterns -Development areas: (none) 3. Innovation: level 3 What went well; identified the issue & set up a solution bespoke to each colleague, monitored the progress & adapted- Development areas; acknowledgement of previous WoW may have helped bring along some. 4. Technical Skills: level 3 What went well; Brought in lots of in store factors and well as a rounded number of metrics - Development areas; some lack of how & what.[65]Mr Harrison considered all those interviewed, Space Insight Analyst, and appointed the successful candidate interviewed on 16 July 2024. He did so for reasons unrelated to the claimant’s disability. Mr Harrison did not require that the claimant provide examples of relevant experience within the preceding 2 years. While Mr Harrison considered that the claimant had a great example, referencing her pre-career break employment, he concluded that the candidate interviewed on 16 July, who was already in post, demonstrated a higher level of technical skills, innovation, forging relationships and future focus than the claimant and other candidates interviewed.[66]On 18 July 2024 at 4.28 pm, Ms Keedle emailed the claimant in an email headed “Grievance” asking whether the claimant “want any additional support from me at the moment. Next week I’m holding final 121’s if you would like us to find some time. Otherwise, you’ll receive a letter on 26th with the outcome of the consultation and all the relevant information.”[67]On 19 July 2014, the claimant replied to Ms Keedle re further One-to-One “…I’m not sure I’d gain anything from a final 121 tbh”[68]On 22 July 2024: 1. At 11.30 Ms Keedle replied to the claimant “… if you do change your mind or have any other questions just let me know.” 2. The claimant submitted a grievance regarding four roles applied for: Range Analyst, Assistant Markdown Analyst, Capacity Planning Administrator and Space Insight Analyst, ticking box bullying /harassment and set out over 10 paragraphs (numbers below added for ease of reference): 1. My job is ‘at risk’ and so I have applied for various other positions within the organisation 2. All the positions I have applied for have not specified the minimum requirements for the role, however, I have been rejected for an interview because I did not meet the minimum requirements. 3. Range Analyst … - asked for feedback and a copy of the job specification after not being selected for interview. ‘Did not meet minimum requirements’ was all that was given. Further communication came stating ‘elected other candidates with more relevant experience. A copy of the job description was not received. 4. Assistant Markdown Analyst … - asked for feedback and copy of job description after not being selected for interview. ’Did not meet the minimum requirements’ was all that was given. No further explanation or job description received. This was a “#Stepup position.’ 5. Capacity Planning Administrator … - asked for feedback, which was received. ‘looking for candidate who had experience on systems, excel and experience in a head office environment’. 6. Space Insight Analyst … - received interview. Heard nothing back. 7. All these positions were for Hybrid/remote working. 8. I am a degree qualified Process Engineer. Not only am I an expert at analysing and manipulating data (on EXCEL as stated on 1st page of my CV, I am also experienced working in a head office environment. I am skilled on lots of software’s, qualified time/motion expert, equipment programmer, previous supervisor of over 150 employees as well as an abundancy of other skills. 9. The recruitment process has completed failed me as an ‘at risk’ employee and I feel that even though I have ticked the box on the application that I am at risk, it has been completely ignored. 10. Any business has a responsibility to reduce the number of redundancies it plans by, redeploying employees into other roles, that they may be able to transfer skills too. I know I have transferrable skills and feel discriminated against due to my current role in Co-op. I am also an Autistic adult which I identified on my CV and I think this has been used to discriminate against me.”[69]On 30 July 2024: 1. At 11.06 am, Mr Andrew Hay, respondent Head of Operations, Legal and Secretariat, emailed the claimant, “I have been asked to hear your grievance. I have a copy of your Form but I’d like to have a meeting with you to make sure I understand the points you have raised. Please let me know when you would be available next. I suggest the meeting is held on Teams but let me know if a different way of meeting would be preferable. I look forward to catching up soon.” 2. At 11.40 am, Mr Hay emailed Ms Bowes requesting a copy of the claimant’s CV. He did so as part of his fact-finding exercise for the grievance. 3. At 1.39 pm, Ms Darkins emailed the claimant regarding the interview she attended for the Space Insights Analyst role, setting out that Mr Harrison “had been in touch following your interview for the above position and unfortunately on this occasion you have not been successful. I asked Alan to share some initial feedback as below Kay displayed a real affinity for the coop & what we represent & had some good insights into shops, customers & how they interact. She fell a little short when it came to the analysis side of things, which was much more process-driven than the statistical focus we were after. Some of her examples where quite distant disregarding her career break & not from the most recent few posts she’d held If you’d like me to arrange a full feedback session then please let me know and I will ask Alan to reach out directly…”[70]On 31 July 2024: 1. At 10.03 am, the claimant replied to Mr Hay email of 30 July, “Good morning, Andrew. I am available Tuesday and all day Wednesday next week for a meeting. Teams will be perfect for me” 2. At 3.00 pm, Mr Gill and another emailed the claimant, in an email headed “CONFIDENTIAL individual consultation”, setting out that the redundancy consultancy had come to an end and providing documents including letter dated 31 July 2024 which set out that the collective consultation with the trade union in respect of the proposed redundancies of Member Pioneers and Member Pioneer Co-ordinators had now concluded and set out the claimant’s role as Member Pioner would be redundant with effect from 24 August 2024 and set out the redundancy payment due to the claimant.[71]On 1 August 2024: 1. At 9.19 am, the claimant emailed Mr Russell Gill together with Mr Tom Copeland, Ms Camilla Keedle and Ms Shirley Denton, forwarding on the 31 July 3.00 pm email from Mr Gill and another: “Hello all I received this email yesterday, but it seems that the date given as my finish date of 24/8/24 is incorrect. Can you please amend with the correct notice period.” 2. At 10.39 am, Mr Russell Gill, respondent Community and Member Participation- Redundancy Consultation Manager, replied by email to the claimant: “Very happy to clarify. The leave date of 24 /08/24 is correct as we have extended your notice period to the full 4 weeks so that we can aim to conclude your Grievance while you are still a Co-op employee. This means that you will still have access to Co-op IT, Colleague discount etc You will not be financially disadvantaged as you will not be required to work during the two-week extension, which we are treating as “garden leave”; so you will still receive the same payment when you leave as you would have done had you left on 10 August with two weeks' pay in lieu of notice. Also, I can confirm you will still be paid your final salary including redundancy at the same time as before so there will be no delay in receiving payment. We have made the change simply so that we can deal with the Grievance you submitted in an orderly way …” 3. At 10.05am, the claimant replied to Mr Gill's email, “No, I am expecting it to be 4 weeks from receipt of notice (which was yesterday, not Friday like everyone else. I believe it should be 29th August” 4. At 16.05, (page 293) Ms Bowes emailed Mr Hay with information “… Job Description requests Request for Job specification alongside request for Additional feedback e-mail this was missed accidentally and just the feedback was provided highlighting the requirements and where key did not meet these talent acquisition do not hold job specifications role profiles are held by the manager and the requirements the manager highlights added to the advert and formed the minimum criteria along with any rule specific screening questions of added so although not shared criteria was visible in advert Reasonable adjustments Offer of reasonable adjustments was on the e-mail invite to interview but no request was received Can we look at the dates from offer feedback on CV and where her application was in the process Feedback received on 4th July, all applications to roles were made by Kay on 26th June, so not had the opportunity as of yet to tailor CV and resubmit for new roles. Career Development We have also been able to identify that Kay has accessed our Career Development Hub” on 9 July 2024.[72]On 2 August 2024, Mr Hay emailed an invite communication to the claimant “I’m writing to confirm our meeting to discuss your grievance form. … (confirming 9 am on Teams) “You can arrange to have a colleague or trade union rep come with you if you wish. If you need any adjustment to the meeting, due to a disability or language needs, please let me know as soon as possible.” The claimant who received this email did not, in response, seek any adjustment.[73]On 6 August 2024, the Grievance Hearing took place with Mr Hay taking the hearing and a colleague, Ms Senger, attending as Note Taker. In advance of that Hearing, there was an exchange of emails between Mr Hay and Ms Bowes. Having regard to the Issues and Ms Williamson’s Feedback on 18 September 2024, set out below, for the sake of brevity, it is not considered necessary to set out the terms of the Minutes of the Grievance Hearing beyond summarising that the claimant confirmed that she was happy with the notes, the discussion was framed in the context that the claimant set out that “700 people heard” Mr Gill “say you will be guaranteed an interview” and in her view she met the minimum requirements, further that at page 3 the claimant described that she had never listed she had worked in a head office, but described that she had worked as an engineer in a head office and commenting that the role was remote so why would she even put on head office experience and at page 4 she described that her CV says Excel and asserted “it was not looked at” while it appeared on page 1 of her CV “it says MS packages I’m skilled at” to which Mr Hay agreed. At page 5, the claimant describes her family situation and states that she was “incredibly angry that my experience has been disregarded because it was a while ago”. At page 6 the claimant did not challenge the notes setting out that Mr Hay raises as final point the claimant set out in Grievance “I am an autistic adult which I have identified on my CV and I think this has been used to discriminate against me”, the claimant describes that “Because I’ve been rejected for not having experience which is on my CV it is clear I do. It’s a fob off”, while the claimant describes “I am autistic. It also means that I have incredibly great analytic skills. I scrutinise every piece of information given to me and autistic people can juggle figures and information in our sleep so to say I don’t have that skill. I may not have used the skill professionally but I do have the skill. I can’t think of any other reason why”. This is followed with a discussion on resources, the claimant describes, “Yes my consultation manager Camilla has been fantastic and encouraged me…looked over my CV … so yes, I’ve got another job, I did use that, it was incredibly good.”[74]The claimant did not propose during the June 2024 Grievance Hearing that the respondent knew prior to her provision of the June 2024 CV of the qualifying condition. The claimant did not, in the context of the Issues ss20 & 21Equality Act 2010, propose during the June 2024 Grievance Hearing that there was any disability related disadvantage in relation to the respondent's redundancy announcement and did not propose that there was no opportunity for follow-up, having regard to her comments regarding the allocated consultation manager, Ms Keedle.