Miss I Macdonald v ITS Testing Services (UK) Ltd: 8001973/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001973/2024
Between
Miss I MacdonaldClaimantITS Testing Services (UK) LimitedRespondent
Before
Employment Judge N M HosieMr D Milne (instructed by Counsel) for respondentMr J Wallwork (instructed by Solicitor) for respondentDate 1 July 2025
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.
REASONS
[1]Miss Iona Macdonald brought complaints of unfair dismissal and disability discrimination (discrimination arising from disability, in terms of s.15 of the Equality Act 2010; and a failure to make reasonable adjustments, in terms of s.s.20 and 21). The respondent, ITS Testing Services (UK) Limited (“ITS”), admitted the dismissal but claimed that the reason was redundancy and that it was fair. So far as the discrimination complaints E.T. Z4 (WR) were concerned, ITS accepted that Miss Macdonald was a disabled person in respect of her “profound anxiety”, but otherwise her discrimination complaints were denied in their entirety.[2]So far as her unfair dismissal complaint was concerned, Miss Macdonald claimed that her redundancy was a “sham” and that ITS had not acted reasonably in their conduct of the alleged redundancy process. So far as the discrimination arising from disability complaint was concerned, Miss Macdonald claimed that she was dismissed because of her absences from work due to ill health. So far as the failure to make reasonable adjustments complaints were concerned, these related to a refusal by ITS to allow her to record a consultation meeting; and a refusal to replace the HR representative, Ms Geeta Tak, during the process. A significant part of Miss Macdonald’s case was the manner in which ITS had dealt with an admitted payroll error in March 2024 which Miss Macdonald alleged had impacted adversely on her health.
The evidence
[3]On behalf of ITS I heard evidence from:- Robin Cuthbert, Head of Service at ITS and Miss Macdonald’s Line Manager Ms Geeta Tak, Senior HR Business Partner[4]I then heard evidence from Miss Macdonald and on her behalf from her father, Duncan Macdonald who had attended the consultation meetings with her.[5]A Joint Bundle of documentary productions was also submitted (“P”), along with a Chronology of Events. Observations on the evidence[6]I wish to record, at this stage, as this proved pivotal to my deliberations, that Mr Cuthbert gave his evidence in a measured, consistent, convincing manner and presented entirely as credible and reliable. He was an impressive witness. Miss Macdonald had a number of significant absences from work due to ill health and Mr Cuthbert who was a good friend, was extremely supportive of her throughout her employment, which Miss Macdonald acknowledged. For example, he took her to and from work for a period; arranged regular meetings with her when she was able to return to work; and as Miss Macdonald had concerns about the stress caused to her by working in an open plan office, he arranged for her to work from a desk in his office.
The facts
[7]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact.[8]ITS is in the business of assurance testing and certification. It has a worldwide operation with around 10,000 employees which includes around 200 employees in Aberdeen where Miss Macdonald was employed. The clients of the Aberdeen business are primarily in the oil and gas industry.[9]Miss Macdonald was appointed in 2018 as Training Manager. She was part of the Field Services team providing support and training to the Field Sales team. Her role entailed internal Field Services and “external technical training, development of Intertek’s technical training offering revenue forecasting and growth, development of processes, procedures and manuals.” Miss Macdonald’s contract of employment was one of the documentary productions. (P74-76)[10]There were approximately 80 employees in the Field Services team in Aberdeen. Robin Cuthbert was Miss Macdonald’s Line Manager and he in turn reported to Ross Hyland, the “Site Director”. Miss Macdonald’s absences from work[11]Miss Macdonald was absent from work for lengthy periods in 2023 and 2024 for a variety of conditions but primarily her absences were recorded by her doctor as an acute reaction to stress and stress at home. Details of her sickness absences were produced (P238-241). This records that she was off work due to ill health for 228 days in 2023 and for 32 days in 2024 to 28 May.[12]The respondent’s “Attendance Management Policy” was produced (P80- 90). Miss Macdonald produced “sick lines” in respect all of her absences, ITS obtained a number of occupational health reports and there were a number of “welfare meetings” and return to work interviews. Return to work on 20 February 2024[13]Miss Macdonald was signed off work due to “anxiety/acute reaction to stress”, for a period of 75 days from 7 November 2023 to 19 February 2024. Welfare Meeting on 8 February 2024[14]Before Miss Macdonald’s return she had a “Welfare Meeting” on 8 February 2024 with Ms Geeta Tak, Senior HR Business Partner, and Robin Cuthbert. The following are excerpts from the “outcome letter” (P197-198):- “During the meeting we also discussed how Robin your line manager has really supported you to help you feel better about aspects of your difficulties, and to move towards a return to work. During the meeting we discussed our last welfare meeting in May 2023 when you were on long term sickness and due to return to work on a phased return which Robin supported you with and offered to pick you up and bring you to work as a stepping stone to bring you back to work. I understand this worked for a period and then you went back on sick leave. Your line manager also discussed the option to reduce your hours, reduce some of your work activities and to move you from an open plan office into a shared office to help reduce any form of anxiety this was creating. …………………………………………………………………………… I discussed your sickness record over the last 12 months since you did return to work from your last sickness absence and how well you were doing for a period and then in 2023 you went on long term sickness again for 85 days then an additional 3 days and you came back for a period and then other various sickness days and then long-term sickness again til present.”[15]Miss Macdonald was also referred to the respondent’s Employee Assistance Program (EAP) which provides free support (P198/199). Return to work discussion on 5 March 2024[16]This discussion with Mr Cuthbert recorded that “therapy has been successful in dealing with a number of underlying reasons for the chronic anxiety and managing the stress around family situation” (P200).