Employment Tribunal Rejects Claimant’s Disability Discrimination and Unpaid Wages Claims

OUTCOME: Dismissed

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Case Numbers: 2411465/2023 2412218/2023 2402794/2024

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondents: [redacted]

(2) [NAME_6] at: Manchester Employment Tribunal

On:

1-5 September and 8 & 9 December 2025

(In chambers 10-12 December 2025)

Before: Employment Judge [NAME_10]

[NAME_12] Claimant: [redacted]

Respondent: [redacted]

RESERVED JUDGMENT

The unanimous decision of the Tribunal is that:

1. The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed

2. The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

3. The complaint of victimisation is not well-founded and is dismissed.

4. The complaint of discrimination by way of dismissal is not well-founded and is dismissed. 5. The complaint of unauthorised deductions from wages in relation to commission is not well-founded and is dismissed.

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REASONS

Procedural background

1. By claim forms presented to the tribunal on 30 October 2023, 15 December 2023, and 10 May 2024, the claimant pursued claims of disability discrimination and unauthorised deductions from wages in relation to commission. The claims of disability discrimination were claims of discrimination because of something arising from disability (section 15), breach of the duty to make reasonable adjustments (sections 20/21), together with a claim for victimisation (section 27). The claimant lacked sufficient qualifying service to pursue a claim of ‘ordinary’ constructive unfair dismissal but nevertheless maintained that she had been constructively dismissed and that this amounted to disability discrimination.

2. At the outset of the hearing the parties agreed that the list of issues compiled and approved by Employment Judge Childe accurately reflected the claimant’s claims in these proceedings and was the list of issues through which the tribunal would work in reaching its conclusions in these cases. The agreed list of issues was located at page 193 within the hearing bundle. In addition, the respondent clarified that the legitimate aim relied upon for the purposes of any defence to the section 15 claim was: “to mutually agree the claimant’s exit in circumstances where the respondent has genuine concerns about the claimant’s conduct at work and in circumstances where the claimant had evinced the desire to leave.”

3. At the start of the hearing, it was agreed that the tribunal would hear and determine the case on liability and address any issues of remedy separately, as appropriate. Further, the respondent asserted that the claim for commission could be determined using the findings of fact made at the liability stage. The respondent asserted that the claim for commission stood or fell depending on whether the respondent was entitled to dismiss the claimant (even though she resigned) such that it was able to exercise a contractual discretion to withhold commission. As a result of the gap between the two tranches of hearing dates, there was a discussion at closing submissions as to whether the tribunal was, in fact, going to determine the commission claim at this stage or not. In the end, respondent’s counsel made submissions on the commission claim and was content for the tribunal to determine the commission claim at this stage of the proceedings.

4. The disabilities relied upon by the claimant were PMDD (pre-menstrual dysphoric disorder) and symptoms of perimenopause. The respondent conceded that the claimant was disabled within the meaning of the Equality Act 2010 for the purposes of her tribunal claims. The claimant met the definition of disability throughout the relevant period for the purposes of her claims. At the start of the final hearing the issue of the respondent’s knowledge of the claimant’s disability remained for determination by the

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tribunal, although some concessions were made by the respondent during the course of the hearing as was reflected in the respondent’s closing submissions.

5. For the purposes of determining the claims the tribunal received written and oral witness evidence from: • the claimant, [NAME_18] • the second respondent, [NAME_20] • [NAME_22] • [NAME_26]

In addition, the tribunal had regard to the contents of an agreed hearing bundle containing 964 pages. References to page numbers below are references to the contents of this bundle unless otherwise stated. (Unfortunately, the tribunal spent considerable time navigating its way around the bundle to locate the documents it required because the documents were not arranged in standard chronological order. Rather, they were arranged by topic or category. The tribunal observes that this meant that decision making took considerably longer than would otherwise have been the case. Chronological order is usually the most straightforward and ‘user-friendly’ option for hearing bundles.) The tribunal had regard to those documents in the bundle to which we were referred by the parties. We also had the benefit of written closing submissions on behalf of all parties. Respondent’s counsel supplemented her submissions orally.

Findings of fact

Factual background

6. The claimant was employed by the first respondent as “Freelance Director.” The first respondent is a company specialising in recruitment in the construction industry. The second respondent was the only other active or Executive Director of the company. He had founded the company. His partner was a Non-Executive Director in the company. At the relevant time, the first respondent had only two employees, the claimant, and the second respondent. It was intended that the claimant would act as the second respondent’s “Number Two” (or second in command) and would specialise in recruitment on the “white-collar” side of the business. The claimant was experienced in recruitment in this sector and the second respondent knew of her reputation. The second respondent engaged a headhunter to approach the claimant and recruit her into the business.

7. When the claimant left her previous employer she had six months of restrictive covenants to abide by. This meant that she could not take clients with her from her old job to the first respondent. Therefore, the second respondent transferred some of his clients to the claimant so that she had existing business to work on as well as spending time building up new business for the company.

8. There were two other companies operating under the “[NAME_30]” banner. There was a social enterprise, which looked to provide recruitment

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for those from ‘barriered’ backgrounds. There was also a payroll company operating from the same premises. ([NAME_31] worked for that business.)

9. All the other recruitment consultants were employed by the social enterprise company, although they would do work for both the social enterprise company and the first respondent. Likewise, the claimant was employed by the first respondent but would also do work for the benefit of the social enterprise. Although the claimant was employed by the first respondent and everybody else was employed by the social enterprise, that was the legal and contractual position. This is slightly different to considerations of seniority and hierarchy within the office. The claimant was one of two executive directors who would work at the premises. The fact that the two businesses overlapped so much meant that the claimant had oversight and management seniority in relation to the recruitment consultants and other employees of the social enterprise. Nobody suggested that she did not have authority to manage them even though she was employed by a separate entity. In terms of professional etiquette, one could say that the claimant was part of the ‘management level’ in the businesses and so she should behave accordingly towards the ‘operational’ employees of the social enterprise as well as any employees of the first respondent (and vice versa).

10. The first respondent operated out of a serviced office. At the premises there was one open-plan office where everyone (including the directors) worked. The only other workspace was a conference/meeting room which was referred to on occasions as “The [NAME_34].” If the room was not in use for specific meetings it could be used as a quiet working space. Otherwise, all employees (including the directors) would have to use the common parts of the building which were in use by other staff. In addition, there was a communal kitchen which could be used as a workspace if appropriate or necessary.

11. Air conditioning was available within the building. However, it was basically centrally controlled by the owners/landlords of the building. It was controlled by the building manager rather than by anyone within the respondents’ organisation. Further, it could not be set to different temperatures in different parts of the respondents’ office premises. The respondents had a very limited ability to “tweak” the temperature. They could adjust the temperature in the respondents’ part of the premises away from the centrally set temperature by a maximum of 1°C either way.

12. A key feature of the office space was the whiteboard. The whiteboard had the vacancies placed on it which needed to be filled by the recruitment consultants. Open vacancies and the filled vacancies would be marked upon the board ‘in real time.’ It was a major method of communication within both the first respondent and the social enterprise. It enabled all employees to see which vacancies were available to be filled and which had already been filled. It would change “in real time” over the course of the working day. It was the easiest way to maintain accurate information as all employees looking at it could see whether or not a vacancy had been filled. There was no better way to keep up-to-date information that was accurate. Employees would need to be in the office in order to see the whiteboard. A photograph of the board, for example, was not going to assist at any given moment in time. The only effective way to keep up to date with the status of open and

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filled vacancies in real time was to be in the office so that an employee could look at the whiteboard. Further, the claimant was a director and so her presence in the office with operational level/subordinate employees was desirable in any event. Quite apart from the elements of her role which included recruitment consultant work, she had managerial and business development tasks to complete.

13. The tribunal broadly accepted the respondents’ evidence that Mondays and Fridays are the busiest days in the office in terms of phone calls. The tribunal accepted that this meant that it was important to have everyone working from the office at the beginning and the end of the business week. The tribunal also accepts that Friday would be a particularly important day of the working week as it would be the last opportunity to ensure that all contracts and placements were properly set up to start without any hitches on Monday of the following week. Likewise, Monday would be an important working day for employees to ensure that contractors had turned up for work as expected and that the businesses’ clients were satisfied and had no problems with the placements at the beginning of the working week. Even if the claimant had completed work on her own placements, she still had a role in managing other people’s work. The tribunal concluded that the respondent was entitled to want her to be in the office to oversee it and also fulfil other roles as a director. The second respondent is entitled to design his own business model. The claimant was largely thinking like a recruitment consultant when she maintained that she did not need to be in the office on Fridays or past 3pm. The second respondent had his eyes on the bigger picture within the business. The tribunal accepted that, broadly speaking, the starting point was to consider the second respondent’s business model and then to consider any departure from it to fit the claimant’s needs and/or preferences.

14. The claimant maintained that on Fridays she would place all of her white- collar placements by 3pm. Overall this may have been correct. However, the tribunal is not satisfied that all of the claimant’s white-collar placements would always have been placed by 3pm on a Friday. Furthermore, the placing of workers into vacancies was only one aspect of the claimant’s role for the respondents. It was the “bread and butter” recruitment consultant aspect of the role. She had ongoing responsibilities at the directorial level to have oversight of other employees within the businesses, to engage with clients, and to carry out strategic planning and business development activities. The tribunal heard that the claimant routinely finished early on Fridays and left the office at about 3pm. This was a working pattern that she had continued from her previous employment. It had not been formally agreed with the respondents and was not part of her contractual agreed working patterns. The claimant also asserted that colleagues and clients had access to her mobile phone number so that she could work from home. The tribunal accepted that. Clearly, clients and colleagues did contact the claimant by mobile phone when she was out of the office. However, that does not necessarily mean that she did not need to be in the office, depending on the nature of the work that she needed to do at any given time. Clearly, being contactable by phone was not the same as being present in the office, visible to other employees, and having access to the whiteboard ‘in real time.’ Sometimes her physical presence in the office would be necessary.