[75]On 8 August 2024: 1. At 11.58 am, Mr Hay emailed Mr Bowes, “Are you happy with the words? “In the feedback received, you not being successful, you queried the comment ‘experience in a Head Office environment’. Evidence of ‘excellent problem solving skills’ or ‘confidence to lead discussions’ are skills that are often, not exclusively, demonstrated when working in a Head Office environment. Including the phrase ‘Head Office environment’ in your feedback was not helpful in explaining to you the gap in meeting the requirements of the role. This is an area where we can be better, and I have shared this feedback with the Talent Acquisition Team.” Mr Hay, having looked at the phrase “head office environment” felt that this could have been better worded. 2. 12.02 pm Ms Bowes agreed to the form of words proposed by Mr Hay.[76]On 12 August 2024, the Grievance Outcome as set out by Mr Hay was issued to the claimant. Having regard to the Issues and Ms Williamson’s Feedback on 18 September 2024, set out below, for the sake of brevity, it is not considered necessary to set out the terms of the Grievance Outcome[77]On 22 August 2024: 1. At 10.19 am, Mr Hay emailed the claimant with Role Profiles the respondent had created for Assistant Markdown Analyst role, Capacity Planning Administrator, Range Analyst role, and Space Insight Analyst role. Mr Hay described that the Line Manager for the Business Partner role was not back until the following week but would forward it as soon as he received it. 2. At 1.42 pm, the claimant replied to Mr Hay, thanking him, but setting out that this was not what she was looking for “I’m looking for a copy of the adverts starting ‘the role would suit’”.[78]On 23 August 2024, the claimant’s undated grievance appeal setting out her embedded appeal comments responding to each paragraph of the Grievance Outcome was received by the respondent (the claimant’s August 2024 Grievance Appeal). 1. Your state that at the initial briefing you were told you would get an interview for any role. Summary of Response Claimant embedded comment: 2. You believe the minimum requirements have not been stated Summary of Response Claimant embedded comment. 3. The tick box indicating that you are at risk of redundancy has been ignored. Summary of Respondent Response. Claimant embedded comment: 4. You believe that your CV has not been reviewed. Respondent Response - I have found no evidence to support your view. When assessing the talent Acquisition Team are looking for evidence across all indicators highlight in the ‘this role would suit people who have’ Where there is partial evidence of meeting the requirements the Talent Acquisition Team will talk with the Recruiting Manager before a decision is made on whether to bring a candidate forward to interview. In the Feedback form... you queried the comment ‘experience in a Head Office environment when the adverts state the roles would be carried out in a hybrid way… Evidence of ‘excellent problem solving skills’ or ‘confidence to lead discussions’ are skills that are often, but not exclusively, demonstrated when working in a Head Office environment. Including the phrase ’Head Office environment’ in your feedback was not helpful in explaining to you the gap in meeting the requirements of the role. This is an area where we can be better, and I have shared this with the Talent Acquisition Team. Claimant embedded appeal comment: The manager may have found no evidence, but clear evidence of it having been read properly would have been to respect the information given, and question anything that is unclear. Stating that requirements have not been met when the CV illustrates that I have, suggest strongly that insufficient and disrespectful attention has been paid. The lack of respect and thoroughness is also evident by separate applications for different roles receiving identical feedback. This disrespect to colleagues and failure to meet legal requirements has all been carried out by staff who met the Coop’s criteria which can perhaps been seen as further evidence of serious issues in their recruitment processes. Although the Minimum Requirements were not stated on the job specification, I did meet them. The first page of my CV states the software that I am PROFICIENT in, which clearly states EXCEL. 5. You have not been provided with role profiles, despite asking for them Summary of Respondent Response- Apology, these would be provided once Mr Hay had them. Claimant embedded appeal comment: “I requested them on 09/07/2024, and of today I still have not received them.” 6. You believe that as an adult with autism you were treated differently. Summary of response- Mr Hay had not found, nor, he suggested, had the claimant provided evidence to support. Claimant embedded appeal comment: “I think my CV is clear in the roles that I have held and clearly identifies the skills that I have. I know I have met the “minimum” requirements and yet the Talent Acquisition Team do not agree. I believe that the Talent Acquisition Team had no intention of ready my CV thoroughly and considering me for any position after they seen the word “Autistic”. I would have expected an organisation like this would have been more likely to interview someone with a disability they were overcoming rather than disregarding them. I wonder how many cases of discrimination have begun with management ‘not finding any evidence’. 7. You believe that being a carer resulted in you in you discriminated for in the Space Analyst Position. Response- “I have reviewed the email that you were sent. This states that your career break had been disregarded and that you were not able to provide evidence of the required skills from the roles that you are currently fulfilling. The interview pack that is sent to all candidates advises that examples should be from the last 2 years. “I did not say that I was discriminated against for being a carer, but rather that I had a career break. I am still on a career break, as my Member Pioneer role cannot be classed as a career with only 4 hours a week. In fact, it would be impossible to answer those questions from my current role. However, I draw your attention to the feedback. The interview pack that is sent to the candidates advises that examples should be from the last 2 years. MY career break has been nearly 14 years, but this does not make my skills or experience less valid or worthless. As my career break has been required by my role as a mother and carer this also makes it clear that the policy is sexist, and may raise suspicion of institutional sexism.[79]The claimant’s August 2024 Grievance Appeal did not propose any reasonable adjustment.[80]On 24 August 2024, the claimant’s Member Pioneer role would have been due to terminate.[81]On 28 August 2024: 1. Ms Hal Williamson, respondent Head of Category & Strategic Supplier Management wrote to the claimant, letter sent by email (page ) “I acknowledge receipt of your letter (undated) which I received on 23 August 2024 in which you appeal against the outcome of your grievance...” (confirms the date and time of appeal by Teams) “Thank you for confirming to me already that you will be bringing a former colleague to the meeting to take notes of our conversation,. I would be grateful if you would confirm your attendance at the appeal hearing by accepting the Teams invitation which I have sent to you.” 2. At 9.09am, (page 320) Mr Hay provided the claimant with a copy of the advert for the Range Analyst role, Assistant Markdown Analyst role, Assistant Category Planner role, Space Insights Analyst role and Business Process Partner role. 3. At 4.00 pm, Ms Williamson emailed the claimant, setting out, so far as relevant. “Thank you for confirming that you can attend the meeting and that will be accompanied by Jennifer” Whittle… “ I have sent you a Teams link which you can forward to Jennifer if required. If you require any adjustments or further support for the meeting please let me know. I look forward to meeting you on Friday.” The claimant did not propose any adjustment in response.[82]On 29 August 2024, the claimant’s employment terminated, the claimant emailed Ms Hay confirming receipt of a copy of the email issued to her on 11 July 2024 by Ms Darkin re Markdown Analyst role declining to take the application further, which she had previously requested.[83]On 30 August 2024, the claimant, accompanied by Ms Whittle, attended the Grievance Appeal Hearing taken by Ms Hals Williamson. Ms Hall was the Note Taker. For sake of brevity and having regard to the Issues and Ms Williamson’s Feedback on 18 September 2024, set out below, it is not considered necessary to set out the terms of the Minutes of the Grievance Hearing beyond summarising as part of her investigation Ms Williamson reviewed material she considered relevant including claimant grievance and role adverts comparing with the June 2024 CV and further the discussion was framed in the context that the claimant described that Mr Gill advised (during the consultation announcement on 5 June 2024) that an Interview was guaranteed for any position applied for, the claimant commenting that Mr Gill “said this to a lot of people” on telephone call; the claimant view that the minimum requirement was not clear; the claimant’s view that redundancy tick box was ignored (in the context of what Mr Gill is stated to have said); the CV feedback, the claimant expressed view that one of two things happened 1) whoever saw the June 2024 CV saw the claimant was a “member pioneer and therefore did not bother 2) saw that” [the claimant] “has disclosed that they have autism and did not bother”; different treatment due to autism, Ms Williamson commented that “this was touched on briefly during the CV point. Is there anything further…” to which the claimant responded “not in relation to this”; Felt discriminated against due to career break, the claimant commented that the reason is because she had career break, the claimant’s response was “in interview pack, it is stated that examples “should” be from the last 2 years, which is discrimination.” And in relation to Further Questions, the claimant describes that the grievance is that in the interview, the claimant was asked to provide examples from the last 2 years. Beyond reviewing the emails provided, hearing the claimant's position at the Grievance Appeal Hearing, the claimant did not propose that Ms Williamson ought to interview the various decision-makers. Ms Williamson was not provided with emails on 9 July 2024 between Ms Denton and Mr Copeland.[84]The claimant did not propose during the August 2024 Grievance Appeal Hearing that the respondent knew prior to her provision of the June 2024 CV of the qualifying condition. The claimant did not, in the context of the List of Issues ss20 & 21 Equality Act 2010, propose during the August 2024 Grievance Hearing that there was any disability related disadvantage in relation to the respondent's redundancy announcement and did not propose that there was no opportunity for follow-up.[85]On 18 September 2024: 1. At 10.55 am, Ms Williamson issued an internal email to an Employment Relations colleague, Recommendations /findings to feed back to the business (Ms Williamson’s Feedback on 18 September 2024), including setting out Findings: 1. No evidence of discrimination or unfair treatment 2. The A-Day script should not have committed to guaranteeing at risk colleagues an interview for any vacant role if this was never the intention. “As a colleague at risk of redundancy, we will guarantee you an interview for vacant role, though you will need to achieve the necessary benchmark in order to be recruited to the role.” 3. Feedback given by TAD when declining applications did not always align to the minimum criteria of the role and this caused confusion and a poor colleague experience 4. Despite similar minimum criteria for multiple roles, candidate was shortlisted for some roles and not others - this is inconsistent and the reason for this being hiring manager discretion could be explained to the candidate. 5. Grievance Outcome letter was incorrect and some of its findings e.g. re point 2 above, “The script used at the initial briefing and the colleague information part are clear that, for a colleague at risk of redundancy, who meet the minimum requirements at interview would be guaranteed” This was not the case on either point. 