[17]Also, with Miss Macdonald’s agreement, ITS obtained an occupational health report before she returned (P195-196). The report was discussed at a welfare meeting with Ms Tak and Mr Cuthbert on 12 March. The following are excerpts from the outcome letter (P203-204):- “We also discussed your recent occupational health report dated 23 February 2024. The report advised us of positive responses and pro-active advice for your return to work. We note you have already returned which is great and the report advises that you are fit to resume your duties as normal and no further adjustments at work are required based on the current support and measures already in place via your line manager Robin Cuthbert ……………………….. The report also advised what further support your employer can consider and we understand that you would like to undertake regular welfare meetings with HR/line manager. Robin has agreed to hold fortnightly welfare check in calls with you either face to face or via TEAMs. We will then assess how these go and decide whether we move these to monthly once you have fully settled back into a regular pattern of consistent attendance at work. I also took the opportunity to advise that through 2018 and 2019 you had high-level of sickness absence for other reasons outside stress, anxiety, depression and low mood. The pandemic then happened and you had no absence in 2020. You then had high sickness absence in 2021/2022 for other reasons and in 2023 you were sick due to anxiety and acute reaction to stress. I advised that the organisation decided not to pursue any formal action for historical sickness outside your stress, anxiety, depression and low mood – however if we have any further ‘other’ sickness absence, we will have no choice but to adopt a formal absence management process which could result in possible disciplinary action being considered. During the meeting you were upset by my comments. – I tried to explain this potential future disciplinary action was not related to your mental health but other absence reasoning. I also advised that if you are absent due to your current mental health, I would need to assess this at that point, in relation to your health and wellbeing and to business needs long term.” The payroll issue[18]This proved to be the catalyst for Miss Macdonald’s further absence from work due to ill health.[19]On 2 April 2024, Miss Macdonald sent an email to ITS to advise that there had been an unauthorised deduction of £1,720.07 from her March salary (P206). The relevant pay slip was produced (P134). It was not disputed that this deduction had been made in error. The payroll of the some 2,000 UK employees was administered at that time by a third party and errors were common. Mr Cuthbert produced a “Log” of these (P380).[20]The respondent’s normal practice with such deductions was to arrange for payment to be made in the next “pay run”, the following month. However, the following day, 3 April, Martin Oxer, the respondent’s Senior Payroll Assistant, sent an email to Miss Macdonald to advise that he had requested that the respondent, “make a payment outside of payroll so that you do not have to wait until the end of the month” (P207). However, he also advised her that this was a matter outside of his control.[21]On Friday 5 April 2024, Miss Macdonald sent a reminder by email to the respondent’s Payroll services which was copied to Robin Cuthbert (P211).[22]On Tuesday 9 April at 10:16 Miss Macdonald sent a further reminder to Richard Coupland “UK Payroll & Pensions Lead”, copied to Robin Cuthbert (P.211).[23]Mr Coupland replied at 10:46 as follows: “We are currently investigating this and liaising with our third party provider (Zellis). I have chased this up and will get back to you as soon as possible.” (P210)[24]At 11:02, Mr Cuthbert sent an email to Mr Coupland, copied to Miss Macdonald, to advise that the underpayment had been confirmed and that he expected payment to be made to Miss Macdonald, “without further investigation” (P.210).[25]On Thursday 11 April at 9:41, Miss Macdonald sent a further reminder to Mr Coupland, copied to Robin Cuthbert and Geeta Tak, “begging” for the payment to be made. (P214-215)[26]An attempt to make the payment the previous day had been unsuccessful due to a “technical malfunction”. There was included with the productions copies of communications between Mr Cuthbert and Miss Tak on 11 April about the failed payment. Ms Tak cautioned Mr Cuthbert about advising Miss Macdonald of this (P279). She explained the reason for this was that she did not want to risk stressing Miss Macdonald further.[27]Miss Macdonald sent a further email reminder on 11 April at 12:41 to Mr Coupland, copied to Mr Cuthbert and Ms Tak (P214).[28]On 11 April at 16:20, Ms Tak sent an email to Miss Macdonald copied to Richard Coupland and Robin Cuthbert in the following terms (P214):- “Apologise (sic) for the delay in coming back to you. Richard was actively working on ensuring the payment goes through today. I understand this has now been made. I apologise for the concerns and upset this has given you.”[29]On 11 April at 3:02pm, Miss Macdonald had also sent an email to Anna Thomas, the respondent’s HR Director and Ms Tak’s Line Manager (P218). Miss Thomas requested an update from Ms Tak and Mr Coupland (P218). They both replied shortly thereafter (P217).[30]A Timeline in relation to this matter was produced by the respondent (P277-280). It had taken 8 working days, from when Miss Macdonald advised Zellis (the third part Payroll administrators) of the underpayment, to resolve the matter and 5 working days from when the issue was raised direct with the respondent’s internal payroll department.[31]Miss Macdonald became unwell again on 11 April. She was signed off work due to ill health until 9 May 2024. Welfare meeting on 9 April 2024[32]Shortly before she was signed off, Miss Macdonald had attended one of the fortnightly welfare meetings on 9 April 2024. Mr Cuthbert sent a letter to her that day summarising what had been discussed (P208-209). The following are excerpts:- “You advised that you were feeling okay, and far more resilient than previously, in terms of being able to deal with setbacks. Family concerns will remain a constant, and it was agreed that time away from the office to support appointments where reasonable would be okay. You also mentioned that you had made it clear to your parents that due to work commitments you are not available as and when required to provide support and attend appointments ….. You did mention feeling less vulnerable to feelings of anxiety whilst at work, and that you are better able to recognise how these may manifest – for example, becoming irrationally annoyed or upset is an indicator of rising stress/anxiety. I shall keep an eye out for this and try to help!” Redundancy[33]On 13 June 2024, Robin Cuthbert, Head of Field Services and Miss Macdonald’s line manager, sent an email to Geeta Tak, Senior HR Business Partner, to confirm he had agreed with Ross Hyland, the Site Director and his line manager, “to proceed with a business case to make the role of Training Manager in Aberdeen redundant, a role occupied by Iona Macdonald”. (P241-242)[34]The reason for this, in short, was that during Miss Macdonald’s lengthy absences from work due to her ill health there had been, “no significant impact on the Field Services Pillar”.