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15. In the course of her employment the claimant (and, indeed other recruitment consultants) would have to make site visits to clients. Site visits were used to build and cement relationships with clients and to check that any placements were operating as intended. They were an essential part of her role. They were not usually commission earning opportunities. There were no set days for the site visits. However, the second respondent preferred employees to avoid doing site visits on Fridays given that this was a busy and important day in the office. The second respondent took the view that office-based work should take priority on Fridays. The claimant expressed the view that client visits sometimes needed to be done on Mondays and Fridays if that is what the particular client wanted. The tribunal concluded that recruitment consultants and the claimant understood that site visits should be avoided on Mondays and Fridays for good business reasons. Site visits on those days should be the exception and not the rule. Depending on the particular circumstances and priorities on any given day, it would not always be possible or appropriate to accommodate a client’s preference for a Friday site visit. The tribunal accepted that the respondent had decided that employees should not do site visits on Fridays and that they should focus on closing out the end of the week’s business. They should use other times for site visits. Again, the second respondent was entitled to decide when the business should be doing site visits and when they should be avoided. It was primarily up to the second respondent to consider the efficient use of working time within the businesses.

16. The tribunal heard evidence from and about other staff within the businesses. [NAME_27] joined as a consultant in March 2022. She was tasked with overseeing the delivery of Social Value for the clients of the social enterprise. There were a number of people employed directly by the social enterprise company. [NAME_35] was the Finance Manager. [NAME_38] and [NAME_41] were recruitment consultants for [NAME_50]. [NAME_44] was the After Care and Well-Being Manager. She was a temporary employee and worked on site. [NAME_23] was the Office Manager and carried out administrative tasks. [NAME_47] was the Divisional Manager for [NAME_50]. As part of his role he also filled vacancies.

17. The claimant had access to a commission scheme pursuant to her contract of employment. The commission arrangements were set out in the schedule to her written contract of employment. The version of the commission arrangements in place at the termination of the claimant’s employment was located at page 306 in the bundle. It had been signed by the claimant. The schedule indicated that the claimant was entitled to receive commission in respect of temporary placements arranged by her on the respondents’ behalf. The basis for the calculation was set out in the schedule. Payment of commission was subject to deductions for PAYE, National Insurance contributions and other sums that may be due. Commission would be paid with the monthly salary payment in the month following the date in which commission became due for payment. Commission became due for payment with salary the month following the date of the invoice to the client. Commission would be reduced proportionately having regard to any refund allowed to the client in accordance with the terms of business or otherwise. Clause 4 of the schedule stated: “If the Employment is terminated by either

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You or Us then any outstanding commission which falls due prior to termination will be paid 12 weeks after the last day of employment.” The crucial paragraph for the purposes of this case was set out in paragraph 5 which stated: “If We terminate Your Employment for gross misconduct, or where after termination for any other reason We discover that Your Employment could have been terminated for gross misconduct, payment of any commission outstanding at the date of termination or which becomes due for payment after the date of termination will be subject to Our absolute discretion.”

Chronological findings of fact

18. The claimant was offered a job by the first respondent on 29 May 2022. There was no written job description. The claimant initially accepted that she did not tell the respondents about her medical diagnosis when she started work albeit she subsequently sought to suggest that she mentioned her symptoms to the second respondent. The tribunal is not satisfied that she notified the respondents of her disability or the associated symptoms at that stage. Further, she did not tell the respondents enough to suggest that there was an underlying medical condition.

19. The claimant started work on 1 July 2022 under a contract of employment [page 275]. The claimant’s agreed working hours were 9am-5pm Monday to Friday with an hour for lunch. The claimant says that office staff generally worked from 8am until 4pm. The claimant indicated that she usually finished work at 3pm on Fridays but, as previously stated, the tribunal is not satisfied that this early finish on Fridays was actually agreed with the respondents at the start of her employment. The tribunal heard evidence about the claimant’s initial working arrangements. The tribunal concluded that it was agreed from the outset that the claimant could spend one day per week working from home. This was usually Wednesday. Another day’s worth of work would be taken up with client/site visits. The remaining three days would be worked from the office. The claimant did not indicate that she had any difficulty with these arrangements at the beginning of her employment.

20. The claimant says that from 19 August 2022 her health was deteriorating, her symptoms got worse and she was diagnosed with perimenopause. The letter from the claimant’s GP dated 11 November 2024 (which summarised her interactions with the GP) indicates [page 676] that her GP ([NAME_51]) prescribed her HRT at around this time. The GP describes the claimant experiencing symptoms including hot flushes, night sweats, joint pains, tiredness, brain fog, and changes to her periods. This is the earliest mention of perimenopausal symptoms within the doctor’s letter. (The tribunal was not provided with a printout of the claimant’s GP records and so was reliant upon this GP letter which was written some time later than the events that it describes.) It is important to note that the respondents would not have been aware of these symptoms or medical problems at the time. The claimant did not provide the respondents with a letter from her GP. The letter within the bundle was written after the event and was not provided to the respondents during the course of the claimant’s employment.

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21. The GP’s letter seems to indicate that the turning point in the claimant’s symptoms was in fact February/March 2023. The important point is that the respondents were not aware of this in 2022. The claimant was not communicating information about her health, symptoms, or disability to the respondents at this point in time.

22. The claimant gave evidence that from September 2022 onwards she started to find the second respondent’s behaviour to other staff unprofessional and rude. She informed her partner of this via text [e.g., page 771]. An early example of the way that the claimant spoke about the second respondent to his employees was to be found at page 612 where the claimant engaged in a text exchange with [NAME_44]. Her comments included: “getting pissed off with [NAME_53] he’s so rude he was moaning before people have been making mistakes we all worked hard while he was away x;” “he’s making me feel like shit”; “yeah he can be a knob at times”. Although these texts talked about the second respondent but were not sent to the second respondent, the language chosen already indicates a level of disrespect for the second respondent and could be said to be an inappropriate way to talk about the second respondent to his employees. It gives the impression that, in some senses, the claimant viewed herself as one of the more junior employees in the business rather than as a director with managerial level responsibilities within the business. This was the first example in the bundle of complaints about the second respondent being expressed between the claimant and other employees of the social enterprise.

23. The available evidence suggests that the claimant started to call the second respondent names or refer to him in unflattering terms and that others then carried on doing this. Others may have said similar things about the second respondent but the claimant apparently condoned this. She certainly did not put a stop to it or suggest that staff should stop doing it. The claimant did not lead by example. The tribunal noted that her criticisms of the second respondent and her use of unflattering language about him started well before the issue of the claimant’s disability really arose in the workplace. The claimant was undermining the second respondent’s authority in his own business well before the issue of disability came to light. She demonstrated a lack of respect. This was unprofessional behaviour by the claimant. If the second respondent had been aware of it, it would doubtless have constituted a conduct issue to be addressed with the claimant. At this early stage there was no obvious trigger or cause for the claimant developing this level of disrespect towards the second respondent. She behaved more as one of the group of more junior employees rather than as a director. She was undermining the position of the other director in his own company with his own employees. None of this appears to be related to the claimant’s disability.

24. From October 2022 it appears that the claimant started expressing dissatisfaction regarding the second respondent in her [NAME_54] messages to her partner [NAME_55].

25. The claimant says that she had an informal meeting with the second respondent and asked him not to speak to her in the way that he did. She voiced concerns about how he communicated with her around 18 October

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2022. Certainly, the claimant reported something to this effect in her [NAME_54] messages to her partner [page 771]. This all took place around September/October when the business experienced its post-summer downturn. The evidence before the tribunal suggests that this business had an annual pattern or cycle with quiet periods and busier periods. One of the quiet periods every year seems to have been the period straight after the summer holidays. The business seems to have experienced a dip just after summer in both 2022 and 2023. Consequently, the autumn period would be a pressured time of year for this business as it would plan to try and boost business during an otherwise quiet period. Consequently, the second respondent wanted to know that there was a pipeline of business to be filled. The tribunal was prepared to accept that the second respondent would be stressed and this would affect the way that he communicated with employees. However, this does not seem to have been specific to the claimant. The second respondent was generally stressed during such quiet periods and spoke to all employees in a similar manner as a result. At this point in time (autumn 2022) the claimant had only been in the business for a couple of months. She would not be expected to have solved the problem of the autumn downturn within such a short time frame. By contrast, by 2023 the claimant should reasonably be expected to have been planning for the downturn, particularly as the second respondent had had surgery and suffered a bereavement in 2023 (as set out below). The other director should be looking after the business in his absence. However, back in 2022 it is fair to conclude that the second respondent was stressed in the autumn but that nothing was specifically directed towards the claimant in this regard.

26. On 16 November 2022 the claimant says that the second respondent started to mock her calling her “recruity recruity” [page 772-773]. She commented, “he’s pulled me in this morning to tell me I’m to [sic] recruity etc what a knob x.” [NAME_55]’ response was to suggest that they would look for something else after Christmas for the claimant. The tribunal understands this to mean that they would look for an alternative job for the claimant in the New Year. The claimant carried on, “also he’s told me I’ve pissed off about booking days off up to Christmas fooking knob head he is x.”

27. The tribunal has concluded that what the second respondent actually said was that the claimant was sometimes “too recruity.” What he meant by this was that the claimant sometimes used ‘corporate speak’ which was more suited to her previous employment in larger businesses. What he was attempting to convey was that the claimant should be more herself when talking to clients. The business was a small business which was designed to provide a personalised service to its clients rather than an overly ‘corporate’ approach. He was encouraging her to be less reliant on corporate jargon from the wider recruitment sector. The second respondent was simply telling the claimant to talk to clients in the right tone for the audience concerned. He was pointing out that ‘corporate-speak’ would not go down well in that sector so that the claimant should just be herself. The tribunal accepted the second respondent’s evidence on this. The tribunal was not satisfied that the second respondent mocked the claimant or sought to belittle her by calling her “recruity recruity.” The claimant has mischaracterized what the second respondent said and the context in which

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he said it. We find that [NAME_56] addressed this issue with the claimant directly and did not call her names in the office in the way that the claimant alleges. We conclude that the claimant was making “a mountain out of a mole hill” about this and that she did this after the event rather than at the time the comments were made. This only became an issue after the event.

28. The claimant also alleges that [NAME_56] started to talk about the claimant as having “women’s issues.” This arose in the context of the second respondent apparently having a problem with employees leaving the office to visit the toilet. We are not satisfied that the claimant’s account is an accurate account of what was said. We accepted the second respondent’s explanation as more credible. He was evidently concerned that employees were not doing their job, that they were taking too many breaks when they should be working. We do not accept that he referred to “women’s issues.” By this stage in the chronology “women’s issues” had not been referred to by the claimant in her discussions with the respondents. References to menopause etc. appear later in the chronology. In that context it would be somewhat “out of the blue” for the second respondent to start referring to “women’s issues.” In short, there is no reason why he would have referred to this or said this at this point in the chronology.