6. Different views came through within TAD on what the minimum criteria are e.g. has been stated multiple times to the “would suit someone who” but then references to specific experience on systems not included in this section has been raised as a reason for not shortlisting 7. Two colleagues in TAD dealt with the candidate screening for different vacancies and Recommendations 1. A- Day scripts to be proof read vs intent for accuracy recommend reviewing approach... 2. A-Day scripts to be checked for consistency with consultation pack, FAQs, and individual consultation meeting scripts - recommend reviewing approach 3. At risk and disability confident applications should have a single TAD contact reviewing and OD scenarios if possible - recommend reviewing approach 4. Feedback should meet the minimum criteria and this only - other things are irrelevant and language should be consistent with the advert, especially if the candidate is to be guaranteed an interview if they meet the minimum criteria, the feedback must be aligned to the minimum criteria -training and process review recommend 5. Minimum criteria in roles to be made clearer in adverts - recommend reviewing approach 6. Recommend more training needed in TAD on handling at risk and disability confident applications - different approaches taken indicate further consistency needed on when to take a generous view of CV for short-listing process purposes 7. Grievance outcome letter should be fact checked independently where possible where practical - recommend review of approach. 2. Ms Williamson issued the Grievance Appeal outcome, including setting out that “at Interview, you were discriminated against due to your career break, as the Interview pack stated that examples given at Interview should be from the last two years. You were unable to use your role of Member Pioneer for your examples as you worked 4 hours per week As your career break was due to being a mother and carer you feel that this policy is sexist The guidance for examples to be from within the last two years is to draw on individuals' current skill sets. This is stated in the interview pack but is guidance only and candidates are able to answer questions with examples from outside of this timeframe if necessary. You said in our meeting that you had explained in your interview that you had taken a career break; this would have been useful context for the Hiring Manager to consider when you gave your examples, and they referenced in their feedback that this was taken into consideration. I am satisfied that the timing of your examples was not the deciding factor in the outcome on this application and that the feedback relayed from the Hiring Manager to you by the Talent Acquisition and Development team demonstrates this.ln summary. I have found that several aspects of the process could have been improved upon, as well as how you feel about your experience. However, I have found no evidence that you have been discriminated against or treated unfairly. nor have I found that Co-op has failed in its legal obligations: therefore I am not upholding the key aspects of your grievance I hope you will understand my finding When we met you confirmed that you were seeking a thorough investigation and financial compensation. I have completed a detailed investigation and have endeavoured to respond to all of your points and the additional evidence which you've kindly provided. However, as I have only partially upheld your grievance in acknowledgement that you could have received a better experience, though I do not believe that this has had a bearing on any of the recruitment outcomes, I do not feel that financial compensation is appropriate. I hope you will understand this. Unfortunately, there is no further right of appeal, but if you do have any questions about the decision please speak to me as soon as possible…I wish you all the very best for the future, Kay.” 3. The claimant commenced ACAS early conciliation[86]On 27 September 2024, the claimant started new employment as a part-time taxi driver working around 8 hours per week, earning around £97.68 per week.[87]In relation to the role outcomes, the claimant submitted a Freedom of Information application: 1. Assistant Markdown Analyst role- the respondent hired internally, not a seconded role 2. Business Process Partner role – 2 x external candidates hired 3. Capacity Planning Administrator role- internal hire but from another role and not a secondment. 4. Range Analyst role - external candidate hired 5. Space Insight Analyst role- internal hire from on secondment in the role after 4 candidates were interviewed, including the claimant. Witness evidence[88]The Tribunal heard evidence from the claimant; broadly, the claimant sought to be straightforward in her evidence. However, the Tribunal concludes, as set out below, having regard to the balance of contemporary documentation, that the claimant is mistaken in her honest but mistaken recollection that she advised the respondent prior to the provision of the June 2024 CV and her response to Screening Questions of the qualifying disability. The Tribunal also heard from witnesses for the claimant, Ms Jane Green, a former Pioneer Member and lead claimant in the multiple unfair dismissal claims, and Jennifer Whittle, a former Pioneer Member, both of whom provided straightforward responses in evidence of matters within their direct knowledge.[89]The respondent witnesses; Stephanie Buckinghamshire, Talent Acquisition Advisor for the Business Partner role; Philip Hargreaves, Hiring Manager for the Assistant Markdown Analyst role; Alan Harrison, Macro Space Manager, Hiring Manager for the Space Insight Analyst role; Andrew Hay, Head of Operations; Camila Keedle, the One-to-One Consultation Manager; Chris Lawson, Hiring Manager for the Capacity Planning Administrator role; Jennifer Oldroyd, Hiring Manager for the Range Analyst Manager role; Hals Williamson, Head of Category & Strategic Supplier were each straightforward and honest in their evidence. While the claimant proposes that Ms Buckingham changed her evidence in relation to declining to offer to interview for the Business Process Partner role, the Tribunal disagrees; she clarified her evidence, and the relevant Screening Question on SAP was on the following page of the bundle. Ms Sarah Darkins who attended while currently on leave is a Talent Acquisition Advisor was also straightforward and honest in her evidence, although mistaken in her honest but mistaken recollection in the hearing that she would have attempted to telephone the claimant to discuss any adjustments around the interview for the Space Analyst role; there was no suggestion in subsequent emails or indeed in the response to the Grievance or the Appeal Outcome that such an attempt was made. Submissions
The List of Issues
[90]Both parties usefully frame their respective submissions in the context of the List of Issues. Paragraph number issues[91]Following receipt of written submissions, parties were provided with further opportunity to respond to each other's submissions, the Tribunal having noted that there appeared to be some disparity in the references to paragraphs. The Tribunal recognised that paragraph numbers referenced in the draft submission will sometimes change and provided an opportunity to update such numbers[92]The Tribunal in particular noted that the respondent, in Written Submission at paragraph 145, disputed what is said to be the claimant’s Submissions at paragraph 143 that Ms Whittle had stated in her evidence that in evidence “that is was common knowledge in her team, including the line manager” (a reference to the disputed knowledge of disability). In the claimant's Final Written Submission provided to the Tribunal, the claimant's assertion is made at paragraph 138 (although also made earlier at paragraph 34). The Tribunal notes that the claimant references this in her subsequent Supplementary Written Submissions (paragraph 3), although she does not update the numbering to match that set out in her original written submissions.[93]By way of further example, the claimant's supplementary written submissions at paragraph 1 references the respondent's written submissions at paragraph 147, which describes “the Claimant’s paragraph No 159 & 160…”. This is a reference to paragraphs 157 to 159 of the claimant's written submissions (as submitted as opposed to a draft exchanged between parties, which was appropriately unseen by the Tribunal).[94]The Tribunal has, so far as relevant, taken into account that submissions internally reference paragraph numbers which have altered from (unseen by Tribunal) drafts to those submitted to the Tribunal. Claimant submissions[95]For the sake of brevity, it is not considered necessary to set out the claimant's written submissions, which extend to 50 pages, including 253 paragraphs and 4 appendices, nor the claimant's supplementary written submissions provided on 22 August 2025, which extend to 4 pages with 4 numbered paragraphs and include a full copy of claimant communication provided to Tribunal and respondent 17 April 2025 and before the start of this hearing.[96]As set out below, however, the claimant is mistaken in her written submissions (paragraphs 34 and 138) and supplementary written submission (paragraph 3), in suggesting that in Ms Whittle's evidence, she set out an understanding that the respondent was aware of the claimant’s qualifying disability in effect before the claimant submitted the June 2024 CV on 26 June 2024 for the roles.[97]Furthermore, while the claimant states in paragraph 115 that Ms Green was a relevant comparator for reasons outlined below, this is not accepted.[98]The claimant's written submissions refer to a number of authorities; for ease, the Tribunal lists them in date order rather than the order they are referred to: ; Glasgow City Council v Zafar [1998] 36 (Zafar), Archibald v Fife Council [2004] UKHL 32 (Archibald), Wong v Igen Ltd v Wong and others [2005] ICR 931 (Igen), Hewage v Grampian Health Board [2012] ICR 1054 (Hewage), Redcar and Cleveland Primary Care Trust v Lonsdale [2013] UKEAT/0090/12 (Lonsdale), Home Office (UK Visa & Immigration) v Kuranchie [2017] UKEAT/0202/16/BA (Kuranchie), Baldeh v Churches House Association [2019] UKEAT/049/19 (Baldeh), Efobi v Royal Bank Mail Group Ltd [2021] UKSC 33 (Efobi), Stott v Ralli [2021] EA 2019 000772 (Stott) , Dobson v North Cumbria Integrated NHS Foundation Trust [2021] UKEAT/0220/19 (Dobson), Hughes v Progressive Support Ltd [2021] UKEAT/0195/20 (Hughes), Aecom Ltd v Mallon [2023] EAT 103 (Mallon), Rentokil Initial UK Ltd v Mr M Miller [2024] EAT 37 (Miller) and Hendy Group Ltd v Kennedy [2024] EAT 106 (Kennedy) Respondent submissions[99]To the extent it is relied upon and for the sake of brevity, it is not considered necessary to set out the respondent’s Skeleton Argument provided at the outset of the continued hearing on 16 June 2025, which extends to 20 paragraphs over 20 pages and includes reference to Igen, Madarassy v Nomura International plc [2007] ICR 867 (Madarassy) and Efobi.[100]Further, and again for the sake of brevity, it is not considered necessary to set out the respondent's written submissions, which extend to 170 paragraphs over 19 pages.[101]Nor is it considered necessary to set out the respondent's email of 28 August 2025, which is a supplementary submission.[102]The respondent in written submissions refers to Project Management Institute v Latif [2007] IRLR 579 (Latif)[103]The respective parties' submissions are referred to below where relevant. Relevant Law Fair Notice
Relevant Law