[35]Miss Macdonald’s role had been covered satisfactorily by the other team member and by Mr Cuthbert himself. As Mr Cuthbert put it when he gave evidence, “there was no detrimental effect on workload. It became evident that the role itself was no longer required.”[36]In support of his decision, he provided in his email details of Miss Macdonald’s absences since 1 January 2023 and, by way of a graph, that there had been, “no downward trend in Revenue”; and who had covered Miss Macdonald’s duties during her absences (P242).[37]He also advised that, “making the role redundant would see a cost saving of £3,349.44 PCM (salary costs), plus on costs”.[38]The discussions between Mr Cuthbert and Mr Hyland about the possibility of making the Training Manager role had been ongoing since January 2024 and yet the issue was not progressed until June 2024.[39]Understandably, Miss Macdonald questioned the timing, the reason for the delay and the motivation for only raising the matter in June. This was an important aspect of the case which went to the respondent’s motivation and required to be considered very carefully indeed.[40]The evidence of Mr Cuthbert in this regard was crucial. He made the decision to progress the matter. As I recorded above, not only was his evidence credible and reliable, he was a good friend of Miss Macdonald and extremely supportive of her.[41]I accepted his evidence that he had regular routine discussions with his line manager, Ross Hyland, about how to make efficiencies and the decision to progress the matter in June 2024 was the “tail end” of several discussions he had with him.[42]He also gave compelling evidence that another reason for the apparent delay was that he was reticent to pursue the matter because of his friendship with Miss Macdonald and it was difficult for him to, “divorce business from friendship”.[43]However, as he put it, the decision evolved over time. It became more and more clear as time went on and his discussions with Mr Hyland became more “in-depth”. Also, the team became more and more proficient. Individuals were put through training and became more “adept” at doing Miss Macdonald’s ork.[44]However, Mr Cuthbert did not have authority to progress the matter himself. On receipt of Mr Cuthbert’s email of 18 June, Ms Tak sent an email to Stefan Eriksson one of the respondent’s Directors to seek his approval to make the Training Manager role in Aberdeen redundant. (P243)[45]She sent him the information she had received from Mr Cuthbert in support of his decision and said this:- “Shown below is some information to support this decision based on the length of sickness absence Iona has had from the business and that the Aberdeen site has covered the training in-house as a team across the field services business. It has been recognised the role is not required in the structure when this can be filled between team members who have experience and knowledge in this space.”[46]Ms Tak explained that Mr Eriksson’s role, was “to make sure there is a genuine business case”.[47]Mr Eriksson, in turn, had to seek approval, at an even more senior leadership level, from the Finance Director, Chris Millwood and from the Chief Finance Officer, Ross McCluskey, who had to be satisfied that there was a “financial business case”.[48]On 2 July 2024, Ms Tak was copied into an email from Chris Millwood to Ross McCluskey who advised that, “A restructure of the Aberdeen field services team, removing the existing Training Manager position, with future training provisions to be delivered by the field services team. Exit costs are expected to be circa 10K and annual cost savings expected to be circa 10K”, had been approved (P248). Claimant’s grievance[49]On 28 June 2024, Miss Macdonald sent an email to Robin Cuthbert and Ross Hyland to intimate that she wished to raise a formal grievance, “in reference to the way in which the vast underpayment of my wages in the March payroll was managed” (P245-246). She maintained that, “there were significant shortcomings in their management of the pay shortfall”.[50]She also complained that, in discussions with HR (Geeta Tak in particular), she “was shocked to have my well-established health condition referred to as ‘suspected’ on numerous occasions”.[51]Lisa McLeod, Finance/Business Support Manager was appointed to hear Miss Macdonald’s grievance. She was supported by Darryn Dixon, HR Representative. Grievance meeting on 9 July 2024[52]Minutes of this meeting were produced (P260-264).[53]Ms McLeod carried out further investigations after the meeting and on 19 July 2024 she wrote to Miss Macdonald, at some length, with the “Grievance Outcome” (P342-349).[54]She found that, “from when the Intertek UK HR Payroll team received your query, the money was paid into your bank account within five working days” and went on to say this (P344):- “My findings concluded that all parties were prioritising your query to find a resolution as quickly as possible. The money owed was paid before the next available pay run, as an out of cycle payment within five working days from receipt of your query. This is instead of applying the typical approach of that time which would have meant you would not have received the funds until May’s payroll; a full month later. I accept that there was a lapse in communication with you on Thursday 11th April 2024, however this was complicated in part due to Robin Cuthbert being on annual leave, who was the point of contact keeping you informed with the updates from both UK HR payroll and Geeta Tak. I further conclude that there could have been better communication around the failed payment on the 10th April 2024, and ideally, an error would not have occurred at all. Overall, I find that your query was dealt with swiftly and to full resolution.”[55]Ms McLeod concluded therefore, that the alleged, “delay in processing payment correct” was “partially upheld” (P345).[56]However, Ms McLeod did not uphold the allegation, “that Intertek UK HR Payroll, Geeta Tak or Robin Cuthbert intentionally, or unintentionally intended you any anxiety.” She said that “I do believe all parties involved took every step possible to resolve the issues as quickly as possible.” (P347)[57]Nor did Ms McLeod find that a further written apology from Geeta Tak was necessary.[58]In summary, she said this:- “The detailed findings of the investigation demonstrate the commitments of the UK HR Payroll teams, as well as those of your manager to ensure that a resolution was found as quickly as possible to mitigate any impact on your health and wellbeing. I can assure you that it is never Intertek’s intention to cause any employee distress, indirectly or otherwise and I believe that the teams did everything they could to support you with issues that arose from circumstances outside of their control.”