29. The claimant further alleged that the second respondent mocked her in the office on 17 November and called her “Ice Queen” [page 770]. There is no context to this assertion. The tribunal does not know what is said to have provoked this alleged comment or what the claimant’s response to it was. It is not necessarily an example of the second respondent mocking the claimant. The fact that she reports this to her partner indicates that, even at this early stage in the chronology, the claimant seems not to like the job, workplace, or environment. Hence, they discussed looking for another job for the claimant elsewhere in the next year. The tribunal accepts that the term “Ice Queen” was used. We are not sure that the claimant took offence about this at the time. There is no indication at the time that she was upset. The terminology could have meant anything. There is no reference to her being humiliated at the time and we have come to the conclusion that the claimant has represented this as being more serious after the event than she considered it to be at the time.

30. The claimant alleges that on 18 November 2022 there was an incident between [NAME_56] and [NAME_38] and [NAME_57] during which [NAME_56] shouted at them, “office now!” She alleges that he was shouting at them. Again, there was no clear context for this. We were unsure why the claimant had chosen to comment on this incident. This issue was presented out of context. The tribunal has no way of knowing why the second respondent was frustrated. Perhaps his frustration was justified. Was Mr [NAME_40] complaining about something unjustifiably? Perhaps the second respondent generally has a short fuse. In short, none of this was directed at the claimant and none of it related to disability. At its highest it indicates that the second respondent was capable of speaking to all employees within the workplace in this way and not just the claimant. This may have been another reason why she did not like the workplace and was already considering leaving the job by the end of 2022.

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31. The tribunal was mindful of the fact that this was an open plan office and that, in order to have a conversation in private with employees, [NAME_56] would have to invite them into the [NAME_34]. This may well be what he was doing on 18 November albeit in relatively forceful terms. As subsequent events demonstrate, the second respondent had a direct and forceful way of expressing himself towards all the employees of the businesses. Indeed, other employees started to complain about him to the claimant (as set out below.) For example, there were numerous examples of text conversations and exchanges between the claimant and [NAME_41]. On 1 December 2022 [736-739] the following exchange took place:

CC: [NAME_53] is on one today. He so pissed off. I have no idea why!!! [NAME_59]: Oh really probably because I’ve asked to work from home

Why what’s he doing? Saying?

CC: He’s just saying we are definitely moving now and he is sitting between me and [NAME_39]. He’s just fuming.

[NAME_59]: Wtf why I’ve just tried to call him didn’t pick up. He’s fuming with me obviously [emoji] I emailed him at 3am this morning asking could I work from home couldn’t sleep hand throbbing… I’ve had no time off with it I even came in when Id been at hospital and on painkillers. Why’s he starting?…

I’m not going too I’ve had enough [NAME_42]. No I emailed him asking update on [NAME_60] he replied call [NAME_63] yesterday it was he’ll deal with it. I’ll end up telling him to fook off and going I can’t work like this! Id [NAME_64] in?

CC: [NAME_64] is in yes. I honestly don’t know what’s wrong with him. I’ve just done £21k and not one thing has been mentioned.

[NAME_59]: It’s obviously me not coming in what else could it be we all have been out visiting clients this weekend. He said to me last week re my hand well it’s your own fault… yes I know that thank you [NAME_53] but… …

CC: [NAME_65] isn’t in. It’s so frustrating this. He is always on our cases and he is always “frustrated”. I’m giving it until the new year and see if this is for me.

[NAME_59]: Why what has he said?

CC: He’s just on one and makes loads of snide remarks. It’s really getting to me. He makes me feel like shit. If I’m honest he’s making me feel like I can’t do the job or not good enough.

[NAME_59]: You are good enough don’t let anyone dull your light he’s probably had an argument with his Mrs

CC: I know but he is getting to me so I either need to change or change job. Because he isn’t going to change and I just need to accept that. The micro management in here is on another level.

32. This gives a flavour of other employees’ experiences of working for [NAME_56]

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and of how he treated others and spoke to others in the workplace. It also shows that, even when staff were reporting [NAME_56]’s bad mood or bad temper to the claimant and explaining what had caused it (e.g. other staff’s perceived shortcomings), the claimant always assumed or sought to attribute [NAME_56]’s behaviour to something that she (the claimant) had or had not done. Her default reaction was to assume or say that “it must be me.” The documentary evidence tended to suggest to the tribunal that it was not always about the claimant. Rather, the second respondent regularly became frustrated with other employees too and would openly express his frustration towards them or ‘be in a bad mood’ with them. The claimant sought to characterise this as [NAME_56] singling her out for ill treatment or displays of temper, whereas the documentary recorded tended to show that he was like this with all employees. It was a general expression of his personality and character in a business context. He did not single the claimant out and treat her differently to others.

33. By 1 December 2022 the claimant says that junior staff were starting to confide in her about the second respondent, especially [NAME_41]. On reviewing the totality of the correspondence before us, the tribunal concluded that the exchanges often disclosed more about the claimant’s attitude towards the second respondent than they did about the second respondent’s attitudes and actions at work. In essence, the claimant was encouraging or “egging on” her subordinates to complain about the second respondent. She is rather quick to assume that all issues arise as a result of her and that there can be no other explanation for the second respondent’s behaviour but what she herself has said or done. However, in respect of some of the comments, there is nothing in the written record to show or suggest that the second respondent’s comments were linked to the claimant in any way.

34. The claimant alleges that the second respondent cancelled Christmas Jumper Day and cancelled the Christmas decorations. If correct, this affected the entire workforce (not just the claimant) and was an example of [NAME_56] exerting his authority as founder of the businesses. This did not show that the second respondent was targeting the claimant in any way.

35. On 14 December 2022 [NAME_41] was off work on sick leave. The claimant gave this and other examples of colleagues’ complaints and negative comments about the second respondent. Such complaints may or may not have been valid but they had nothing to do with the claimant’s own claim. All they demonstrated was how the second respondent behaved generally in the workplace and that, if he had a short fuse, it was with everybody rather than just with the claimant. It also showed the claimant’s general approach to conversations with her subordinates. Instead of leading by example and putting a stop to gossip/complaining or taking a proactive management approach to resolve the issues, she didn’t discourage it and instead joined in. On some occasions she can be seen to encourage it.

36. The businesses were described to the tribunal as “micro-businesses.” Holiday leave would, therefore, have a bigger impact on the smooth running of a business of this size than in a large corporation. The claimant had

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complained about the way that the second respondent talked to her about her holiday leave over the Christmas period. The claimant wished to spend Christmas in Aberdovey. However, the office remained open over Christmas, save for [COMPANY_66] holidays and weekends. The claimant said that she was happy to work from her holiday rental. She found the second respondent’s approach aggressive. However, she conceded that she was allowed to take the leave that she requested and was able to travel to Aberdovey as she intended. Her criticism was of [NAME_56]’s attitude towards her and what she perceived as his aggressive approach. She said that it was no way for him to conduct himself. [NAME_56]’s tone and approach may well be open to criticism in this regard although the tribunal understands the additional pressures on small business owners during the festive period. The claimant, in cross examination, was unwilling to accept that the pressure [NAME_56] was under may in some way explain his tone and approach to her, even if it did not excuse it.

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37. The claimant’s dissatisfaction at work continued into 2023. For example, she indicated that she was stressed and had a board full of jobs and not enough hours in the day when she exchanged messages with [NAME_41] [742]. She continued, “This get out on site shit has messed up my day I should be filling them.” This suggests that she was minded to spend more time filling vacancies than going out on site to build relationships with clients. The latter was not a commission earning opportunity. The respondents sought to suggest that the claimant resented being told to go out on site visits to build relationships as this would reduce her time spent on commission earning opportunities. The tribunal did not accept that the claimant necessarily resented doing this but the messages do show that, in a lot of ways, she was still thinking like a recruitment consultant (rather than a director) and was focused on filling vacancies in order to earn commission. She did not seem to recognise that, as a director, her focus also needed to be on business development. She needed to build relationships as part of that. We also noted the last message from [NAME_41] [at page 745] where he said (in relation to [NAME_56]), “At the minute he’s doing everyone’s head in. Not just that it’s also how he speaks to people and he does that in front of everyone.” This indicated that the second respondent’s attitude was not directed specifically at the claimant. Rather, he spoke to everybody like that and did so in public.

38. On 23 January 2023 the claimant alleged that she was shown up in front of others by [NAME_56]. She had filled out a PSL agreement and the second respondent alleged that she had done it wrong in front of others. She says that she was made to feel that she could not do her job. She discussed this at paragraph 26 of her witness statement to the tribunal and supplied a page reference for the hearing bundle. However, on examining the said page reference the document did not say what the statement suggested it would say. The tribunal noted that this was a pattern in the claimant’s evidence. On checking the relevant page references, the tribunal found that messages and documents would often not say what the claimant had asserted in her witness statement. (Indeed, her page references actually demonstrate that she was not being treated differently to others.)

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39. The claimant exchanged text messages with [NAME_41] which appear to have referred to this issue (although the text message exchanges often start in the middle of the conversation which, presumably has taken place face- to-face or verbally). When [NAME_67] says that the second respondent is stressing him out the claimant replies, “I know he makes you feel like you don’t know how to do your job I’ve done this for 17 years and ran successful offices.” When [NAME_67] refers to the second respondent as a control freak the claimant agrees. She goes on to say, “he’s rude when he’s on one!!” On page 745 the claimant says, “[NAME_36] looks like she’s going to cry I think she’s had enough.” [NAME_67]’s response is, “At the minute he’s doing everyone’s head in. Not just that it’s also how he speaks to people and he does that in front of everyone.” As set out above, this suggests that [NAME_56] behaved in the same way towards all staff, not just the claimant.

40. The tribunal was taken to numerous examples of message exchanges between the claimant and [NAME_67] where she undermined the second respondent’s authority with the recruitment consultants and other employees. She talked about the second respondent in derogatory terms, criticizing his personality and projecting a view of his actions which talked about neurosis (for example). Her comments did not recognise the second respondent’s right to make decisions about the business. The documents also showed that when under pressure the second respondent might get frustrated and express that frustration (maybe with justification and maybe not) but this frustration was not aimed at the claimant specifically. It was generalized and aimed at whoever was responsible for getting things wrong in the particular context (in the second respondent’s opinion).