[104]As Langstaff P noted in Chandhok v Tirkey [2015] IRLR 195 at paragraphs 16 & 18 sets out: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning… the claim as set out in the ET1.” “...a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it… It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[105]Rule 41 of the 2024 ET Rules of Procedure provides: General(1) The Tribunal may regulate its own procedure and must conduct any hearing in the manner it considers fair, having regard to the overriding objective.(2) The Tribunal must seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence.(3) The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts(4) This rule is not restricted by any other rule contained in this Part. Statutory provisions relied upon:.[106]Section 13 EqA Direct Discrimination 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.[107]Section 19 EqA under the heading Indirect discrimination, provides:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s..(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) The relevant protected characteristics are— …sex, ...[108]Section 20 EqA under the heading ‘Duty to make adjustments’, provides: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[109]Section 21 EqA under “Failure to comply with duty” provides:(1) A failure to comply with the first … 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.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise Burden of proof for discrimination claims[110]s136(1) to (3) of EA 2010 (the burden of proof provisions) set out: “(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[111]In Madarassy Mummery LJ held at [57] that ‘could conclude’ [The EA 2010 uses the words ‘could decide’, but the meaning is the same] meant: ‘[…] that “a reasonable Tribunal could properly conclude” from all the evidence before it.’[112]However, a simple difference of treatment is not enough to shift the burden of proof; something more is required: Madarassy per Mummery LJ at para 56: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ Code of Practice[113]Section 15 (4) of the Equality Act 2006 provides that the EHRC 2011 Statutory Code of Practice shall be taken into account, wherever it appears relevant to the Tribunal to do so.[114]The Equality and Human Rights Commission Code of Practice on Employment provides, at paragraph 3.28: “Another way of looking at this is to ask, 'But for the relevant protected characteristic, would the claimant have been treated in that way?'”, and at: Chapter 16: Avoiding discrimination in recruitment: An employer must not discriminate at the interview stage. In reality, this is the stage at which it is easiest to make judgements about an applicant based on instant, subjective and sometimes wholly irrelevant impressions. If decisions are based on prejudice and stereotypes and not based on factors relating to the job description or person specification, this could lead to unlawful discrimination. By conducting interviews strictly on the basis of the application form, the job description, the person specification, the agreed weight given to each criterion and the results of any selection tests, an employer will ensure that all applicants are assessed objectively, and solely on their ability to do the job satisfactorily.[115]Chapter 17: Avoiding discrimination during employment Issues and considerations that arise on recruitment (see Chapter 16) can arise again in respect of promoting or transferring existing workers to new roles. It is unlawful for employers to discriminate against, victimise or harass workers in the way they make opportunities for promotion or transfer available or by refusing or deliberately failing to make them available. An employer may need to make reasonable adjustments to the promotion or transfer process to ensure that disabled workers are not substantially disadvantaged by the process for promotion or transfer or by the way the process is applied.[116]Chapter 19: Termination of employment: Dismissal for reasons of Capability and Conduct Where an employer is considering the dismissal of a disabled worker for a reason relating to that worker's capability or their conduct, they must consider whether any reasonable adjustments need to be made to the performance management or dismissal process which would help improve the performance of the worker or whether they could transfer the worker to a suitable alternative role. General review of the additional authorities to which the parties refer.[117]It is recognised that the claimant is unrepresented. The Tribunal considers that, in all the circumstances, it is appropriate to provide a brief comment on cases referred to, each of which has been considered in the current case:[118]In relation to Zafar [1998], the Tribunal notes Lord Brown- Wilkinson’s reference to the guidance by Neill LJ in King [1991] IRLR 513.[119]In Archibald [2004], the House of Lords considered the claim by Mrs Archibald, who had been employed as a street sweeper, had become disabled due to surgery and was, in consequence, unable to perform her job, and was dismissed as a result of that effect of the disability. The House of Lords held that Fife Council would not be in breach of the relevant section of the Local Government and Housing Act 1989 (which required that appointments should be made on merit) if it transferred her to a sedentary and higher grade position even though she had not performed well in competitive interviews as long as the transfer was done to fulfil a duty (under what was s6 of the Disability Discrimination Act 1999) to make adjustments in relation to people who are at a substantial disadvantage because of their disability in comparison with people who are not disabled. That duty might require an employer, when making adjustments, to treat a disabled person more favourably to remove the disadvantage which was attributable to the disability. 120. In Igen [2005], Lord Justice Peter Gibson accepted that it was open to the employment tribunal on the facts of that case to draw an inference of discrimination from unexplained unreasonable conduct on the part of the employer. Furthermore, it stated that if part of the reason was more than a trivial part of it, this could suffice; and in this context, referred to Nagarajan v London Regional Transport [1999] IRLR 572. “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”[121]In Latif [2007], Ms Latif was registered blind, the EAT set out that in a disability discrimination case where it was alleged the respondent had failed to make reasonable adjustment, the burden of proof only shifts to the respondent once it had been established, not only that the duty to make reasonable adjustments had arisen, but that an identified allegedly reasonable adjustment could have, but had not been, made.[122]In Hewage [2012], the Supreme Court set out that the guidance given in Igen and Madarassy as to how Tribunals should approach cases was very clearly expressed, and there was no need for any further guidance from the Supreme Court.[123]In Lonsdale [2013], a Senior Occupational Therapist, due to suffering significant deterioration in her vision, had been redeployed into a lower-band position, which subsequently led to a genuine redundancy situation from that role. The EAT upheld the Tribunal decision that the employer had failed, on the facts in that case, to make a reasonable adjustment by refusing to vary the terms of its redeployment policy in that redundancy situation. At paragraph 20, the EAT set out: “… Had she not become disabled she would have remained in her original band 6 post and, had that been at risk, would have been eligible to compete with the successful candidate for the Safety role. Instead, she was disadvantaged by not being able to apply for that alternative role. As to whether allowing her to compete for that post was a reasonable adjustment, the ET took into account the Respondent's desire to treat all staff equally under the HR Framework, but that overlooks the Respondent's own acknowledgement that sometimes disabled people must be treated more favourably than those who are not disabled, the principle established in Archibald v Fife Council [2004] IRLR 651 (HL). In all the circumstances it was not unreasonable to make an exception under the HR Framework to allow for the Claimant's disability and its consequences.”[124]In summary, the employer failed to make an identified reasonable adjustment for an employee’s disability by refusing to vary the terms of a redeployment policy in a redundancy situation. The EAT held that Ms Lonsdale’s loss of the chance of obtaining the alternative post was a factor that could be properly considered in the calculation of redundancy.[125]In Kuranchie [2017], the EAT held that the Tribunal had been entitled to find, on the facts, that the employer had failed to make reasonable adjustments for an employee's dyslexia and dyspraxia “by failing to reduce her workload”, even though she had not herself suggested such an adjustment at the time, in the context that prior to the final hearing (the Tribunal Judgment was issued in April 2016) at case management Preliminary Hearing in June 2015, the Tribunal had identified that the complaint was that the respondent had a provision or practice of giving the Claimant the same volume of work as her colleagues, which placed her at a substantial disadvantage compared to her non-disabled colleagues because it took her longer to complete the work due to her disabilities. Ms Kuranchie gave notice that she complained, as a result, she worked longer hours than her colleagues to complete the work. The respondent should have made the reasonable adjustment of reducing her workload in order to avoid the disadvantage, although that reasonable adjustment had not been proposed by the claimant and had not been identified in a report commissioned by the respondent.[126]In Baldeh [2019], the EAT concluded that this was not a case where the outcome of an internal appeal was integral to the overall decision to dismiss. Mrs Baldeh had been dismissed at the end of a probationary period. Mrs Baldeh raised a s15 (something arising) EQA claim, it was noted, on the facts that she had raised the issue of her disability (depression) for the first time in her appeal hearing.[127]In Efobi [2021], the Supreme Court accepted that a Tribunal was not prevented from considering evidence from all sources at stage one, including evidence adduced by an employer which rebutted or undermined the claimant’s case: the only matter to be ignored at this stage was any explanation given by the employer for the treatment complained of, since that specifically would be a matter to be considered at stage two. The Supreme Court set out that s136(2) of the Equality Act 2010 had not altered the burden of proof in employment cases where discrimination was alleged. At the first part of the two-stage process for analysing complaints of discrimination, the claimant had the burden of proving on the balance of probabilities those matters which they wished the Tribunal to find as facts from which the inference could properly be drawn (in the absence of any other explanation) that an unlawful act had been committed. Further, Lord Leggatt posited that a failure by the employer to call the actual decision-makers to give evidence as to why the claimant was treated in the way they were may, in some circumstances, be a sound basis for a Tribunal to draw adverse inferences. Inferences of discrimination may also be drawn from an employer’s failure to follow a statutory Code of Practice, such as the EHRC Code.[128]In Stott [2021], Ms Stott had been dismissed due to alleged poor performance as a paralegal while working for a firm of solicitors. Ms Stott raised a s15 (something arising) EqA claim asserting the alleged poor performance was a consequence of her disability. The employer had been unaware of the disability at the time. On the facts of this case, Ms Stott could not rely upon knowledge of the disability acquired by the employer after the dismissal but before the hearing of the grievance raised after the dismissal. The complaint about s15 EqA had not extended the grievance procedure.[129]In Dobson [2021], the EAT examined the concept of judicial notice and provided guidance on the scope and application of what is referred to as the childcare disparity, specifically that women are more likely to suffer a disadvantage due to childcare responsibilities than men. The childcare disparity had been noted in court for many years and fell into the category of matters that a Tribunal should consider where relevant.[130]In Hughes [2021], the EAT held that the consideration of whether a PCP had been applied to Miss Hughes had not been identified as an issue between the parties. The Tribunal had been wrong to find that Progressive Support had not imposed the PCP of requiring her to work allocated hours, and to accept Progressive Support’s suggestion that if she could not so return, she would have been required to move to a zero-hour contract.[131]In Mallon [2023], Mr Mallon, who suffered from Dyspraxia, had been dismissed eight months earlier during a probationary period with Aecom Ltd, applied for a role with the same team and requested an adjustment to avoid filling in an online form. He complained to the Tribunal that the online application for a role process was a provision, criterion or practice (PCP) that put him as a person with Dyspraxia at a substantial disadvantage, arguing that the employer should make reasonable adjustments under ss 20 & 21 of EA 2010. The EAT held that there were no errors in the Tribunal’s findings of fact that Aecom Ltd knew on the facts in that case that the claimant had dyspraxia with consequent problems with written communication and should have made what had been identified reasonable adjustments for him regarding the online job application process.