[59]So far as the allegation that Ms Tak had referred to Miss Macdonald’s health condition as “suspected”, MSs McLeod said this:- “I have investigated this, and my findings suggest that the word used would have been ‘potential’ health issues. Robin Cuthbert confirmed that you were upset during this meeting and advised that he discussed it with you after the meeting. Robin Cuthbert’s view is that there was no intention of malice, and it was an unintentional use of language, not that there was any doubt as to the validity of your health and wellbeing. I have reviewed the evidence I have and could not see any documented meeting notes to suggest language was changed.” (P346)[60]Miss Macdonald did not agree with the grievance outcome but she took no issue with the manner in which Ms McLeod had conducted the grievance process. On 26 July 2024, she sent an email to Miss Macdonald to advise that she had decided not to appeal the outcome. She also expressed her appreciation of the manner in which Ms McLeod and Mr Dixon had conducted the grievance process. (P369) Redundancy consultations Meeting on 3 July 2024[61]Mr Cuthbert and Ms Tak met with Miss Macdonald to advise her that it had been decided to make the Training Manager role redundant and to explain why. Mr Cuthbert’s notes of that meeting were produced (P250) along with the proposed “Team restructure” (P251).[62]On 3 July, Mr Cuthbert wrote to Miss Macdonald to invite her to attend the first consultation meeting on 11 July 2024 (P252). In his letter he confirmed the business reasons for the role being made redundant: “1. We looked at the volume and type of Field Services training undertaken over the last 18 months to 2 years, and the associated income generated. 2. Following a review of current work volumes it has been recognised that the Aberdeen Training Manager role is no longer required or commercially viable. 3. Revenue generating training, internal training and projects have been effectively covered by the Field Services team. 4. Removal of the Training Manager position allows a cost saving to the business. 5. Optimisation of processes and the operation of the new training lab and associated tasks have been and will continue to be managed by the Field Services team. 6. This also allows the team to make better use of existing efficiencies in our systems.” First consultation meeting on 11 July 2024[63]Minutes of this meeting were produced (P293-296). It was conducted by Robin Cuthbert, accompanied by Geeta Tak. Miss Macdonald’s father, Duncan Macdonald, was also in attendance.[64]Ms Tak explained again that, “the business conducted a review of the entire field services where they can make business cost savings and efficiencies. In this case it has been recognised that the Training Manager’s role is not required for the Aberdeen site under field services and this can be managed between the team.”[65]However, this was disputed by Miss Macdonald who said this:- “It’s important for me to say at this time that I do not believe the redundancy is genuine and believe it’s down to my absence and my disability and Intertek are acting in a manner that constitutes discrimination. The reason I say that is because it’s quite obvious, I was back in the workplace and recovering well and the workplace caused me to digress and had I remained in the workplace then this meeting would not be happening and it’s down to me being unwell and down to me raising the grievance around pay. I would also like to add back in Feb or March time when I was back, I had a conversation with Robin about the role being augmented not diminished. In my mind what happened …. I believe I have been off because of the negligence by Intertek.” (P295). Alternative employment[66]Mr Cuthbert advised Miss Macdonald of three possibilities for alternative employment: “Lab Analyst, Water Hygiene and Calibration Technician” (P296). Although Miss Macdonald advised at the time that none of these would suit her, as it transpired the Calibration Technician role was explored further, albeit unsuccessfully.[67]Later that day, Ms Tak wrote to Miss Macdonald with the information which had been requested at the meeting (P.297). Second consultation meeting on 18 July 2024[68]Minutes of this meeting were produced (P332-340).[69]The first part of the meeting was taken up with a request by Miss Macdonald to record the meeting. However, this was refused. Ms Tak did not consider this necessary. It was not the respondent’s normal practice and there was no provision in its policies and procedures for recording meetings.[70]Miss Macdonald advised Ms Tak that her colleague Darryn Dixon had agreed to record the grievance meeting which she attended. However, Ms Tak explained that Mr Dixon had only started to work for the respondent in April 2024. He wasn’t “fully clued up on the respondent’s policies” and she had “spoken to him about that”.[71]There was a tension between Miss Macdonald and Ms Tak at the consultation meetings. Miss Macdonald said that she was, “fearful of having to deal with Ms Tak” as previously she had stated that her ill health was only “suspected”. Further, Ms Tak was involved in Miss Macdonald’s grievance which was being conducted at the same time and she considered it inappropriate, “to have someone directly implicated in a pretty serious grievance against Intertek” (P333). However, this request was also refused.[72]On 23 July, Ms Tak sent an email to Miss Macdonald with a copy of the Minutes of the second consultation meeting. She also told her that, in relation to the role of Calibration Technician, she had contacted “the Hiring Manager” and sent him Miss Macdonald’s resumé. However, he had advised her that, based on Miss Macdonald’s skills and experience, he would not be able to offer her the role as “ they needed a senior experienced Calibration Technician that requires no training into the role due to the demands of the client” (P371).[73]Ms Tak also addressed in her email the request by Miss Macdonald that an alternative HR person be appointed. She said this (P371):- “Request for an alternative HR person as Geeta Tak is impacted in the grievance Iona has placed Firstly, I understand a response has now been provided to yourself to your grievance raised. Secondly, I am the Senior HRBP for the field services contract and have been involved in the business review. Therefore, after careful consideration, there is no reasonable belief of why I should not support the redundancy consultation process. My role is to act in a professional manner and with integrity to support our employees and managers in ensuring that a fair, meaningful and consistent process is followed. I understand this process is a stressful process for you and that you have advised this is affecting your mental health, however I would appreciate if you would try your best not to raise your voice at me in these meetings. I found that on several occasions you raised your voice at me, rolled your eyes at me and smirked at me when all I am trying to do is provide you with the correct information as well as support you as much as I can. I kindly request that you take this into consideration for our next meeting arranged for Friday 2 August 2024.”