41. The claimant alleged that on 25 January 2023 [NAME_56] fired questions at [NAME_35] and made her flustered. We have no context for this assertion and cannot make a positive finding whether it took place or not. However, the claimant’s assertion here underlines the fact that she was not singled out for such treatment, even on her own account. The tribunal was directed to consider page 616. The tribunal was not prepared to rely on this as evidence in the way that the claimant wanted given that no names were mentioned and it was not put in any context. There was no way of knowing if it confirmed what the claimant asserted in her witness statement. In any event, it indicated that the second respondent treated everybody the same rather than singling the claimant out for particular treatment.

42. On 8 February the claimant alleges there was an incident with a recruitment consultant being singled out by the second respondent (paragraph 31 of the witness statement page 747). On reviewing the documents, the tribunal concluded that it reflected generalized grumbling within the office.

43. Counsel for the respondents asked the tribunal to accept that all these messages showed that the claimant is not a credible historian because the documents don’t show what she says they do. Counsel submitted that the claimant was using messages to ‘retrofit a case’ to show that she was being

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picked on and singled out, whereas the evidence actually shows a general pattern of the second respondent’s treatment of others. She also submitted that the documents show the claimant’s attitude towards the second respondent right from the outset and that she was disrespectful in relation to him.

44. The tribunal concluded that, in reality, both parties were pretty consistent in their behaviour from the start of the claimant’s employment. The pattern was set in 2022. The claimant did not like the job and did not like the second respondent from the very beginning. She had little respect for him and undermined him with other employees. She did not recognise his entitlement to run the businesses as he preferred. For his part, the second respondent probably displayed a short temper and probably did not deal with problems arising in the business (or mistakes being made by employees) in the best or most constructive way. However, the tribunal finds that he was like this with everyone. He did not treat the claimant differently. More importantly, it was like this from the start of the claimant’s employment, well before any issues relating to disability came into the picture. The pattern was set prior to disability-related issues arising. It was consistent over the totality of the employment period and across the whole workforce, not just with the claimant. The tribunal can see this from the comments made by other employees within their messages. The tribunal also observed that there was no real change in the second respondent’s approach to the claimant once the issue of her disabilities arose. The tribunal also observed that the claimant included every potential allegation and was keeping a log of events from an early stage in the chronology. Even before the end of 2022 the claimant’s partner was suggesting that the claimant might want to find another job elsewhere. Some of the documentation might suggest that the claimant was attempting to build a case. For example, the claimant asserted that the second respondent was sexist in part of the documentation (July page 792-793.)

45. There were numerous examples in the evidence where the claimant asserted that [NAME_56] was micromanaging her. For example, she asserted that he was counting how many times colleagues went to the toilet. She reported this to her partner on 16 November 2022 [page 773] where she said, “I’ve just said to him about I feel like I’m being micromanaged, he has counted how many times people go to the toilet fooking sad cunt x.” The respondent’s position was that he was not counting toilet visits per se but rather had legitimate concerns about the amount of time that some employees spent away from their desks. As far as he was concerned, he was entitled to ensure that his employees were spending the working day doing their jobs. What might have been presented as a toilet break could just as easily be an opportunity to waste time. The reality is that the tribunal cannot know whether [NAME_56]’s suspicions about his employees were well- founded or not. However, as director of the business, he was entitled to monitor productivity and ensure that his employees did not waste time during working hours. The fact that the claimant chose to characterise this as “counting toilet breaks” indicates a lack of respect for the second respondent and a failure to recognise that he was seeking to run a company efficiently and profitably. He may not have been doing this in the way that the claimant approved of, but the claimant seems not to have acknowledged

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that he was, in principle, entitled to monitor the work of his employees. When it was put to the claimant in cross examination that she was trivializing [NAME_56]’s concerns, the claimant stood by her assertion that he was merely counting toilet breaks. She described it as neurotic behaviour. She tacitly accepted that her comments expressed contempt for [NAME_56] (albeit this was only said to her partner rather than other colleagues.)

46. The claimant alleged that [NAME_41] was singled out by the second respondent on 13 February 2023. In cross examination, it was put to the claimant that she undermined [NAME_56] with his employees. For example, on 13 February [page 749] she told [NAME_41] that the second respondent was projecting his own issues onto [NAME_67], that it was the second respondent not [NAME_67] who was at fault. In effect, the claimant was encouraging subordinate employees to disregard or ignore the second respondent and any feedback he chose to give them.

47. The GP’s letter [page 676] suggests that by February 2023 the claimant was experiencing different symptoms which were more suggestive of pre- menstrual dysphoric disorder (PMDD). At certain parts of her cycle she was having increased feelings of anxiety, feeling overwhelmed, being unable to sleep, feeling as though her skin was burning, and feeling unsteady. Over the subsequent months the GP records that they made some adjustments to the claimant’s HRT and she was seen by endocrinology who made some other suggestions for tweaking her treatment and also mentioned that cases like the claimant’s are often challenging to treat with medication.

48. The claimant also told the tribunal about an exchange she had with [NAME_41] on 22 February [paragraph 34 claimant’s witness statement]. The tribunal wondered why the claimant referred to this in the tribunal evidence. The tribunal also queried why she did not (as the second respondent’s “number two”) flag up these issues with the second respondent (in confidence) as something that he needed to address. Employees had apparently been encouraged to think that they could say what they wished to the claimant and “vent” to her without worrying that she was a director or that she would report this to the second respondent. The tribunal concluded that the claimant had set the tone for this so that colleagues could vent to her but she would not report this on to the second respondent or make him aware of issues in the businesses that he needed to deal with.

49. The claimant describes an incident which occurred on 24 February 2023. She says that she texted [NAME_56] to explain that she was not going to be in the office because of a lack of sleep due to her hormones. She says that the second respondent’s response was dismissive, so she forced herself to get up and get into the office for 9am. The relevant text message exchange is at page 688 in the bundle. It reads as follows:

[NAME_59]: [NAME_53], do you mind if I get in the office later this morning I’ve not slept well I feel exhausted not sure if my hormones but I don’t feel great at all! I’ve got to go in got a meeting at 2.30 with someone from [NAME_68] team to get this meeting sorted for social value. I just need some sleep.

[NAME_69]: Up to you [NAME_70] but you know [NAME_32] is off and I’m working from home as I’ve

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no car

[NAME_59]: I’ll get in for 9 I’ve said to [NAME_42] I’ve got to go to a site.

[NAME_69]: OK if you’re in a meeting about SV as the two of us and [NAME_32] agreed on Monday I need to be in it.

50. During the course of cross examination, the claimant maintained that this was abrupt and short. She maintained that [NAME_56] should have expressed care for her and made sure that she was okay. Whilst the text exchange could have been more caring and supportive, it is not dismissive of the claimant. It is neutral and businesslike. It sets out the factual circumstances and tells the claimant to make a decision. She is a director. It is a pragmatic and businesslike approach by the second respondent. In her response the claimant doesn’t suggest that she was under duress. She did not say that she would struggle in for 9am just that she would get in for 9am. And there is nothing to suggest that it put pressure on her to come to work when she was unfit to do so. As another director, the second respondent left it up to the claimant to make a decision about attending work. He did explain the staffing levels in the office, but this was a statement of fact. If the claimant was not fit enough to attend work, she was free to say so, irrespective of whether the second respondent was working from home and [NAME_32] was absent from the office. The tribunal understands the claimant’s interpretation of these text messages but has concluded that there is nothing objectively problematic or unreasonable about [NAME_56]’s text message. The tribunal also notes that this text exchange took place at about 7:10am, well before the start of the working day. Neither party is likely to have been sitting at a desk typing the texts at that time of the morning. There may well have been other things going on in their respective households. This is perhaps a more likely explanation for the brevity of the text messages than any intention to place pressure on the claimant.

51. The claimant alleges that she sent a further text message to [NAME_56] on 28 February indicating that she would be absent from work because she was not feeling well. The claimant maintains that she texted because [NAME_56] had not answered her calls. However, the tribunal could not locate the text messages referred to within the hearing bundle. Without seeing the text itself the tribunal was not prepared to accept that the second respondent had done anything wrong on this occasion. He may not have been able to answer the phone. Much would depend on what time of day the claimant had called him but there was no evidence before the tribunal of that.

52. There was a further text from the claimant to the second respondent on 1 March 2023. It was at 6:58am: [NAME_59]: [NAME_53], I’m really sorry I won’t be in today it’s definitely my hormones I’m all over the place I’m going to make an appointment back at the drs going up an extra pump has knocked me out of sync I already suffer with pmdd which is controlled by antidepressants I feel in the past 6 days bang it’s back. Reading up on it 3 pumps is best split into twice a day this is not what my GP said so this might explain something on why I feel I can’t function! Bet you’ve glad you’re a man! Sorry for the long text I don’t want you to think I’m taking the p^^s”

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The claimant says that this is the date on which she disclosed her condition to the respondent. It is certainly true that she referred to PMDD by name although she did not spell out its effects or symptoms. She maintained that it was controlled/treated by antidepressants. That said, the condition was at least flagged up to the second respondent, and he could have asked for more information about it had he been so inclined.

53. Later on 1 March, [NAME_27] contacted the claimant to offer support [page 600]. This was at the second respondent’s instigation. She sent an email at 10:30am which stated: “I’m emailing you from my personal email. [NAME_53] mentioned you are not great at the moment [sad face emoji] I’m sure you have lots of friends but having gone through a really shitty time with the Menopause if you want to talk at all I’m a great listener and had so many things going on when I had it I may be able to help, if only being an ear. Totally fine if you don’t want to either I just had people I can talk to and it helped me a lot not to feel I was losing my mind as I went through it early so a lot of my mates hadn’t got much understanding.” This was a very supportive email and was sensitively drafted in a genuine attempt to help and support the claimant. It was up to the claimant how she chose to proceed. If she did not want to have [NAME_28]’s assistance that was her choice but, equally, she could go to [NAME_28] for support if required.

54. During the course of the tribunal hearing the claimant alleged that this was an instance of [NAME_56] disclosing the claimant’s medical condition without the claimant’s consent. The respondent’s position was that [NAME_56] instructed [NAME_28] to approach the claimant about this because he thought it was a better way to offer support to the claimant than to address it directly with her. It appears that he did not check with the claimant that this was okay or acceptable to her. Therefore, the claimant did not have the opportunity to object to this approach.