[132]In Miller [2024], Mr Miller was employed as a pest control technician. He was subsequently diagnosed with Multiple Sclerosis, and Rentokil concluded after a period that it was no longer viable for him to continue in that role. Following an unsuccessful interview and written tests for a (non-field) Service Administrator role, he was dismissed following a capability meeting. Mr Miller brought claims including both s. 15 EqA discrimination arising and ss 20& 21 EqA reasonable adjustment. On the evidence before it, the Tribunal upheld the reasonable adjustment claim on the basis that it would have been a reasonable adjustment to transfer Mr Miller into that role for a trial period. The EAT noted that the proposed step does not have to be guaranteed to work, citing authority ‘The only question is whether it is reasonable for it to be taken’. The EAT set out at paragraph 36 “ is then open to the tribunal to consider whether, in the given case, the proposed trial period in another particular role would remove the risk of dismissal, or had sufficient prospects of averting dismissal, such that it was reasonable for the employer to be expected to take that step. Thus, I conclude that there is no rule or principle of law that a trial period in a new role cannot, in law, be a reasonable adjustment. Conversely, a tribunal is not bound in every case where the employee was facing dismissal, to conclude that the employer ought to have given them a trial period in a particular other role. Whether or not it ought reasonably to have done so is a matter for the appreciation of the tribunal, taking account of all the circumstances, including the suitability of the role, and the prospects of the employee succeeding at the role and passing the trial.”. (emphasis added) In Miller, Mr Miller had faced what the EHRC 2011 Code at Chapter 19 identifies as dismissal by reason of capability.[133]The EAT in Miller in summary held that if the PCP and the substantial disadvantage are shown, and the knowledge requirements are met, and the employee identifies a role that the Tribunal finds could potentially have been considered appropriate and suitable, then the burden may pass to the employer to show that it was not reasonable to have put the employee into that role, or to have done so at least on a trial basis. The EAT set out at paragraphs 19 and 35-36: 19. In its much-cited decision in Tarbuck v Sainsburys Supermarkets Limited [2006] IRLR 664 the EAT (Elias P and members) held that a failure by the employer to consult the employee about reasonable adjustments could not, in itself, be a breach of the duty. At [71] it said: “The only question is, objectively, whether the employer has complied with his obligations or not. That seems to us to be entirely in accordance with the decision of the House of Lords in Archibald v Fife Council [2004] ICR 954. If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee.” …35. In my judgment, and in respectful disagreement with that passage in Rowan, offering an employee a trial period in a different role, in the way that the tribunal in the present case considered the respondent ought reasonably to have done, is not, for the purposes of this statutory test, analogous to consulting the employee or seeking a medical report. Neither of those things, in or of themselves, involves any change to an employee's substantive terms, working conditions or arrangements. By contrast, putting an employee into a new role on a trial basis does. It effects a substantive change in what they are doing, though it remains to be seen how it will work out, and how long it will last.36. Further, where, as in this case, the substantial disadvantage is that the claimant is at almost certain risk of dismissal, it is then open to the tribunal to consider whether, in the given case, the proposed trial period in another particular role would remove the risk of dismissal, or had sufficient prospects of averting dismissal, such that it was reasonable for the employer to be expected to take that step. Thus, I conclude that there is no rule or principle of law that a trial period in a new role cannot, in law, be a reasonable adjustment. Conversely, a tribunal is not bound in every case where the employee was facing dismissal, to conclude that the employer ought to have given them a trial period in a particular other role. Whether or not it ought reasonably to have done so is a matter for the appreciation of the tribunal, taking account of all the circumstances, including the suitability of the role, and the prospects of the employee succeeding at the role and passing the trial. (emphasis added).[134]In Kennedy [2024], the EAT held that a Tribunal had been entitled to find a claimant’s dismissal for redundancy was unfair. That is not an issue before this Tribunal. Comparator[135]In Shamoon v Chief Constable of the RUC [2003] IRLR 285 (Shamoon), in the House of Lords, Lord Nicholls said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground, or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than that afforded to another. The comparator, where needed, is required to be a person who does not have the protected characteristic, but otherwise, there are no material differences between that person and the claimant. Discussion and decision[136]The Tribunal has taken into account the EHRC 2011 Code of Practice where it appears relevant to do so. Procedural matters arising in submissions Matters of fair notice[137]It is essential that the claimant identify the relevant comparator(s) relied upon, whether actual or hypothetical. It is essential that the claimant does so clearly, so that the respondent knows the case they have to meet, and so that the Tribunal clearly understands what evidence is relevant to the case it has to determine. Reference is made to Chandok above.[138]While the ET1 was not adjusted, the Tribunal considers that the List of Issues is appropriate read together with the ET1 to provide appropriate fair notice.[139]Comparator: While ss20 & 21 EqA (unlike s13 EqA) do not require that a comparator be identified, the claimant had not, prior to the hearing, given notice that Ms Green was to be relied upon as a comparator. The only comparator for which notice is given is a hypothetical comparator in relation to the s 13 EqA claim in the List of Issues.[140]While the Tribunal recognises that the claimant represented herself at the hearing, it is important that where a comparator is to be relied upon by a claimant, the claimant gives notice of the same, in order that the respondent knows the case that it must meet; there may be relevant evidence around an individual who is asserted to be comparator which a former employer may have. In the current claim, there had been no prior notice that the claimant would propose Ms Green as a comparator. The respondent, in written submissions, argues that there is insufficient evidence to accept Ms Green as a comparator. Trial appointment to roles[141]The Tribunal has had regard to the 2011 EHRC Code. Chapter 19 of the 2011 EHRC Code, Dismissal for Reasons of Capability and Conduct, at paragraph 9, describes considering the transfer of the worker to a suitable alternative role.[142]In Miller, Mr Miller was facing what the EHRC 2011 Code, as Chapter 19, identifies as dismissal by reason of capability.[143]Standing the application of the 2011 EHRC Code, where an employee is facing dismissal by reason of capability, it may be unnecessary to give what otherwise may be argued to be required fair Chandhok notice, that the employer faces an argument that an employer ought to have given consideration to a trial period. However, the Tribunal observes that the EHRC 2011 Code does not provide for an equivalent provision as seen in Chapter 19, paragraph 9 for Recruitment 16 or indeed in Chapter 17, absent capability dismissal.[144]There was no fair notice in the ET1, taken together with the List of Issues, that the claimant would argue she ought to have been provided with a trial position in any role for which she applied.[145]For the sake of completeness, the Tribunal notes that the claimant did not propose in her Grievance nor Appeal that she ought to have been offered a trial.[146]More significantly, it was not put to any of the respondent witnesses what a trial for any of the five roles would look like or how it would operate.[147]The offering of a trial appointment, including; it not having been explored what a trial would look like and over what period, in all the circumstances on the factual matrix in this case, does not amount to a reasonable adjustment within ss20 & 21 EA 2010, having regard to Miller, to which the claimant refers at paragraph 98 of the claimant’s Final Written Submissions.[148]The Tribunal concludes that there is no evidence before the Tribunal, in all the circumstances, including the claimant having previously unsuccessfully applied for the Range Analyst role a year earlier, as set out in her email on 26 June 2024 to Ms Keedle, the terms of the June 2024 CV and the claimant’s subsequent employment, that demonstrates the claimant would have been likely to pass any trial and succeed in any of the roles if the respondent had considered it able to offer the same, in response to a request or otherwise.[149]As set out in the claimant’s email of 4 July 2024 at 2.57 pm to Ms Bowes, it was the claimant’s belief that the respondent “must try and help me find a suitable alternative position within the business and there an interview would be granted regardless of being 100% suitable” and in “an effort to reduce the number of redundancies, there should be a hold on recruitment externally and every effort should be made to fill the position internally, which may, of course, result in hiring someone who is not 100% suitable”.[150]The Tribunal is not satisfied that it was reasonable in all the circumstances for the respondent to take that step having regard to the full terms of the claimant’s provided June 2024 CV, including what the claimant described a “proficiency” in the use of the common Microsoft software spreadsheet tool Excel without further explanation as to its application and or level of skill of same, the respondent in taking such step would potentially incur financial and other costs in appointing the claimant without competitive interview for a trial period and in each role the Tribunal is satisfied would potentially create unreasonable risk of disrupting the respondent commercial activities notwithstanding the respondent resources as a significant UK retailer.[151]In all the circumstances, including having regard to the 2011 EHRC Code, the Tribunal is not satisfied on the available evidence that it was reasonable for the respondent to take the step of offering a trial role in any of the 5 roles applied for. Documents[152]The respondent Disability Redeployment Policy and, in particular, the first page was spoken to by witnesses, including the claimant. That expressly identified (via hyperlink, although not operating on a hard copy of the bundle) that the respondent had a Guide to Reasonable Adjustments.[153]The separate Guide to Reasonable Adjustment was not provided in the Bundle, nor was there a request to add the same into the Bundle during the hearing, unlike the MyHR Screenshot, which the respondent provided after the adjournment of the evidential hearing to June on that matter being raised by the claimant.[154]At the time of the adjournment in May 2025, the respondent had sustained a cyber-attack impacting access to the respondent's systems.[155]The Tribunal has considered the terms of Rule 41 of the 2024 ET Rules.[156]The claimant in written submissions (at paragraph 155) provided an extract which set out “If you’re disabled, under the Equality Act 2010 we’ve got a responsibility to make reasonable adjustment to your role or working any barriers that get in the way of your doing your job. In the recruitment process we also have a duty to make any reasonable adjustments you need to remove any disadvantage you may have in the process compared with non- disabled applicants”. .. As soon as we think you might need an adjustment, we’ll talk to you to find out what you need You can suggest possible adjustments that you think might help but don’t worry we don’t expect you to know all of the possible adjustments that can be made.”