[74]Miss Macdonald replied by email on 21 July as followed (P370):- “Thank you for the forwarded note. I have been a little late in reviewing the content of the email and attachments due to having other family priorities in the last week. The notes, generally speaking, reflect my recollection of the main content of the meeting. However, your description of events in the meeting, as laid out in the final paragraph of your email does not resemble my recollection of events in any way. I only raised my voice in order to be heard, when you persistently interrupted and talked over me. This did not help in any way to reduce the stress of the meeting (quite the opposite, in fact). My understanding of the process is that it is not only an opportunity for Intertek to clarify contractual detail and provide support, but that it is also an opportunity for me to ask questions. As this is a process that I am subjected to during such a difficult time, I think it is reasonable to expect that I may experience, and express, some dissatisfaction with the situation I am currently in”.[75]At the second consultation meeting, when discussing her request that the meeting be recorded, Miss Macdonald claimed that the Minutes of the first consultation meeting were not accurate. That was the reason why she asked for the meeting to be recorded. Her request was refused. Mr Cuthbert told her at the second consultation meeting that if she wished the Minutes of the previous meeting to be corrected, she should let him know by email (P339).[76]On 19 July, therefore, Miss Macdonald sent an email to Ms Tak, copied to Mr Cuthbert, with three proposed corrections (P350).[77]So far as the first point was concerned, the respondent accepted that Miss Macdonald would have six complete years’ service by the time the consultation process was completed.[78]So far as the second point was concerned, while Ms Tak believed that the Minutes were accurate and she had double-checked them with Mr Cuthbert, it was accepted by Mr Cuthbert that “words to that effect” were used at the meeting.[79]So far as the third point was concerned, Mr Cuthbert could not recall the exact discussion but, so far as he was concerned there was general agreement that none of the available roles were suitable.[80]Miss Macdonald did not challenge the accuracy of the Minutes of the second consultation meeting on 18 July. Final consultation meeting on 1 August 2024[81]Minutes of that meeting were produced (P375-377). As there was no suitable alternative employment, Mr Cuthbert advised Miss Macdonald that she would be dismissed, by reason of redundancy.[82]On 2 August 2024, he wrote to her to confirm his decision (P378-379). The following are excerpts from his letter:- “During the consultation meetings we invited further discussions on the business reasons for your potential redundancy, discussed your consultation period, outplacement support and alternative employment opportunities that were available within the Company. Having reviewed the above with you, and after giving you the opportunity to make representations and for any representations to be considered, and due to the fact that we have been unable to identify a means of avoiding redundancy or to identify a suitable alternative role for you within the organisation a decision has been made to confirm that your role is no longer required. Therefore it is now with regret that I write to confirm that we are formally giving you notice of redundancy where your role will be terminated on the 2 August 2024, by reason of redundancy as outlined in the business case presented on the 3 July 2024.” Appeal[83]Miss Macdonald did not appeal against her dismissal. Respondent’s submissions[84]Counsel made oral submissions. He did so, with reference to a List of Issues (P56-60). The following is a brief summary. Reasonable adjustments[85]In support of his submissions in this regard he referred to:- Secretary of State for Work and Pensions v Alam [2010] ICR 665 (at para 17) The Royal Bank of Scotland v Ashton [2011] ICR 632 (at paras 13-15)[86]Miss Macdonald relied on two PCPs: the refusal to allow the second consultation to be recorded; the refusal to allow an alternative HR official to deal with the redundancy consultation (P48 and P56).[87]Counsel submitted neither of these amounted to a PCP.[88]It was accepted that the respondent had a policy not to record meetings. In any event, Miss Macdonald, “was not put at a substantial disadvantage because of her poor cognitive abilities”. There was no factual evidence to support this. Miss Macdonald was only concerned with the accuracy of the Minutes, not her ability to take in what was being discussed. Further, the Minutes of the second consultation meeting were not challenged.[89]Further, there was no evidence of Miss Macdonald being placed at a substantial disadvantage compared with someone who is not disabled. Nor did any of the medical reports suggest a “poor cognitive function”.[90]So far as the second PCP was concerned, Counsel was submitted that as this was a “one off decision” her case “falls at the first hurdle”.[91]Nor was there evidence of Miss Macdonald being put at a “substantial disadvantage”.[92]Counsel also drew to my attention that the claimant’s psychiatrist had referred to her as being a “sensitive soul” (P68).[93]Nor did the respondent have knowledge of this perceived disability. Discrimination arising from disability[94]In support of his submissions in this regard Counsel referred to:- Pnaiser v NHS England and anr UKEAT/0137/15/LA (in particular the approach at para 31 by Judge Simler) Williams v Trustees of Swansea University Pension and Assurance Scheme and anr 2018 UK SC 65 (in particular the conclusions of Lord Carnwath at paras 27-28) Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16/JOJ (in particular paras 14, 15, 17 and 18)[95]He submitted that Miss Macdonald’s sick leave was not one of the effective causes of her dismissal. That was only the background circumstances that led to her dismissal.[96]The effective cause of Miss Macdonald’s sickness was that the respondent discovered they could manage without her. Her absence was not the operative cause of her dismissal.[97]Further, and in any event, while Counsel accepted that Miss Macdonald’s dismissal was unfavourable treatment, he submitted that it was objectively justified: it was “a proportionate means of achieving a legitimate aim”, namely the efficient running of the Field Services team.[98]So far as the second aspect of this complaint was concerned, namely the manner in which the respondent dealt with the pay error, the focus of this complaint was the delay in the respondent responding to her emails. However, he submitted Miss Macdonald was not treated unfavourably when the “full context” was considered.