55. The tribunal concluded that, technically, this could be seen as a breach of confidentiality. Some employees would see it that way and others would not. However, the claimant had disclosed this information for a purpose-she apparently needed help. She expected the second respondent to do something with the information. He disclosed very limited information to [NAME_28] for the purpose of helping the claimant out. He did not, apparently, go into detail. A counsel of perfection would require [NAME_56] to ask the claimant for her consent before telling [NAME_28] and to specify what he would tell her and for what purpose. However, the tribunal is not assessing the claimant or the respondent by the standard of perfection. The tribunal is looking at the reasonableness and appropriateness of the parties’ conduct. As ever, context is everything. This was a limited and technical breach of confidentiality in order to assist the claimant. The second respondent had not disclosed the information to make her the subject of office gossip or to embarrass her at work. The tribunal has concluded that the claimant is making more of this after the event than she felt at the time. She did not complain or object to the second respondent or to [NAME_28] at the time. The tribunal takes the view that this is part of the claimant ‘retrofitting’ her case. Her outrage at this disclosure was not apparent to anybody at the time.

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56. The tribunal is satisfied that this was a genuine attempt on [NAME_56]’s part to provide appropriate support to the claimant in a sensitive way. In particular, he had selected someone who had some personal understanding and experience to draw upon in supporting the claimant. He concluded, reasonably in the tribunal’s view, that [NAME_71]’s email would be more positively received by the claimant than an approach direct from the second respondent. Furthermore, although the claimant objected to this during the tribunal proceedings, she did not object to it at the time. She did not alert either [NAME_56] or [NAME_72] that this was a problem or that she felt it was inappropriate or intrusive. The contemporaneous documents do not suggest that the claimant was offended or upset by this at the time. It is not clear to this tribunal at which stage in the chronology the claimant concluded that [NAME_56] had behaved inappropriately in taking these steps.

57. The claimant returned to work on 2 March 2023 after three days of sickness absence. A return-to-work form was completed and was available at page 372. It recorded that the reason for absence was, “extreme reaction to HRT- Dr appointment Thursday morning hormones out of sync blood tests Monday 3.35.” Although the claimant did not attach a doctor’s note she indicated that she could obtain a doctor’s note if it was required. The tribunal noted that the return-to-work form made no reference to PMDD and gave no further information about the claimant’s symptoms or the impact of her condition on her day-to-day ability to work. Nor did she request reasonable adjustments in the form. The form itself does not suggest that the claimant has a long-term problem, as such. The return-to-work form does not explicitly refer to a disability but leaves the respondent to deduce what is going on with the claimant’s health. Having said that, there are text messages around the same period in the chronology and the respondent has conceded knowledge of the disability from the point that the claimant returned to work in March 2023.

58. There were further text messages between the claimant and [NAME_55] in the bundle. Notably on 3 March the claimant texted [NAME_55] to say [page 774] “Morning did you sleep okay. My god get me out of here this guy is a fucking moron the way he speaks to people. Get house sorted I’m going to set up on my own x.” This suggests that the claimant had already made a decision that she was going to leave her was employment with the respondent and set up her own business. This comment followed on from [NAME_55]’ suggestion that they look for a new job for the claimant in the New Year (i.e., 2023). She continued (after a redacted portion) by saying, “I’ll tell you later what he’s been saying someone will end up taking him to a tribunal. Okay have a nice day x.” The claimant did not tell us what had happened in the day or so since her return to work to provoke that message.

59. There was a further exchange by text between the claimant and [NAME_56] on 7 March starting at 6:44am (691]. The exchange was as follows:

[NAME_59]: [NAME_53], please give me a call when you can.

[NAME_69]: I’m trying to get kids sorted what’s up

[NAME_59]: I’m really struggling sorry to pester you. I’m really not in a good place I feel totally floored I don’t know what to do.

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60. The claimant criticised [NAME_56] for not responding further to this message. The tribunal can understand that if the claimant was unwell, she was likely to be struggling at this point in time. However, the claimant was employed as a director of the first respondent. She was in a senior role. It is unclear what she was asking [NAME_56] to do. Indeed, in many of the exchanges between the claimant and others when she is ill, she is advised to take it easy, rest up, see how she feels, and come in later if she feels up to it. The claimant would know what her options were in such circumstances. She had to decide whether she was fit to attend work or not. If she was not fit to attend work, she needed to notify colleagues at the business that she would not be working. If she decided to come in late once she had rested, she needed to tell the respondent that. Either way, the choice was hers and hers alone. Only she could decide what she was well enough to do and then communicate that decision to those within the business who needed to know it. This is reflected in the “advice” that she received from the women in the business when she contacted them on the subject. Viewed in that context the claimant’s criticism of [NAME_56]’s failure to respond is somewhat overstated. Looking at the exchange from [NAME_56]’s point of view, he had been contacted early in the morning by text by the other director in the business. She was indicating she was unwell but not indicating why she needed to speak to him. He knew as well as the claimant did, that she had to make a decision about her fitness to work. She had not indicated what assistance she needed from him. Given her seniority in the business, it was not unreasonable of [NAME_56] to expect the claimant to contact him if she needed anything further. As it was, [NAME_56] did contact the claimant at 9:37am:

[NAME_69]: [NAME_73] has an interview this morning in Wilmslow. Give her a call after lunch re WD.

[NAME_59]: Done

61. The claimant must have gone into work or worked from home that day because she later contacted [NAME_56] by text at 11:17am to indicate that [NAME_61] wanted to speak to [NAME_74]. She asked [NAME_56] to call [NAME_73]. She followed up on this with [NAME_56] in a message at 12:50pm. He responded to confirm, “her interview went well today [NAME_152] in Wilmslow. She’s happy to speak or see [NAME_61] if he wants a chat over the phone or teams just let her know so she set up her laptop or make sure she’s free.” The claimant replied, “She only wants perm now.”

62. The claimant criticises [NAME_56] for failing to respond properly to all her messages. However, we can see from this exchange later in the day that the claimant asked [NAME_56] to do something and criticises him for not responding but we can see that he actually completes the task that she asks him to do and then texts back to confirm that he has done what she asked him to do. Respondent’s counsel alleged that this was part of a pattern. She suggested that the claimant would be off work sick, would initiate contact with [NAME_56], ask [NAME_56] to do something and was then upset when he responded and contacted her during sick leave.

63. At about 9:23am, before [NAME_56] had responded to her initial messages, the claimant had initiated text contact with [NAME_44] [620]. The exchange was as follows:

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[NAME_59]: [NAME_77], sorry to message you I messaged [NAME_53] and I just get trying to sort kids out what’s up! I’ve told him I’m struggling he hasn’t responded I’ll let [NAME_42] tell you the rest. I’ve been tossing and turning all night pains in my tummy sore joints this morning I feel totally floored I’m embarrassed frightened I’m going to lose my job. I’m going to call my doctors again today because I can’t continue like this x. [NAME_78]: Oh [NAME_70] I’m so sorry xx you’re doing the right thing getting back to the drs. Let me know how you get on xx I know it’s easy for me to say but try not to worry xx

64. On 8 March, the claimant texted [NAME_56] again at 6:50am (page 695), “[NAME_53], I’m still the same I won’t be in. I’m know you’re on leave from tomorrow so I will try my best to come in. I couldn’t get an appointment yesterday at the drs they’ll just want to sign me off which I don’t want. Please be patient with me I’m hoping this is due to my hormones being so out of balance. When your back it might be worth having a meeting with you and maybe [NAME_24] on how I move forward and what support I might need. I’m going back to bed if you need me give me a call.” Although the claimant criticises [NAME_56] for putting her under pressure when she was off ill, we can see that she actually invited him to call her if he needed her. This text is the first record of the claimant suggesting that she might need adjustments or support at work to address the problems arising from her medical conditions. (In her witness statement the claimant alleges that on 8 [NAME_56] contacted her via text message asking her to carry out work duties when she was off poorly [p698], but this is not what the text messages on page 698 actually say. It is true that there is no text response to the claimant’s text message at 6.50am. The next message is from [NAME_56] at 12.26 when he says, “[NAME_79] available now. Waiting on [NAME_73] hearing back on interviews.”

65. It was shortly after this that an informal ‘buddy ‘arrangement was agreed and implemented. The claimant was critical of this in her witness statement (paragraph 49). She maintained that the workplace buddy was given to her without discussing it with her and that this had no real benefit to her. She complained that [NAME_27] did not support her with any job duties or tasks. She says that [NAME_27] told her that she had no understanding of her PMDD. (The Tribunal has seen no evidence to support this assertion.)

66. The tribunal was not satisfied that all of the claimant’s complaints about this were justified. We found that the issue of a work buddy is likely to have been discussed with her informally at some point given that she had requested a discussion about support. We are satisfied that this is a support mechanism that the claimant agreed to try. She says now that it was of no real benefit to her but it is difficult to see what more the workplace buddy could have done. The respondents were powerless to resolve the claimant’s underlying health condition. They just had to find the best way to help the claimant manage it at work. The difficulty is that the claimant was working at Director level and was supposed to act as [NAME_56]’s ‘Number Two.’ There was therefore a limit to the amount of support that others could offer with her job duties or tasks. Indeed, the tribunal is not satisfied that this was the aim of offering [NAME_28] as a work buddy. It was not suggested that [NAME_28] would be able to take on aspects of the claimant’s job role. Rather, the idea was that she could offer the claimant emotional and psychological support and a

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sympathetic point of contact with the business. There was a limit to what else the respondents could reasonably offer given the nature and seniority of the claimant’s role, the small size of the business, and the inability of anyone at the respondents to improve the claimant’s symptoms (this being a medical issue.) In any event, there is evidence in the bundle to show that [NAME_28] did what she could to support the claimant.

67. In any event, during her oral evidence to the tribunal, the claimant accepted that there was an agreement that [NAME_28] would be an informal point of contact for her. She accepted that this was agreed at a meeting but that it was not a formal meeting. When it was suggested (during cross examination) that the claimant could contact [NAME_28] every morning, the claimant denied that this was the agreement or that she knew she could do this. She maintained that, although she could discuss the symptoms with [NAME_28], she could not discuss what adjustments she needed with her. The claimant accepted that she was in regular contact with [NAME_28] over the period from March to June 2023. She also accepted that she spoke to [NAME_28] face- to-face if both of them were in the office at the same time. She denied phoning [NAME_28] out of office hours.