[157]The claimant in written submissions (at paragraph 158) described the Guide to Reasonable Adjustment policy as hidden.[158]The Tribunal further notes the terms of the List of Issues as set out in the January 2025 PH Note; pages 7 to 9, and the Orders; including 3 a. and 3 b.[159]While the Guide to Reasonable Adjustment was omitted from the bundle and not otherwise provided by the respondent representative during the hearing, the document from which it was identifiable, the Disability Redeployment Policy, had been put to witnesses, including the claimant.[160]The claimant was able to identify both the Guide to Reasonable Adjustments and the content for the purpose of written submissions. The Tribunal considers that it would have been open to the claimant to raise the issue during the hearing in order to establish whether the Guide to Reasonable Adjustments could be provided in the course of the hearing, including during the evidential hearing break, including by seeking the respondent’s provision of same during the hearing in order that the wording could be put to witnesses to the extent that reliance is placed on same.[161]The Tribunal, while having regard to Rule 41 of the 2024 ET Rules of procedure, notes that it was not provided to witnesses, and while no issue is raised by the respondent in written submissions as to the claimant’s reference to the same in submission. The Tribunal concludes that the wording does not materially impact the Issues for this Tribunal as identified in the January 2025 PH Note, having regard to the List of Issues identified in respect s20 & 21 EA 2010 at page 7 to 8 (the Schedule to the January 2025 PH Note) for which notice is given, no prior issue having raised paragraph 12 of the January 2025 PH Note refers. Discussion and decision[162]The childcare disparity, as outlined in Dobson, is recognised in the current case without the need for statistical evidence.[163]Status is addressed below under both s13 EqA and separately ss 20 & 21 EqA reasonable adjustments, standing the respondent's limited concession February 2025 email to the effect that the condition of Autism Spectrum Disorder is in this instance a qualifying condition for the purpose of s 6 EqA, while disputing that they had knowledge at any relevant time. Direct Discrimination[164]The List of Issues in relation to Direct Discrimination – s13 Equality Act 2010 provides that the questions are: 1. Did the respondent subject the claimant to less favourable treatment (i.e. did the respondent treat the claimant less favourably than it treated or would have treated others (‘comparators’) in not materially different circumstances) by failing to offer her an interview for 4 roles which she applied for? The claimant relies on hypothetical comparators 2. If so, was this because the claimant is a disabled person[165]It is considered appropriate to take these questions together. It is not in dispute that the June 2024 CV contained the June 2024 CV Autism Impact Explanatory Statement.[166]The claimant set out in the July 2024 Grievance, at paragraph 8, a concise summary of her applicable skillset, which she had not provided in her June 2024 CV.[167]The claimant further expands on the relevant skill set in the Appendices to her Written Final Submissions; Appendix 1 for the Capacity Planning Administrator role, Appendix 2 Assistant Markdown Analyst and Appendix 3 Range Analyst.[168]The claimant did not tailor the June 2024 CV to reflect the specific respondent advert in each application, drawing the respondent's attention to how she would approach each “What you’ll do” in the advert and how she considered she was suited to each specific role.[169]While the claimant, in the June 2024 CV, described that she “thrive on working with data and have a great attention for detail”, she did not tailor her CV to reflect each advert: 1. Assistant Markdown Analyst role, to show what actual experience the claimant had working with and applying Excel, and while she described a meticulous attention to detail, great analytical skills, and experience in working with, interpreting and manipulation of data she did not set out a clear indication of the ability to learn and understand new systems, such as SAP, as identified in the advert. 2. Business Process Partner role, while describing that she also had great analytical skill and experience in working with interpreting and manipulation of data, she did not address the operational understanding with the ability to link processes and impacts (also reflecting the second paragraph of the advert), as identified in the advert. The claimant, in her email on 4 July 2024 at 2.57 pm (page 235), did not dispute the factual analysis set out by Ms Bowes; rather, she expressed the view that an interview would be granted regardless of, as the claimant described in her 4 July 2024 “not being 100% suitable.” The claimant did not dispute Ms Bowes' analysis that SAP was a requirement for the Business Process Partner role. 3. Capacity Planning Administrator role, the claimant did not set out what actual experience the claimant had working with and applying Excel and Access, as identified in the advert. While her CV described “proficiency in all areas of Microsoft Office, including”, the claimant omitted specific reference to the use of the Microsoft Access database tool or any experience in applying the same. 4. Range Analyst role, the claimant did not set out what actual experience the claimant had working with and applying Excel, reflecting the advert describing they were looking for strong Excel skills, nor referenced the use of pivot tables or formulas as set out in the advert, nor made specific reference to the application of VLOOKUP and/or macros in Excel. 5. Space Insight Analyst. The List of Issues describes for s13 EqA Direct Discrimination “failing to offer her an interview for the 4 role..”, While the claimant was offered an interview, the Tribunal considers in all the circumstances, including the assertion at paragraph 225 of the claimant’s submission, appropriate to comment on same. The claimant's June 2024 CV does not set out what actual experience the claimant had working with and applying Excel, reflecting the advert describing they were looking for Intermediate Excel skills, with confidence in using different formulas, statistical tools and graphics. The respondent decided to offer the interview along with 3 other candidates because Ms Darkin raised the claimant being at risk of redundancy in her 27 June 2024 email to Mr Harrison.[170]The claimant, as she described to Ms Keedle on the same day as she submitted the 5 applications, applied for both Assistant Capacity Planner and Assistant Markdown Analyst roles as she read at the top of the adverts, a reference to #Step-Up, a respondent initiative to encourage existing employees to apply for roles within the organisation. That initiative, however, did not remove a reasonable expectation on the part of the respondent that candidates identify their relevant skills by tailoring their CV to reflect the role for which they applied.[171]In the claimant's email of 10 July 2024 9.22 am, the claimant criticised the respondent's reference, in the context of declining to offer an interview for Capacity Planning Assistant role to Head Office, describing that she “never thought I’d need to put such a location in my CV” and that she is “extremely experienced in Excel as other systems”. The term “extremely experienced” is not how the claimant chose to describe her position in her June 2024 CV, which simply states “proficient”. The claimant, in short, had not tailored her CV for the Capacity Planning Assistant role, and while the hybrid role was identifiably operating out of the respondent's Head Office in Manchester, she had not identified the level of her experience in Excel beyond a generic “Proficient in all areas of Microsoft Office, including Excel, Word and PowerPoint, InDesign,” in her CV.[172]There was no obligation on the respondent to read into that phrase the level of Excel they required. Each decision maker reviewed the CV.[173]As Ms Bowes described to the claimant in her email of 4 July 2024, “when applying for roles to think about tailoring your CV to the job you are applying for, focusing and highlighting those skills that are mentioned in the advert.”[174]While the claimant’s June 2024 CV described proficiency in all areas of the commonly available Microsoft Office suite range of tools including Excel, the claimant did not tailor her CV in any of her five applications to focus on any identifiable aspects of each Job Role from the respondent's advert for the role including have regard to the “role would suit people who have” aspect of each role.[175]While the claimant pointed to Access being a well-known Microsoft (database) tool within the widely available Microsoft Office suite of tools, the Tribunal declines to be critical of the respondent for not reading into the claimant's omission in her CV, of an identified skill in the Assistant Capacity Planner, that she had such experience[176]The decision maker in relation to recruitment for each role varied: 1. Assistant Markdown Analyst role, the hiring manager, Mr Philips Hargreaves, reviewed the claimant’s CV post the Screening Stage but did not identify in what way and to what level the claimant had utilised the Microsoft Excel spreadsheet program and declined to interview. 2. Mr Hargreaves declined to progress the claimant’s application for the Assistant Marketing Analyst role, for reasons unrelated to the claimant having the qualifying condition identified in the claimant’s June 2024 CV and screening questions. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances. 3. Business Process Partner role, Ms Stephanie Buckingham Advisor within the respondent’s Talent Acquisition and Development Team, rejected the claimant’s application from review of screening process including the CV, reflective of the claimant’s responses to screening questions, specifically, a lack of experience with a non-Microsoft data processing program SAP, which was identified in the respondent's advert for the Business Process Partner and in the Screening Questions for that role. 4. As set out by Ms. Darkins in an email on 4 July 2024 at 9.52 am, the claimant’s CV was reviewed by Ms. Buckingham as recruitment manager for the Business Process Partner role, because Ms. Darkins had requested she review the June 2024 CV as the claimant was at risk of redundancy. Ms Buckingham declined to progress the claimant’s application for the Business Process role, for reasons unrelated to the claimant having the qualifying condition identified in the claimant’s June 2024 CV and screening questions. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances. 5. The claimant was not selected for interview by Ms. Buckingham for the Business Process Partner role, as on review by Ms. Buckingham of the claimant’s June 2024 CV, the claimant had not demonstrated that she met the respondent's expectations as set out in the advert, including “looking to improve the Business SAP End to End processes continuously.” In the claimant’s responses to Screening Questions, which included the question on whether the claimant had experience working with SAP, the claimant confirmed she did not. 6. Ms. Buckingham declined to progress the claimant’s application for the Business Process Partner role, for reasons unrelated to the claimant having the qualifying condition identified in the claimant’s June 2024 CV and responses to Screening Questions. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances. 7. Capacity Planning Administrator role, the hiring manager, Mr Chris Lawson, reviewed the claimant’s CV post the Screening Stage but could not identify in what way and to what level the claimant had utilised Microsoft Excel and declined to interview. 8. Mr Lawson declined to progress the claimant’s application for the Capacity Planning Administrator role, for reasons unrelated to the claimant having the qualifying condition identified in the claimant’s June 2024 CV and screening questions. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances. 