[99]Miss Macdonald received an “out of cycle payment” and received this quickly, especially having regard to the fact that the respondent has some 10,000 employees and a worldwide operation. Counsel submitted that, far from Miss Macdonald being put at a disadvantage, she was actually put at an advantage. Unfair dismissal[100]Counsel submitted, with reference to s.139(1)(b) of the Employment Rights Act 1996 (“the 1996 Act”), there was a genuine redundancy situation as there was a diminished requirement for the Training Manager role.[101]He also submitted with reference to s.98(4) of the 1996 Act that the respondent had acted reasonably.[102]He submitted that the “three stage test” in, Safeway Stores plc v Burrell [1997] IRLR 200 had been satisfied.[103]In further support of his submissions he referred to: - Polkey v A E Dayton Services Ltd [1987] IRLR 503 Williams v Compair Maxam Ltd [1982] IRLR 83 Wrexham Golf Club Co Ltd v Ingham UK UKEAT/01910/12/RN, ( in particular per Richardson J at para 23 with regard to the general principles to be applied if there is a pool of one).[104]He submitted that the procedures which the respondent followed and the decision to dismiss Miss Macdonald were within the band of reasonable responses which a reasonable employer might have adopted.[105]The respondent followed its own policy when refusing Miss Macdonald’s request to record the second consultation meeting; Ms Tak was the dedicated HR person for the Field Services business pillar; Miss Macdonald’s grievance that she should have been replaced was not upheld; Ms Tak had been involved in the business case for redundancy and knew the background; Ms Tak’s conduct at the second consultation meeting was not outwith the band of reasonable responses; both parties raised their voices and she only did so when Miss Macdonald, “talked over her”; Miss Macdonald was given every opportunity to raise anything; she was given the salary range for the Senior Calibration Technician role; and Ms Tak “went outside the normal process as a favour to the claimant by going direct to the Hiring Manager”.[106]The respondent’s decision not to “ring fence” alternative employment was not outwith the band of reasonable responses, as an employer is entitled to employ the best person possible for the role; Miss Macdonald’s complaint about the delay in engaging the redundancy process was predicated on a finding in fact that the view was formed by Mr Cuthbert in January 2024 but that was not so; Mr Cuthbert explained the reasons for proceeding with the process when he did; in any event, Mr Cuthbert was not the person who decided finally to proceed with the redundancy of the Training Manger role.[107]Counsel submitted that the respondent’s complaints in relation to the payroll error were time barred and that the Tribunal should not exercise its discretion and extend the time limit.[108]In support of his submission he referred to Pearce v Bank of America UKEAT/0067/19/LA.[109]He also disputed that there was a continuing act of discrimination, principally because different individuals had been involved. In support of his submission in this regard he referred to: Aziz v FDA [2010] EWCA 304 Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686 (at para 52) Claimant’s submissions Reasonable adjustments[110]Miss Macdonald claimed she requested Mr Cuthbert to replace Ms Tak following the first consultation meeting and not during the second. She also rejected the contention that she did not have poor cognitive abilities as it is a “natural implication” that mental health impacts on cognitive ability.[111]She explained that her main issue with the respondent refusing to replace Ms Tak was that it is a large Company with a number of other HR professionals available and it was not essential that she be at the meetings, particularly as the respondent was aware of how this impacted upon her health. The respondent was well aware of the need to reduce her stress as this was discussed at the various welfare meetings.[112]She submitted that she was put at a substantial disadvantage by the respondent’s refusal to replace Ms Tak as the HR representative. She submitted that this, “wholly, negatively, affected her ability to have an effective consultation process”. Redundancy[113]Ms Macdonald disputed that there was a genuine redundancy situation and emphasised the timeline. She submitted that the respondent, “had all the information they needed in January” and that the decision to dismiss her was made due to her absences.[114]She was in a period of recovery when the pay issue arose and this caused her “disability to recur”. The respondent knew that she was vulnerable and “they caused her suffering”. She submitted that the “operative cause” of her dismissal was not the business reasons which the respondent advanced, but rather it was because of her absences.[115]She further submitted that Robin Cuthbert also believed that the redundancy process was not handled well. She claimed that the respondent did not show her the “duty of care” they should have, in light of her disability.[116]She also drew to my attention that Ms Tak had told Mr Cuthbert not to tell her about the lack of progress with the resolution of the payroll dispute, despite her knowing the state of Miss Macdonald’s health. Even a short email to say it was being dealt with would have helped. She submitted that there was, “a wilful neglect of the duty of care”.[117]Miss Macdonald also “strongly disagreed” that she had “undermined and disrespected Ms Tak”. She claimed that on numerous occasions her contentions about the state of her health were rejected.[118]While she accepted that “ring-fencing” of possible alternative employment “was not a significant part of her claim”, she maintained that she should have been given priority. She submitted that the respondent did not want to find another role for her and their refusal to ring-fence was one example of that.[119]Miss Macdonald claimed that the payroll issue was part of a “continuing act of discrimination throughout the entire redundancy process” and once again submitted the dismissal was “because of the time she took off”. Discussion and Conclusions[120]I remained mindful throughout this case, and made allowances for the fact, that Miss Macdonald was a litigant in person and had no experience of employment tribunal proceedings.[121]Helpfully, an agreed List of Issues was included in the Joint Bundle (P56- 60). I was satisfied that it was accurate, apart from the omission of the issue of whether there was a genuine redundancy situation which Miss Macdonald disputed. Unfair dismissal (P58)[122]I decided to consider and determine this complaint first of all. Genuine redundancy?[123]In every unfair dismissal case where dismissal is admitted s.98(2) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. An admissible reason is a reason for which an employee may be fairly dismissed and among them is that the employee was redundant. That was the reason which the respondent claimed was the reason for Miss Macdonald’s dismissal.[124]However, this was disputed by Miss Macdonald. She claimed that there was not a genuine redundancy situation and that the reason she was dismissed was because of her absences due to ill health.