68. The claimant also suggested to the Tribunal that she was not able to have sufficient breaks. However, there is no evidence that the claimant asked for extra breaks or that she felt that she needed to ask permission for this. The reality is that nobody actually monitored the claimant’s breaks, given her seniority within the business. The claimant had a great deal of autonomy in her role and could choose her own breaks.

69. The claimant alleges that [NAME_41]’s counselling days were not recorded as sick leave, whereas the claimant’s days were, thereby reducing her sick leave entitlement. The tribunal does not know what arrangements were made for [NAME_41] or why such arrangements were made. The respondents may well have had good reason for any arrangements they made regarding [NAME_67]. Indeed, this might have been a required reasonable adjustment for [NAME_67]. We have no way of knowing. Just because an employer gives something to one employee it does not necessarily mean that they are obliged to give it to the whole workforce. Each employee’s circumstances will differ and so will the employment arrangements which are put in place for them. The claimant implies that giving [NAME_67] a benefit is a disadvantage or is otherwise unfair to her. That is not necessarily the case.

70. On 9 March the claimant alleges that she was unwell but forced herself to go into work because the second respondent was due to be off work. She was dismayed to find that he was sitting in the office at work when she arrived. However, the tribunal heard no evidence that the claimant had been told to go into work on this day because the second respondent would be off work. We cannot be satisfied that she found that she had struggled into work for no good reason. We have no evidence to show that the claimant was entitled to be upset at being brought into work unnecessarily. Indeed, the second respondent may well have gone into work because he knew that the claimant would not be in and that his presence would be required. The

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tribunal was not content to find that the claimant was entitled to feel as upset about this as she maintained in her evidence.

71. The tribunal noted that there is a gap in the series of text messages in the hearing bundle between the claimant and the second respondent. The next text message in the bundle related to 13 June. It was not clear whether this gap in the text messages reflected a break in the flow of messages between the claimant and the second respondent or whether messages were exchanged during this time period but were not included in the hearing bundle.

72. On 29 March (page 704) there is an example of the claimant asking [NAME_28] for guidance and advice. The claimant explained that she was struggling and felt ‘wiped out’ again. She asked [NAME_27] what she should do. The response was, “Oh no poor you. Perhaps sleep this morning till lunch and pop in this aft if you feel better? 4 more hours may do the trick. The new charge rates are going out today so I’m guessing he will want some input from you.” The claimant indicated that she would be in that afternoon and thanked [NAME_28]. [NAME_28]’s closing comment was, “See how you feel x”. This is a good example of a typical interaction between the claimant and [NAME_28]. [NAME_28] was sympathetic and supportive and made appropriate suggestions. She did not put pressure on the claimant and said that the claimant should see how she felt (i.e., she should see if she felt up to coming into work and if not, she shouldn’t.) The tribunal struggled to see what else could have been done by [NAME_28] or the respondents in this sort of situation.

73. On 14 [NAME_23] emailed the claimant an internet link for information regarding the menopause as she thought it might be of interest to the claimant [page 627.] Importantly, she closed the email with, “Let me know if you don’t want to receive info from me.” This is an example of the respondents giving the claimant a right of refusal and some control over what she was offered. She was not put under any pressure to accept the assistance and she was free to ignore any advice or information which was offered.

74. In April the claimant’s contract was varied. The updated contract document [page 291] was signed by [NAME_56] on 25 April and by the claimant on 9 May. It made changes to sick pay entitlement and to the length of the claimant’s lunch break. The lunch break was reduced from an hour to half an hour. The claimant was not happy about the variation but she signed it, nonetheless. She did not stand her ground as a director and refuse to agree to the change. Equally, it does not appear that [NAME_56] consulted her about it either, given that she was actually a director in the business. In this regard he treated her more as another employee rather than as a fellow director. One might have expected to see evidence of consultation between [NAME_56] and the claimant about issuing new contracts to all employees.

75. On 18 April the second respondent emailed staff requesting that site visits were not booked on Mondays or Fridays as these were the busiest days in the office [page 961]. On 21 April the claimant scheduled a site visit on a

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Friday, apparently contrary to the second respondent’s instruction to avoid Mondays and Fridays for such visits.

76. On 25 April there seems to have been some form of argument between the claimant and [NAME_56] about the site visit that had been booked contrary to his instructions. The claimant did not give a consistent response as to why she was apparently disobeying instructions about the site visit on Friday. She was not saying that this was an exceptional occasion where she was justified in making an exception to the general rule. In cross examination she accepted that she did not have permission to book that visit. It was put to her that she did not respect [NAME_56]’s wishes. She gave the tribunal the impression that she was ignoring [NAME_56]’s instructions because she did not want to comply with his instructions.

77. On balance of probabilities, the tribunal finds that this blew up into an argument in an open plan office where both the claimant and the second respondent lost their temper. There were voices raised on both sides. The second respondent tried to get the claimant to go into a private area with him and take the dispute off the ‘shopfloor.’ In order to do this, he said, “[NAME_70], office now!” The claimant did not wait until she got into the separate room. The tribunal finds that she shouted across the office that the second respondent was an “arsehole.” She did this in front of the other staff. The other evidence before the tribunal demonstrates that, when frustrated, the claimant would use this sort of language about [NAME_56] in her text messages. It is likely that she would shout this at him too. Even in her witness statement the claimant accepts that she raised her voice. This whole incident seems to have been a case of raised voices on both sides of the argument with each side as much to blame as the other about the tone of the exchange.

78. The claimant says that in a meeting with the second respondent he said that she had lost her ‘mojo’ and she was not as confident as he thought she would be. The claimant says that the second respondent compared her to his partner. The respondent’s case was that this was a meeting to raise issues of concern regarding performance with the claimant. In cross examination the claimant denied that [NAME_56] raised issues with her about her performance during this meeting. Rather, she contended that he was negative about other people.

79. At 7:03am on 26 April the claimant sent a text message to [NAME_28] (page 707). She said, “[NAME_28], I haven’t slept at all, the last 2 days I have been struggling again with my hormones and yesterday’s events haven’t helped. I came home and just cried. Last week I felt a lot better and full of beans then a talk with [NAME_53] on Friday I really feel has had a negative impact on me. Trying to articulate to [NAME_53] on how he makes me feel and the fact the role I was told it would be and what it is now is completely different. I know I’m on 15 men and yes I could be better and I truly wanted to make things work my last 2 companies 6.5 years service I’m not a quitter. I’m a strong person and feel beaten down. Please give me a call I’m really struggling on whether staying is the right thing for me especially on how and what my

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body and mind is experiencing.” [NAME_28] texted back saying, “Hi. Will do just let me get son up x.” The reference in the claimant’s text message to being ‘on 15 men’ tends to suggest that the previous discussion between the claimant and the second respondent did involve [NAME_56] raising performance concerns and issues with the claimant rather than just being negative about other people within the workplace. The claimant’s own text message tends to support the respondent’s version of events at this meeting.

80. The claimant clearly texted [NAME_28] outside of working hours. We note that the claimant was already discussing leaving her job by this stage in the chronology, she says because of the second respondent’s behaviour. The respondents say this was because the job was different from what the claimant had expected and she was not used to being a director in a micro- business. In effect, the claimant had realised that she was not suited to the role. By this stage in the chronology the claimant had been released from her restrictive covenants with her previous employer and yet she refers to 15 people she had recruited. Was the claimant underperforming? Was she struggling with the role or struggling with her health and the second respondent’s behaviour?

81. On 27 April there was a meeting between the claimant, the second respondent and [NAME_27]. The claimant asserts that she was told not to work from home and that she needed to be in the office in order to keep an eye on others. The respondent’s position was that it was a meeting to see how they could get the claimant’s work back to where it should be. The claimant accepts that they discussed how taking time out of the office or away from her desk could contribute to a drop-off in her numbers. The respondent’s case was that an agreement was reached that once she was well enough to work, the claimant would work from the office for the next 6 to 8 weeks. On the other hand, the claimant’s position was that she was told that there could be no working from home and there was no discussion about whether she was well enough to come into the office.

82. The tribunal has reviewed the documentary evidence and the witness evidence given during the hearing. Based on the available evidence, the tribunal finds that there was an agreement reached between the parties on 27 April that, as a short-term measure, the claimant would stop working from home one day per week. This was in order that the claimant could get her “desk” and numbers back up to the required standard. This was to be the case for 6 to 8 weeks. It was not to be a permanent arrangement. We are satisfied that this was done by agreement with the claimant and was not imposed on her unilaterally. It was nothing to do with the claimant’s disability. After the 6 to 8 week period the claimant returned to her previous pattern of working from home for one day per week. Indeed, the email sent by [NAME_24] on 19 June (page 629) indicates that the claimant was expected to be working from home every Wednesday at that point in the chronology. This conclusion is also supported by the evidence and conclusions obtained during the external grievance investigation (page 352-353). The tribunal does not accept that this change was imposed on the claimant as a detriment. The contemporaneous records do not support that. Furthermore,

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the claimant engaged in a text exchange with the second respondent later in the evening of 27 April (page 890). In her message the claimant stated, “I’m glad we’ve cleared the air I’m not going anywhere I know we are on the brink of something amazing! You were right [NAME_28] is ace. Hope you got the kiddies sorted see you tomorrow. [Smiley emoji]” This would tend to suggest that the claimant was much more positive about the conversation on 27 April than she suggested to the tribunal.

83. From May 2023 the claimant says that she started to make use of monthly well-being meetings with [NAME_23].

84. From May 2023 the second respondent had concerns that two of the recruitment consultants were not pulling their weight and making calls. He felt that he had to be ‘on them’ all the time. This seems to have been a genuine issue that he wanted the claimant to help him manage. The claimant however trivialised this as the second respondent “counting loo breaks.”

85. On 11 May there was a text exchange between the claimant and [NAME_28] where the claimant sought [NAME_28]’s support [page 710.]

86. On 16 May the claimant says that she wanted to work from home as she had had no sleep. The claimant texted [NAME_28] (page 712). She asked if she could come in a little later. [NAME_28]’s, response was, “I’m sorry Mrs not good, get in when you can. [NAME_53] off and I was due in at 8 but I’ve got Covid (bones hurt, shitty cold and headache) so if you could cover us at some point we’d really appreciate it.” The claimant responded, “Oh no I’ll get in for 9 hope you feel better soon x” [NAME_28]’s further response was, “Awww thank you. I’m sorry I can’t cover you. Just come round first let your body get up slowly.… Could you email the lads to let them know when you are in please? My iPad currently downstairs so I’m waiting for it to be brought up or I’d do it for you.”