9. Range Analyst role, the fixed-term contract role, the hiring manager was Ms Jennifer Oldroyd, who concluded in relation to recruitment that given the short-term nature of the role and notwithstanding the advert describing “be trained to set up and deliver range reviews using our ranging software” that it was not practicable to offer to interview the claimant as someone who, from the CV would require training. 10. Ms Oldroyd had reviewed the claimant’s CV for the Range Analyst role, and as Ms Darkins set out in her email on 3 July 2024 (the respondent's communication of 3 July 2024 declining to progress the application for the Range Analyst role) to the claimant, the respondent was not satisfied, from review of the claimant’s CV by Ms Oldroyd the recruitment manager for the Range Analyst role, that the claimant met the requirements reflective of the advert for that role, for the reasons set out in the email. While they were looking for someone with strong analytical skills along with experience of working with and interpreting large data, it was not evident to Ms Oldroyd, the recruitment manager for the Range Analyst role, from her reading of the claimant’s June 2024 CV that the claimant had experience of working with and interpreting large data sets. 11. Ms Oldroyd, the recruitment manager for the Range Analyst role, declined to progress the claimant’s application for the Range Analyst role, for reasons unrelated to the claimant having the qualifying condition identified in the claimant’s June 2024 CV and the screening questions. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances. 12. Space Insight Analyst role, the hiring manager, Mr Alan Harrison, interviewed the claimant following the intervention, at the Screening Stage, of Ms Sarah Darkins, Advisor within the respondent’s Talent Acquisition and Development team (which is known as TAD), who was aware that the claimant was at risk of redundancy as set out in Ms Darkins' email of 27 June 2024 at 7.51 am. Ms Darkins did not need to identify the claimant’s qualifying condition to Mr Harrison, as it was set out in the June 2024 CV Autism Impact Explanatory Statement, which was reviewed by Mr Harrison for the interview. The claimant was one of 4 candidates interviewed; she was one of 3 who were not offered the role after the interview. Mr Harrison, following the interview of the claimant and the other candidates, declined to appoint the claimant, in preference to an individual who was already in the role on a temporary seconded basis, who demonstrated the statistical focus Mr Harrison was seeking. The respondent did not treat the claimant less favourably than it treated or would have treated a hypothetical comparator, that is, a non-disabled individual in not materially different circumstances.[177]IT is the Tribunal's conclusion that a description that a candidate is proficient in the use of the commonly available spreadsheet Excel within the Microsoft Office suite of products does not offer any meaningful insight to a potential employer regarding how and to what level Excel was operated. A reasonable possible employer in a competitive recruitment exercise is entitled, without further enquiry, to disregard a CV application from a candidate who has not provided sufficient clarification information.[178]There is no obligation on a prospective employer seeking to recruit for a role to inquire about possible candidates where information is not provided by the candidate, nor to identify what additional relevant information could have been provided.[179]There is no obligation on an employer conducting separate recruitment exercises to provide individualised feedback to unsuccessful candidates, absent a request.[180]The claimant, at paragraph 115 of her written submission, argues that Ms Green is her relevant comparator, in that she applied for a role without a CV and was offered an interview, and was contacted several times by email and phone to reschedule the interview. The List of Issues identified that the claimant gave notice that she relied upon a hypothetical comparator. Neither the claimant’s ET1 nor the List of Issues gave any notice that the claimant sought to rely upon Ms Green as an actual comparator. Ms Green did not propose that she applied for the same roles as the claimant. There was no evidence before the Tribunal regarding the specific technical requirements of the role for which Ms Green applied and whether they were comparable to the roles which the claimant applied for, there was documentation such as copies of her application, the invitation, and its responsibilities, beyond the indication in her evidence that Ms Green, a former Member Pioneer, was offered a role without providing a CV and was emailed and telephoned in relation to her interview with the date being rescheduled several times. In all the circumstances, the Tribunal declines to accept Ms Green as a relevant comparator. Reasonable Adjustments (for disability)[181]The List of Issues provides in relation to ss 20 & 21 Equality Act 2010 that the “provision, criteria or practices (PCPs) relied on by the claimant is did the respondent have a PCP of informing individuals that their job is at risk of redundancy in a scripted Teams call, with multiple attendees and no opportunity for follow-up discussion or clarification?”[182]It is not considered to be in dispute that the respondent announced on 5 June 2024 via a scripted remote simultaneous announcement to all those in attendance and affected that all Member Pioneer roles (within the respondent organisation) were at risk of redundancy, with multiple attendees.[183]The second part, however, is “and no opportunity for follow-up discussion or clarification”.[184]The respondent did not fail to give any opportunity for follow-up discussion or clarification. The respondent offered the claimant the opportunity to engage with Ms Keedle as the one-to-one manager allocated to the claimant, which the claimant accepted. Ms Keedle made email contact the following day on 6 June, offering One-to-One meetings, which the claimant attended on 11 and 25 June. There was, what the Tribunal considers, amounted to follow-up communication between the claimant and Ms Keedle on 6, 11 and 26 June & 4, 9, 10, 11 and 18 July, with the claimant declining the opportunity for further One-to-One on 19 July 2024.[185]The follow up question is “if so”; did that PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that she processes communications differently and required follow-up support or contact, so that she could properly process and understand the implications of what was said on the call.[186]Given the Tribunal’s conclusion to the first of the questions for ss. 20 & 21 EqA on the List of Issues, the answer to that question is also no.[187]However, the Tribunal has also considered the next question: If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage?[188]This question hinges on the issue of knowledge, whether actual or reasonably assumed.[189]The Tribunal recognises that this is an area of factual dispute. The Tribunal notes that claimant’s July 2024 Grievance Form identified that Ms Denton was her Line Manager, and while ticking the box bullying/harassment/discrimination did not describe knowledge beyond stating at conclusion “I am also an Autistic adult which I have identified on my CV and think that this has also been used to discriminate against me.”[190]In the August 2024 Grievance Meeting Notes, while the claimant describes on page 6 that “… I am autistic. It also means that I have incredibly great analytic skills. I scrutinise every piece of information given to me, and autistic people can juggle figures and information in our sleep… I may not have used the skill professionally, but I do have he skill…”, she does not describe any prior knowledge on the part of the respondent.[191]In the August 2024 Grievance Appeal Form responding to respondent Point 6, “You believe that as an adult with autism, you were treated differently. I have found, nor did you provide, any evidence to support this claim.”, the claimant described that “… I believe that the Talent Acquisition Team had no intention of reading my CV thoroughly and considering me for any position after they had seen the word 'Autistic”. I would have expected that an organisation like this would have been more likely to interview someone with a disability they were overcoming rather than disregarding them”. The claimant concludes, in the second last paragraph of the Grievance Appeal Form, “Please be advised that I have sought legal guidance as I know I have been discriminated against…”[192]Nowhere, including in her ET1, does the claimant propose that the respondent had knowledge of the qualifying condition before the provision of the June 2024 CV.[193]The respondent ET3 at Particulars of Response at bullet point 1 identified that the claimant had failed to set out the specific condition, and at bullet point 3 provided that until such time as the claimant provides … requested documents, the Claimant’s disability status remains in contention by the respondent and its Headline Defence, so far as relevant, was that the respondent denied that the claimant was discriminated on grounds of disability as alleged or at all.[194]Subsequently, parties attended the case management Preliminary Hearing in January 2025, and the January 2025 PH note was issued to the parties.[195]The respondents issued amended Particulars of Response 26 February 2025, in the context of the Tribunal Note, set out its Headline Defence, so far as relevant, that the respondent denied that the claimant was directly discriminated against on grounds of disability as alleged, or at all and further denied that they failed to make reasonable adjustments, as alleged or at all.[196]The respondent's limited concession February 2025 email, while setting out that the respondent accepted that the claimant had the relevant qualifying condition of autism, expressly set out that no concession was made as to knowledge.[197]While it was the claimant’s honest recollection in the hearing that she advised her line Manager, Ms Shirley Denton, in around March-April 2024 of the diagnosis, this is not reflected in the Grievance, the Grievance Hearing, the Grievance Appeal or indeed the Grievance Appeal. While the claimant is critical of the respondent not calling Ms Denton her manager, the claimant was aware from the January 2025 PH Note that the respondent had not proposed to call Ms Denton. The claimant, who knew that knowledge of disability was in dispute, did not intimate to the Tribunal that Ms Denton was a relevant witness to the fact.[198]Having regard to the balance of contemporary documentation, the Tribunal concludes that the claimant is mistaken in her honest but mistaken recollection that she advised the respondent of her Autism Spectrum Disorder prior to the provision of the CV and response to screening questions.[199]The Tribunal notes the parties' respective positions on Ms Whittle’s evidence; however, Ms Whittle did not give evidence that the claimant’s condition of Autism Spectrum Disorder was known to her colleagues before or at the time of the 5 June 2024 announcement.[200]The Tribunal concludes that the respondent was not aware, and on the evidence, could not reasonably have said to have been aware that the claimant had the qualifying disability before its receipt of the June 2024 CV and the Screening Question; there is no evidence from which it can be said that the respondent ought to have been reasonably aware of same prior to same.[201]It is unnecessary to consider the remaining questions set within the List of Issues for sections 20 & 21 EqA. Further comments in relation to reasonable adjustments[202]The June 2024 Macro Space Insight Analyst Role Invite invited the claimant to contact Ms Darkins regarding any reasonable adjustments the claimant may have considered were appropriate for the Macro Space Insight Analyst Role interview.[203]The claimant at paragraphs 204 and 205 of the claimant Written Submissions criticises what she describes as the absence “of reasonable adjustments” and “the Respondent’s failure to offer and implement reasonable adjustments and therefore placing the Claimant at a substantial disadvantage…” .[204]At paragraph 206 of the claimant Written Submissions the claimant proposes that “the Respondent had the power and means to postpone the decision of successful candidates in the 5 roles and offer the Claimant an interview as a reasonable adjustment given that she had brought to light (in the form of the Grievance itself) that she did indeed meet the minimum requirements for the roles. Instead, the Respondent chose not to see the discrimination.”