Relevant law
[125]The statutory definition of redundancy is to be found in s.139(1) of the 1996 Act. Sub-section (1)(a) deals with the situation where an employer has ceased or intends to cease to carry on business. Clearly that does not apply in the present case. The relevant provisions are in sub-section (1)(b) which reads as follows:- “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal was wholly or mainly attributable to –(a) …………………………………………………………………..(b) the fact that the requirements of the business – (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.”[126]The main reason for Miss Macdonald’s contention was that she maintained that as early as January 2024 the respondent had knowledge of all the evidence that it subsequently relied upon to support its contention that the Training Manager role was redundant. However, it was not until July 2024 that she was advised that a decision had been taken to make the role redundant. She claimed that the timing was such that her dismissal was not because of redundancy, but rather because of her absences from work.[127]The evidence of Robin Cuthbert with regard to this issue was crucial. As I recorded above, his evidence was credible and reliable. Significantly, he was a good friend of Miss Macdonald and was extremely supportive of her.[128]His evidence, which I accepted, was that the decision to make the post redundant evolved over time as a consequence of regular discussions which he had his line manager Ross Hyland. He also explained that another reason for the apparent delay was his reluctance to proceed with the redundancy which might well result in his good friend being dismissed, especially when she did not enjoy good health.[129]It was Mr Cuthbert who sought to progress the matter initially. In his email of 13 June 2024 to Ms Tak (P241-242), he set out compelling evidence that when Miss Macdonald had been absent for lengthy periods, there was no requirement to arrange for her work to be covered by an additional employee. Her work had been adequately covered by various existing members of the Field Services team and by Mr Cuthbert himself with “no significant impact” and no adverse impact on “Training Revenue”.[130]It was also significant that the decision to make the post redundant and restructure the business was not one that Mr Cuthbert could take on his own. Management at a more senior level had to be satisfied that it was a genuine redundancy and they had to approve a restructuring (P251). That was why Ms Tak had to get approval from Stefan Eriksson, the Account Director (P243-244); Chris Millwood, the Finance Director and Ross McCluskey, the Chief Financial Officer (P248).[131]Another relevant factor was that since Miss Macdonald’s dismissal in August 2024 she had not been replaced. Her work had been covered by the Field Services team members and Mr Cuthbert, as it had been when she was signed off work due to ill health.[132]In Kingwell and ors v Elizabeth Bradley Designs Ltd EAT 0661/02 Mr Justice Burton said this:- “It appears to us that there is a fundamental misunderstanding about the question of redundancy. Redundancy does not only arise where there is a poor financial situation at the employer’s … It does not only arise where there is a diminution of work in the hands of an employer …. It can occur where there is a successful employer with plenty of work, but who, perfectly sensibly as far as commerce and economics is concerned, decides to reorganise his business because he concludes that he is overstaffed. Thus, even with the same amount of work and the same amount of income, the decision is taken that a lesser number of employees are required to perform the same functions. That too is a redundancy situation.”[133]In my view, that was exactly the situation in the present case. I had no difficulty, therefore, arriving at the view that the circumstances in the present case fell fairly and squarely within the statutory definition and that this was a genuine redundancy situation.[134]I also found support for my decision in Murray & another v Foyle Meats Ltd [1999] IRLR 562. Giving the leading speech of the House of Lords, Lord Irvine, the Lord Chancellor, thought that the wording of the relevant statute was: “simplicity itself”. In his Lordship’s view, the language of the section asks two questions of fact. The first is whether the requirements of the employer’s business for employees to carry out work of a particular kind have diminished. The second question is whether dismissal is wholly or mainly attributable to that state of affairs. This is a question of causation. So far as the present case was concerned, I was satisfied that the requirements of the respondent’s business for a Training Manager diminished and that was the reason for Miss Macdonald’s dismissal.[135]The Safeway Stores case, to which I was referred by Counsel, established a three-stage test for determining if a dismissal was due to redundancy. The case clarified that the focus should be on whether the dismissal was attributable to a reduction in the business’s need for employees to do a particular type of work. I was satisfied that the test was satisfied in the present case: Miss Macdonald was dismissed; the requirements of the respondent’s business to carry out the work of a Training Manager had diminished; Miss Macdonald’s dismissal was caused by that diminution.[136]I decided, therefore, that this was a genuine redundancy situation and that Miss Macdonald was dismissed by reason of redundancy which is an admissible reason.[137]This finding obviously had a significant bearing on Miss Macdonald’s other complaints.[138]Having reached this decision, the remaining question which I had to determine, under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating the reason for dismissing Miss Macdonald as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case. In doing so, I had regard to the authoritative starting point for Tribunals assessing the fairness of a redundancy dismissal, namely the guidance of Lord Bridge in Polkey, to which I was referred by Counsel: “The employer will not normally act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”[139]I was also mindful, as far as the consultation process was concerned, that the objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed (Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23).[140]Also, in the Compair Maxam Ltd case, to which I was also referred by Counsel, Browne Wilkinson J. said this at para 18:- “It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted.” Warning and consultation[141]Miss Macdonald was warned in good time that her job was at risk. The reason for this was explained clearly to her in various consultation meetings and she was afforded a reasonable opportunity of responding and making representations on her own behalf. Recording meetings[142]Miss Macdonald complained that at least one of the consultation meetings should have been recorded. This was recorded in the Minutes of the second consultation meeting on 18 July 2024 (P333). She claimed that she raised this with Mr Cuthbert a few days before but, on the evidence, I was unable to make such a finding.[143]In any event, there was no provision in any of the respondent’s policies or procedures for meetings to be recorded and recording was not its normal practice. Although the grievance meeting was recorded, this was done in error by Mr Dixon who had only recently joined the respondent Company.[144]I was satisfied, in all the circumstances, that the decision to refuse Miss Macdonald’s request to record the meetings fell within the band of reasonable responses which a reasonable employer might have adopted. Ms Tak’s involvement[145]Miss Macdonald also maintained that it was inappropriate for Ms Tak to continue to be involved in the redundancy procedures and she asked for her to be replaced.[146]I was mindful that Miss Macdonald had raised a grievance where she complained about a lack of communication by Ms Tak in relation to the payroll error. Arguably, it might have been prudent in light of this for the respondent to have arranged for another HR professional to be involved. However, Ms Tak had been involved from the outset and was fully aware of the background and the reason for the redundancy and it was logical that she would be involved.[147]Once again, it was not for me to decide whether it might have been fairer for another HR professional to be involved, but rather whether the respondent’s decision lay within the range of conduct which a reasonable employer could have adopted. I was satisfied that it was. Alternative employment[148]It was clear that there was no suitable alternative employment for Miss Macdonald and I was satisfied that Ms Tak acted in a reasonable manner when she made direct enquiries of the “Hiring Manager”, Graham Robertson, the Head of the calibration team, in relation to the Senior Calibration Technician role. She did so to assist Miss Macdonald. There was nothing untoward in this, as Miss Macdonald suggested. In any event, it was clear that that role was not suitable as Mr Robertson advised Ms Tak he was looking for an “experienced calibration technician” who required no training (P354).