87. The claimant says that she struggled to get to work feeling very unwell. The respondents say that the text messages show [NAME_28] being supportive and that there was no suggestion that the claimant should come into work if she was not fit to do so. The tribunal observes that the claimant was a director and should, all other things being equal, have been able to decide not to come to work if she was not fit to do so. She did not need to seek or get reassurance from [NAME_28]. The claimant says that she always felt under pressure to work even when it was against her own interests and felt that she could not say no. However, the claimant does not seem to have communicated this to either the respondent or [NAME_28]. This may have been how the circumstances made the claimant feel but this is more a consequence of them all working in a small business than of the respondents exerting undue pressure on staff to work when they were too ill to do so.

88. The tribunal reviewed the claimant’s contemporaneous text exchange with her partner (page 780-782). It appears that the claimant’s working from

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home arrangements had resumed by this stage as [NAME_55] refers to her working from home the next day. In her exchange the claimant says, “Well I’ve not been very productive today I’ve logged about 3 calls. He’s off and [NAME_28] told me I had to go in because she has covid! This is the woman who quit her job because of menopause x.” This misrepresents the content of the text exchange between the claimant and [NAME_28] that we were referred to. The claimant had asked to come in late rather than to work from home or stay off work altogether. [NAME_28] had just explained the staffing situation and her own illness. She was stating facts. She did not say that the claimant had to come in to work. Rather, she indicated that it would be appreciated if the claimant could provide cover, at some point. It was the claimant who said she would get in for 9am. [NAME_28] had been apologetic that she couldn’t cover the claimant. This is not what the claimant reported to her partner.

89. On reviewing the above evidence, the tribunal finds that this is evidence of the buddying system working as it was intended to. The circumstances were difficult to manage in a small business where more than one person was ill at the same time. It was just a consequence of the size of the business.

90. On 18 May the claimant sent further texts to her partner (page 783). The claimant did a screenshot of one of [NAME_27]’s messages to her and sent it to her partner. This was itself a breach of confidentiality by sending work-related conversations outside of the business.

91. On 31 May the second respondent had a hernia operation which required him to take two weeks away from the office.

92. In June 2023 the claimant tried to come into work later because of sleep issues that she was experiencing. There were text messages between the claimant and [NAME_28] on 5 June (page 714). [NAME_28] told the claimant to go back to bed and that she, [NAME_28], was in the office. She asked the claimant if there was anything that the claimant needed her to do. She was offering support and assistance. It is not true to say she did not do tasks or offer to do tasks for the claimant when the claimant was unwell. This is an example of [NAME_28] actually trying to help the claimant perform the duties associated with her role. The claimant is wrong when she seeks to suggest that she was not supported in her substantive post at all.

93. On 8 June the claimant texted [NAME_28] to say she was struggling and would be late, although she was getting in as soon as she could. [NAME_28] reassured her, said it was no problem and told her to take it steady.

94. In the week commencing 12 June the [NAME_82] was admitted to hospital.

95. In mid-June there was an informal well-being meeting between the claimant and [NAME_23]. The claimant says that she asked for reasonable adjustments regarding sensory, cognitive and heat issues. We are satisfied that there was a discussion around temperature, but it is not clear whether issues about light and noise were discussed. A number of meetings took place, and issues were raised including working from home. The claimant

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says that light and noise were raised. The tribunal is not satisfied that they were raised at this point. The tribunal is also unsure what the claimant was asking the respondent to do about issues of light and noise at this stage. We are not satisfied that this was really discussed. If it had been, we would expect to see some indication of what the claimant was requesting to address the light and noise issues. We cannot see that she asked for any particular adjustments relating to light and noise in the work environment (at any stage.)

96. The claimant accepts that by 25 June she had had her working from home day reinstated. She maintains that she had to ask for it as it was not offered to her. The tribunal finds that the removal of working from home for one day per week had only been a temporary measure to enable the claimant to improve her performance over the course of 6 to 8 weeks. The claimant did not, therefore, have to request its reinstatement. This was always the plan and it was implemented as previously agreed. Indeed, the claimant’s own text message at page 786 indicates that, in fact, working from home was reinstated from 14 June rather than 25 June. We are satisfied that working from home was reinstated from the middle of June, most likely 14 June.

97. On 23 June the [NAME_82] was diagnosed with a terminal brain tumour.

98. Around 26 June claimant exchanged text messages with her partner (page 787) which referred to the temperature in the office. She stated, “… I’m struggling today the office is so hot people complaining it’s too cold because I want it cooler I’ve just had to go outside and I’m having a full hot flushes x.” The tribunal finds that this is evidence that the claimant had raised the issue of temperature in the office and that the respondent had turned down the temperature (insofar as it could) when she raised the issue. The very fact that people had complained that it was too cold suggests that the temperature had been turned down at her request.

99. On 27 June the claimant came to work late.

100. On 28 June there was an email from [NAME_23] to the rest of the office regarding air conditioning (page 651). The email stated, “The air- conditioning in the office will be set at 20 degrees going forward, please do not adjust the temperature. This temp will be monitored over the next few days. We appreciate that this temperature may not suit everyone, in the meantime please use other methods to cool down/keep warm whilst this is being reviewed. Any questions please let me know. Thanks for your understanding.” This is clear evidence that the respondents had taken steps to try and reduce the temperature in the office and to test whether this could be made to work for all employees. During cross examination, the claimant did not accept that the email showed that the temperature had to stay at the settings specified even though people had complained. This is contrary to the natural reading of the email itself. In her witness statement to the tribunal, the claimant described what she says happened when the email was sent out to the office. She says that she had no forewarning that it was being emailed but just looked up from her desk to hear comments from [NAME_7] to the effect that, “we all know who that’s about.” She asserted that if anyone felt too cold the second respondent made comments such as,

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“it’s women’s problems, you know issues” and laugh. She says that she was made to feel humiliated and was sick in the toilets. We noted that the email itself was sent on Wednesday, a day that the claimant did not, typically, work in the office. It is therefore questionable whether she was there in the office to see the reaction when the email was sent. On balance, the tribunal concluded that the allegations in the claimant’s witness statement paragraph 80 did not have the ring of truth about them. We concluded that, if these events had taken place, it is likely that the claimant would have sent a text about them to someone, if only her partner. This was especially true if the claimant was vomiting in the toilets at work. The tribunal took the view that the words the claimant attributes to [NAME_56] are very cliché and very generic. Further, she gives no details about the other people who were said to have been complaining about it being too cold. Who was this and what was the detail of their complaint? Such a general allegation is easy to make. Likewise, the allegation that [NAME_56] spoke about “women’s issues” is a generic, clichéd, and easy allegation to make. We are not satisfied that there is evidence that he used this sort of language either on this day or on any occasion in the office within earshot of the claimant or other colleagues.

101. We also note that [NAME_23] indicated that she had sent the email regarding air conditioning without giving a reason as to why this was being done. She was not aware of any comments being made by other staff towards the claimant. She also maintains that, following the email, she had meetings with the claimant, and the claimant did not bring up the air- conditioning (i.e., in relation to comments that had been made or to suggest that it had not made a difference.) Ms [NAME_25] maintains that the claimant would normally tell her if there were any problems.

102. The claimant says that towards the end of June 2023 she mentioned to [NAME_23] that she would like a desk fan. [NAME_23] accepts that the claimant did ask for a fan. However, before the respondent was able to provide one for her, the claimant brought one in from home. As the claimant already had this fan at home (i.e., it was not a new purchase) the expense of the fan could not be reimbursed to her. We find that the claimant brought in the fan within 24 hours of asking the respondent for one. She effectively beat them to it. The net result was that the claimant had a desk fan within 24 hours of requesting one and she did not give the respondent a reasonable period of time to provide one for her before solving the problem for herself. Nor did she suggest that she needed to take her own fan home and wanted the office to provide a work fan for her. The issue was therefore resolved quickly.

103. On 3 July the [NAME_82] was transferred to a nursing home for palliative care.

104. Also on 3 July the claimant was struggling to come to work. She sent a text message to [NAME_28] at 7:05am (page 717). She indicated that she would be going back to bed and would not be coming into work. [NAME_28]’s response was, “Oh that’s not great at all! It’s just a rollercoaster for you. Will let [NAME_53] know. Perhaps see if [NAME_83] can hook you up with specialists in this area, I’m worried about you and how much this is taking its toll on you.”

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105. The next day, 4 July, the claimant had work to do but was still suffering from lack of sleep. She asked if it was okay to work from home. [NAME_28] said that that was okay, it would be treated as her work from home day that week.

106. On 5 July the claimant sent text messages to her partner, [NAME_55] about the “new lad” in the office (page 790). She was complaining that [NAME_56] allowed [NAME_48] to stay at home because his son’s teachers were on strike (i.e., there was a childcare issue.) The claimant felt that this was unfair and referred to the fact that she was struggling, she had to come in, and he had not even asked if she was okay. She went on to complain that the second respondent had accepted [NAME_48] coming into work at 1pm. She continued, “I think he is sexist… [Referring to [NAME_48]] He’s been here 5 minutes I’ve been here 1 year and he gets to do what he wants says he trusts him x So he obviously doesn’t trust me or anyone else.” In response to this [NAME_55] wrote, “Exactly. You need to write this down right now and discuss all tomorrow. It’s total discrimination x Or maybe you should think about leaving and set up on your own x…” The claimant also said, “Got him [i.e. the second respondent] by the bollocks they marked [NAME_42] down as no absences when he was taking days off for counselling I’ve taken pictures it even says counselling mine say sickness.”

107. The Tribunal finds that [NAME_48] was permitted to come in late and bring his son to work (to sit in the [NAME_34]) when the teachers were on strike and he had a childcare issue.

108. In addition, the tribunal could see that the claimant had taken a photograph of [NAME_41]’s personnel records on the work computer [page 915]. She had also taken a photograph of the absence tracker for all staff in the social enterprise [396]. The claimant accepted that she had not got employee consent to take these photographs. However, she maintained that such information was open to all and was not password protected. She could not see that she had breached anyone’s confidentiality or done anything wrong. We noted that this was something of a double standard given that the claimant objected to the nature of her disability being disclosed to a colleague for support purposes when she felt there was nothing wrong with taking a permanent record of other employees’ confidential work information.