[205]However, while the claimant criticises Mr Hay’s invitation to the Grievance Meeting via Teams on 30 July 2024, the claimant agreed, describing the proposal as perfect. The claimant did not suggest any reasonable adjustment in response to Mr Hay’s formal invite communication of 2 August 2024, which explicitly invited the claimant to identify any reasonable adjustments. Taking into account the terms of the June 2024 CV and the brief reference to paragraph 10 of the claimant's grievance, there was no requirement to assume that, in the absence of any request made in response to the letter of 2 August 2024, to make an adjustment to the Grievance meeting.[206]While the claimant including at paragraph 179 of the claimant's Final Written submission, set out that the respondent “failed to make reasonable adjustment for disabled and neurodiverse employees”, claimant had not proposed the implementation of any actual reasonable adjustment in the process from the date of the knowledge in the relevant job application process despite the wording within the Adverts (Building a diverse environment) and the respondent’s Candidate Preparation Guide (The Interview) 4 Adjustments.[207]Nor does the claimant set out identifiable reasonable adjustment in submissions beyond generalised criticism, at paragraphs 192 to 196 of the claimant’s Written submission that the respondent failed to make reasonable adjustments to the effect that the respondent operating in a competitive retail market could have offered a “trial period in any of the 5 positions applied as a reasonable adjustment” and or “could have offered an interview for each role as a reasonable adjustment”. The Tribunal observes that there was no prior written notice, either in the ET1 or in The Issues, that the respondent was to face such an assertion. The Tribunal is not satisfied that the respondent was required to offer an interview as a reasonable adjustment for any applicant with a qualifying disability, such as the claimant. To impose such a requirement would create an obligation on an employer operating in a commercial environment that is not proportionate.[208]In relation to the Space Analyst role, the claimant is critical (at paragraph 161 of the Claimant Final Written Submission) that Ms Darkins did not set out that the claimant had a qualifying disability in her communication to Mr Harrison. The Tribunal observes that the June 2024 CV Autism Impact Explanatory Statement set out clearly at the start of the CV what is accepted as the claimant's qualifying disability and the impact.[209]Ms Darkins did not omit to draw attention to the same, for the suggested reason that she had overlooked that part of the Personal Statement. Ms Darkins omitted reference as it was unnecessary to draw attention to the June 2024 CV Autism Impact Explanatory Statement, as set out in the claimant’s June 2024 CV; it was reasonably anticipated that the June 2024 CV would be read by MR Harrison. Mr Harrison did, in fact, read the June CV 2024.[210]It is the Tribunal's conclusion that it was entirely unnecessary for Ms Darkins to draw attention to what the claimant clearly set out within the third paragraph of her Personal Statement at the top of page 1 of the June 2024 CV. Indirect sex discrimination s19 Equality Act 2010[211]The PCP of which the respondent had notice is “that interviewees should provide examples of relevant experience within the last 2 years”.[212]The claimant relies, at paragraph 208, of her Written Submission on wording within the respondent Interview Pack, sent to interview candidates including the claimant, which advises “examples should be from the last 2 years so that you can recall them clearly, however you may go further back into your career for a suitable example if you need to”.[213]The wording, while suggesting that an example “should be” within the last 2 years, expressly explains that the context is that “so you can recall them clearly”, this is further qualified by the phrase “however you may go back further back into your career for a suitable example if you need to.”[214]The respondent denies that such a PCP applied, proposing that it was merely a preference based on the full wording. At paragraph 91 of their written submission, the respondent submits that if it is deemed to be a PCP, it was a proportionate means of achieving a legitimate aim, namely, to recruit the candidate with the best experience, as set out in the respondent's revised Further Particulars (paragraph 55).[215]That, however, is not considered a full response; the best experience may not equate to recent experience.[216]In the circumstances, the Tribunal concludes that there was a PCP that interviewees should provide examples of relevant experience within the last 2 years.[217]The next question, as identified within the List of Issues, is: “If so, did the respondent apply the PCP to the claimant?”[218]The claimant sets out her position on the answer to this question at paragraph 231 of the claimant Written Submission; in the context that it follows paragraph 230 of the Written Submission which the claimant notes that Mr Harrison intimated in cross examination that the claimant has “given a good answer that met the requirements of the questions. She gave a detailed account of projects she headed which she felt was the best example from her long career to answer all points”.[219]At paragraph 232 of the claimant's Written Submission, the claimant notes on questioning in cross-examination if Mr Harrison had asked the claimant for a more recent example (thus applying the asserted PCP), “he confirmed he had not”.[220]In evidence to the Tribunal, Mr Harrison described that the claimant had given a “great example from the past”.[221]The claimant goes on to propose at paragraph 232 of the claimant Written Submission, that “in doing so, he had made the decision to accept “outdated” examples instead of trying to best out of the candidate he was interviewing”, that is not how Mr Harrison expressed his position and is not accepted as a fair characterisation of Mr Harrison’s position in evidence.[222]In short, Mr Harrison did not apply what is said to be the PCP to the claimant. Thus, the s19 EQA claim does not succeed. General comments on submissions[223]Beyond the List of Issues as set out above, the Tribunal has considered the parties' submissions fully.[224]It is recognised that the claimant is unrepresented; the following comments are included for clarity.[225]With regard to the claimant’s supplementary submissions of 22 August 2025, which include a copy of the claimant's communication provided 17 April 2025, the Tribunal notes that, after discussion at the outset of the hearing, the claimant, as she set out in the supplementary submission, “compromised to partial use of video link”.[226]At the outset of the hearing, the claimant, who was supported by her partner initially and subsequently by Ms Whittle, agreed that, broadly, a reasonable adjustment reflective of her accepted qualifying condition that the respondent would seek to limit their remote witnesses to the morning and would seek where practicable including having regard to Tribunal time to have one remote witness per day as reflective of her accepted qualifying condition.[227]It is considered unnecessary to comment further on the procedural history in relation to this matter, including the claimant's comments within the communication previously provided on 17 April 2025, beyond observing that the Tribunal is satisfied that the claimant, who was supported initially by her partner and subsequently by Ms Whittle, was fully able to participate effectively throughout, including in her own evidence and putting such questions as she wished to witnesses throughout.[228]While the claimant is critical, at paragraph 177 of the claimant’s written submission, of the respondent's approach, the June 2024 CV Autism Impact Explanatory Statement that she is an autistic adult and, as such, she processes the world a little differently, did not provide any reason for the respondent to assume that the claimant would find communication extremely difficult.[229]The claimant describes in paragraph 13 of the claimant's written submissions what is said to be a failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. The ACAS code does not require an employer to interview all potential individuals involved in a matter. In this instance, the claimant did not request that Ms Williamson interview anyone. Ms Williamson carried out, so far as relevant, what the Tribunal concludes was a reasonable investigation and was compliant with the ACAS Code. Ms Williamson nevertheless identified broadly issues within the respondent processes, as set out above in her report to colleagues on 18 September 2025.[230]Horn Bias - The claimant, at paragraph 252 of the claimant's written submissions, refers to what she describes as Horn Bias. It is understood that the respondent at paragraph 168 (and claimant supplementary submissions) references an earlier iteration of the claimant's written submission, indicating the claimant's submission written reference to this term is at paragraph 256. It is not a term which exists within either the Equality Act 2010 or the EHRC 2011 code. It is not set out within the List of Issues and was not put to any witness. Whilst it is considered that the claimant in her written submission was seeking to be helpful in her reference, the Tribunal declines to attribute to any witness a term (which is broadly understood to be a criticism) which was not put to that witness to permit them to respond.[231]Socio-Economic Discrimination. While the respondent at paragraphs 103 and 104 of the written submission references what was described as socio-economic discrimination, the claimant's written submissions, as provided to the Tribunal, do not insist on such a claim, beyond a brief reference at paragraph 62 to, in effect, a campaign. The List of Issues does not give notice of any ‘socio-economic discrimination’ claim. The Tribunal further observes that it is a creature of statute, and socio-economic status is not a protected characteristic under the Equality Act 2010.[232]Shifting reasons: The claimant argues (at Appendix 4) of the written submissions that the respondent had shifting reasons for rejection. The Tribunal disagrees; the claimant seeks to compare what was communicated to the claimant with the respondent's agents, who are seeking to provide written notice of the respondent's position in the Particulars of Response, as initially attached to the ET3 and subsequently revised. It is observed that written notice of the claimant's case is set out briefly at 8.2 of the ET1, and so far, as relevant to the List of Issues, is limited to the final two paragraphs. The Tribunal declines to be critical of the respondent, seeking to provide fair notice in greater detail. Where there are some differences in the wording, these are not determinative of matters of fact in all the circumstances.
Conclusion
[233]In relation to the s13 EqA claim, the respondent did not treat the claimant less favourably than it treated or would have treated others (hypothetical non disabled comparators) in not materially different circumstances by failing to offer the claimant an interview for 4 of the roles for which she applied, and the treatment was not because the claimant is a disabled person.[234]In relation to the ss 20 & 21 EqA claim, while the respondent informed multiple individuals in a remote (Teams) call that their jobs were at risk, the respondent did not have a PCP of there being no opportunity for follow-up discussion or clarification. The respondent did not know and could not reasonably have been expected to know that the claimant was disabled at that time.[235]In relation to the s19 EqA claim, while the respondent had PCP that interviews should provide examples of experience within the preceding 2 years, the respondent did not apply that PCP to the claimant.[236]The claimant's claims do not succeed and are therefore dismissed. Date sent to parties _18 September 2025__________ EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8001868/2024 Reconsideration submission hearing in Glasgow sitting as Dundee, remotely via CVP on 6 March 2026 Employment Judge R McPherson Ms K Rooney Claimant In PersonThe Co-operative Group Ltd Respondent Represented by Ms A Bibi - Litigation Executive