[149]I arrived at the view, therefore, that the procedures which the respondent followed fell within the band of reasonable responses which a reasonable employer might have adopted and that it was fair.[150]I also arrived at the view, in all the circumstances, with reference, in particular, to Polkey and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, that Miss Macdonald’s dismissal fell within the band of reasonable responses which a reasonable employer might have adopted and that it was fair.[151]Accordingly, her unfair dismissal complaint is dismissed. Reasonable adjustments (P56-57)[152]The relevant statutory provision is s.20(3) of the Equality Act 2010: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes a person on whom the duty is imposed is referred to as A.(2) A 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.”[153]Miss Macdonald relied upon the following provision, criterion or practices “PCPs” (P48 and P56)):-(i) The respondent’s refusal to allow the second consultation meeting to be recorded; and(ii) The respondent’s refusal to allow an alternative HR representative to deal with her redundancy consultation.[154]I deal with each in turn. The refusal to allow the second consultation meeting to be recorded[155]The respondent did not have a policy to record meetings. It was not its practice to do so. As I recorded above, in my view, in all the circumstances of the present case, the respondent’s refusal to allow the second consultation meeting to be recorded was within the band of reasonable responses which a reasonable employer might have adopted.[156]I found favour, therefore, with Counsel’s submissions that the claimant failed to establish any form of PCP.[157]In any event, as Counsel also submitted, Miss Macdonald failed to establish causation as there was no evidence of her being put at a substantial disadvantage because of her “poor cognitive capabilities” (P48, para 9). As Counsel submitted, there was no medical evidence to that effect and the reason why Miss Macdonald asked for the second consultation meeting to be recorded was because she was concerned about the accuracy of the Minutes, not because of her ability to understand what was being discussed. There was no evidence, medical or otherwise, to support Miss Macdonald’s submission that this was a “natural implication”. Respondent’s refusal to allow an alternative HR representative[158]I accepted Counsel’s submission that this was not a PCP.[159]The term “provision, criterion or practice” is not defined in the 2010 Act. It is something an employer does to its employees which gives rise to a difference in outcomes depending on the characteristics of its employees. It is a general policy or practice of the employer. In Ishola v Transport for London [2020] ICR 1204 Simler LJ noted that it was significant that Parliament chose the words “provision, criterion or practice” rather than “act” or “decision”. In her view, the function of a PCP, “is to identify what it is about the employer’s management of the employee or its operation” that causes the particular disadvantage. Therefore, to test whether the PCP is discriminatory or not, it must be capable of being applied to others.[160]While I was mindful that a PCP should be construed widely, in the present case the respondent’s refusal to allow an alternative HR official was, as Counsel submitted a “one off decision” and, in the particular circumstances of this case was not a PCP for the purposes of a reasonable adjustment’s claim.[161]Further, and in any event, as Counsel also submitted, on the evidence there was no substantial disadvantage. As I recorded above, the respondent’s decision not to replace Ms Tak was a reasonable one in all the circumstances. It did not disadvantage Miss Macdonald.[162]The complaint of a failure to make reasonable adjustments, therefore, is dismissed. Discrimination arising from disability (P57-58)[163]The relevant statutory provision is s.15 of the 2010 Act which is in the following terms:- “15 Discrimination arising from disability(1) A person (A) discriminates against a person (B) if - (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[164]Miss Macdonald relied on:(i) The motive behind the redundancy being because of her sickness absence, this being an act of unfavourable treatment which arose in consequence of her disability;(ii) The way the respondent dealt with the pay error when she is alleged to have fragile health, this being an act of unfavourable treatment which arose in consequence of her disability. The motive behind the redundancy[165]As I recorded above, this was a genuine redundancy and Miss Macdonald was fairly dismissed for that reason.[166]I found the Judgment of the Honourable Mrs Justice Simler in Charlesworth, to which I was referred by Counsel, and in particular paragraphs 17 and 18, to be of assistance in this regard. In the present case there was “a distinction between the context within which the events occurred and those matters which were causative.” The context was Miss Macdonald’s absences from work due to ill health when the respondent established that her work could be done equally as efficiently and more cost effectively by the remaining members of the Field Services team, which led them to conclude that her role as Training Manager was redundant.[167]In any event, and for the sake of completeness, I was also persuaded that Counsel’s alternative submission that Miss Macdonald’s treatment was “a proportionate means of achieving a legitimate aim”, namely the efficient running of the Field Services team, was well-founded. It was objectively justified.[168]Accordingly, I arrived at the view, that this aspect of this s.15 complaint was not well-founded and that it should be dismissed. Unfavourable treatment due to the pay error[169]Miss Macdonald did not complain about the error itself, but rather about the lack of communication. In my view when one considers the timescale, and, in particular, the events of 11 April 2025, that complaint was unjustified.[170]Once again, I was satisfied that Counsel’s submission in this regard was well-founded. Miss Macdonald was not treated unfavourably.[171]While Ms Tak advised Mr Cuthbert not to inform Miss Macdonald of the fact that the payment had not gone through and that it should go through that day (P279), I accepted her evidence that the reason for this was that she did not want to run the risk of causing Miss Macdonald further stress (P279). There was no malice in this.[172]In my view, the respondent, and Ms Tak and Mr Cuthbert, in particular, acted in good faith throughout. They made positive efforts to resolve the matter as expeditiously as possible, mindful of the state of Miss Macdonald’s health.[173]Arrangements were made for payment to be made “out of cycle” which, as Counsel submitted, “put her at an advantage not a disadvantage”. It also has to be borne in mind that “payroll” had to deal with several thousand ITS employees.[174]Miss Macdonald’s principal criticism was that Ms Tak failed to respond timeously to her email on 11 April at 09:41. However, Ms Tak thought that Mr Cuthbert was dealing with the matter; she was unaware that he was on holiday that day; she had business review meetings that day and was not always checking her emails. Any “delay” on her part was not intentional. I accepted Ms Tak’s evidence that she was anxious to avoid giving Miss Macdonald a negative response and exacerbating her stress.[175]Further, and in any event, Miss Macdonald’s health was not an “effective cause for her treatment”.[176]I arrived at the view, therefore, that Miss Macdonald was not treated unfavourably because of something arising in consequence of her disability.[177]Accordingly, this claim also falls to be dismissed.[178]Finally, I record, for the sake of completeness, that had I been required to address this issue, I would have found that the complaint was out of time. However, I would have extended the time limit on the basis that it was “just and equitable to do so, in terms of s.123(1)(b) of the 2010 Act”. Miss Macdonald did not have the benefit of advice at the time and had no experience of employment tribunal proceedings; to have raised the matter formally by way of a timeous notification to ACAS while she was still in employment would have run the risk of polarising matters between her and the respondent. Further, in my view, the balance of prejudice and hardship favoured Miss Macdonald.