109. The claimant alleges that in early July she was told to use the [NAME_34] if she needed it, but she asserted that the room was needed by other people for 99% of the time. She was also told she could use the communal kitchen. [NAME_23] could not remember saying that [NAME_53] was using the [NAME_34] for 99% of the time but she did remember saying that the claimant could use the room when it wasn’t occupied or the kitchen area if she needed space or quiet time, which the claimant did. The tribunal concluded that the respondent had done what it could in relation to providing quiet working spaces for the claimant. It had to work within the limitations of its office facilities. There was only one spare room, the [NAME_34]. The claimant could not, therefore, have guaranteed access to the [NAME_34] whenever she wanted it. The respondent had to manage the competing demands of the directors and employees for a quiet working space

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depending on the nature of the task under consideration. It could not provide an additional quiet workspace when this did not exist at the premises. There is no evidence, for example, that if the claimant had been in the same situation in relation to childcare arrangements as [NAME_48], that she would not have received the same answer about bringing the children to work or working from home.

110. From 5 July onwards the claimant claims that she was excluded from management meetings. However, the respondents’ position was that it was expanding the blue-collar area of the business. This was [NAME_48]’s area of the business. The respondent suggested that the claimant jumped to the conclusion that she was being pushed out. The respondents’ position was that these discussions involved an area of the business that the claimant was not involved in. The tribunal concluded that this was an example of the claimant not being involved in the conversations because the subject matter was not relevant to her. She was not being excluded or pushed out. Rather, the respondents were entitled to have the relevant people involved in the conversations at any given time.

111. At pages 804-806 we note that the claimant had text message conversations with friends outside the business which referred to her colleagues’ private business.

112. On 13 July 2023 the claimant had a private consultation with a medical specialist, [NAME_84]. This was sourced and paid for by the second respondent and was intended to help the claimant with her medical situation. In her evidence to the tribunal, the claimant alleged that there had been a conversation between [NAME_84] and [NAME_56] in the claimant’s absence and without her consent. Having reviewed the available evidence, the tribunal is not satisfied that [NAME_84] and the second respondent had a conversation about the claimant’s medical condition in the claimant’s absence or without her consent. We concluded that [NAME_56] had a limited discussion with [NAME_84] in order to make the referral to [NAME_84] for the claimant. In that context he may well have asked [NAME_84] whether the issues under consideration lay within her area of expertise. The claimant asked the tribunal to accept that the doctor and the second respondent had a conversation about her behind her back. The tribunal does not accept this allegation. It appears there may have been some discussion about obtaining or providing menopause training for the workforce but that does not relate specifically to the claimant, it is a different issue.

113. On 24 July the claimant sent the invoice for the [NAME_85] consultation to [NAME_56]. She did not send or disclose the resulting medical report to him at that stage. Whilst the second respondent did not ask to see the report, it is unclear why the claimant did not offer to give it to him. As it was not commissioned by way of an occupational health report, if the claimant did not send it to the respondent, it would not automatically be disclosed to him in the same way that an occupational health report would be. The tribunal noted that there was nothing in [NAME_84]’s report which referred to things that the claimant’s employer could do to assist her (e.g.,

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recommendations for adjustments at work etc.) It looks as though the claimant did not ask [NAME_84] for this sort of advice.

114. At paragraph 101 of her witness statement, the claimant says that she told [NAME_56] and [NAME_27] that the doctor had said it was very complex to treat PMDD during perimenopause as the symptoms are more severe and that [NAME_84] had said that she hoped that the claimant had flexibility at work. She states that [NAME_56] told her to keep things informal. However, when one reads [NAME_84]’s report it does not include any reference to flexibility at work. The tribunal would have expected to see some reference to workplace arrangements in [NAME_84]’s report if workplace issues had been discussed during the consultation between [NAME_84] and the claimant, not least because it was the claimant’s employer who had commissioned the report in the first place. Furthermore, we note that the claimant says that by this point in the chronology she had raised concerns about air conditioning, noise, and light in the workplace. The tribunal was therefore surprised that there was no evidence in [NAME_84]’s letter that the claimant had raised these concerns or work-related problems with her. The claimant does not seem to have asked [NAME_84] to help with providing solutions to workplace problems.

115. Although the respondents were not provided with a copy of [NAME_84]’s report at this stage in the chronology, the salient evidence provided by [NAME_84] is set out at this stage in order to provide a complete picture. [NAME_84]’s report was at page 678. It was in letter format and was addressed to the claimant’s GP. The letter was dated 13 July 2023. The salient points were as follows: a. The claimant had started taking HRT just less than a year prior to her consultation with [NAME_84]. The claimant had found that three pumps of HRT exacerbated her anxiety. b. The claimant was reported as having significant vasomotor symptoms, poor sleep and loss of energy, aches and pains, tearfulness, low mood, irritability, brain fog, urogenital symptoms, and loss of libido. c. The claimant had a long history of PMS/PMDD. Whilst sertraline had benefited her, she was advised against increasing this further and she was now finding the PMS/PMDD much worse, affecting her ability to work at times. d. The claimant was otherwise fit and well. The doctor summarised her medical status and recent history. e. [NAME_84] confirmed that she had discussed with the claimant menopause, its physiology, health sequalae and management options and how PMS is most prevalent in the lead up to the menopause and the reasons for this. She indicated that such cases are often challenging to treat. She made recommendations regarding the claimant’s use of medication and recommended an increased dosage of oestrogen. She gave further suggestions and advice in terms of future changes to medication and alternative medication options. f. [NAME_84] indicated that she had outlined the risks and benefits of HRT as well as alternatives. g. [NAME_84] concluded by hoping that the claimant would start to feel better and suggesting that she would require a review in three

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months’ time. She was happy for the GP to contact her with any questions.

116. There was an important series of communications on 9 August 2023. It took the tribunal a significant amount of time to unravel the various sources and get a clear chronology of the communications. At 7:03am the claimant sent texts to [NAME_27] (page 725). The exchange was as follows:

[NAME_59]: [NAME_28], I hope you’re ok. I’ve woke up not feeling great I feel sick and dizzy I feel like I could sleep all day. I won’t be in today x

[NAME_86]: Not great for you. Call you later I’m in the car from 9 x. [NAME_53] on his own today he had a mare with payroll yesterday. I think he was hoping you’d be in as [NAME_48] and I are out on visits today and he’s spending every min he can with his mum b4 she dies. See how you feel after you’ve slept.

117. There was then a gap in time. [NAME_28] did not speak to [NAME_56] immediately and did not pass on the claimant’s information straightaway. There were calls from the second respondent and [NAME_41] to the claimant at around 8am. The claimant did not answer the phone.

118. The claimant then sent a further text message to [NAME_28] at 9:33am (page 726). The exchange read:

[NAME_59]: [NAME_28], I wish I could go back to sleep before 8am I’ve had calls off [NAME_53] and [NAME_42]. I’m day 20 of my cycle PMDD starting to kick in seeing a consultant was just the start it isn’t a quick fix she said that, yes I have felt okay for the first week of my luteal cycle so it’s an improvement on last month I thought you and [NAME_53] had a better understanding you suffered with menopause and I’ve got PMDD thrown in the mix. For the last hour I’m sat at home crying to [NAME_87] because I feel I’m not supported and lack of understanding of my condition it’s a chronic condition I have no control of it. I fully understand [NAME_53]’s situation and I even changed my week off so I’ll be in the office. I need that week off but I thought I’d give something back it’s not my fault everyone is off at the same time. [NAME_53] has [NAME_58], [NAME_88] and [NAME_77] in the office today. I feel disappointed by the text I got earlier. Have a good day of visits.

[NAME_86]: [NAME_70]. I haven’t called as I thought you were sleeping. As I’ve been off I wasn’t aware from your text how bad you are at the minute. Take the time you need nothing has changed [NAME_53] is fully supportive as I try to be. I’m free after 1130 and b4 1 if you want to chat to me but understand if you don’t. Take care x

Although the claimant would seek to suggest otherwise, the text exchanges show that she was focused on her own situation and did not display a great deal of compassion for the distressing personal circumstances that the second respondent was experiencing. She went so far as to suggest that she had cancelled leave in order to come into work and provide extra

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support that week, however the email at page 628 suggests that it was the latter half of August where she cancelled her leave (21 to 23 August.)

119. On 9 August there was a further exchange of text messages between the claimant and [NAME_41] (page 758-760.) The claimant forwarded to [NAME_42] a copy/screenshot of the message [NAME_28] had sent her explaining the second respondent’s situation (see paragraph 116 above.) The claimant forwarded this message to [NAME_67] with the following comment, “Wtf-I wish I could get back to sleep today is day 20 or my cycle when PMDD can be at its worse my mood was okay but not I’m sat at home crying! I know if I come in things will probably end badly my anxiety now is through the roof!!” There is a further exchange referring to the second respondent on 8 August. Amongst other things the claimant asked, “Is he being a dick with everyone” The response from [NAME_67] was, “Yes. I’ve got a raging headache.” Again, these exchanges are unprofessional in tone and involved the claimant disclosing someone else’s text message to a third party, albeit another of the respondents’ employees.

120. At about 8:49am the claimant sent a text to [NAME_41] forwarding a document in PDF format titled “Employers Guide to PMDD” (Page 761). As she forwarded the document to [NAME_67] she commented, “I’m going to have to sit down and go through this document they don’t understand how I can feel. Is he kicking off? They already know.” [NAME_67] responded, “He isn’t kicking off. He just didn’t know where you was.” The claimant’s reply was, “There’s just no understanding at all I suffer from a chronic condition that was under control until I’ve started on HRT, I’m really disappointed by [NAME_28]’s text throwing in re [NAME_53] on his own and his mum dying it’s not my fault I’ve already changed having a week off which I bloody need because poor management of letting everyone be off! He’s not on his own your in, [NAME_58], [NAME_24] and [NAME_77].” [NAME_41] replied, “I know what you mean. It’s not your fault that you’re going through this and [NAME_53] is at the same time. It’s know one’s fault. You shouldn’t have to feel to blame for anything. You don’t want to be going through this.”

121. At 10:12am on 9 August the claimant emailed [NAME_84] to update her on how she was feeling. She updated [NAME_84] on the current state of her symptoms. In her email she said, “I have felt calmer until today felt pressured to be in work so that’s set me off feeling anxious.” [NAME_84] responded late at night on 10 August and stated, “Thanks for the update and sorry to hear you aren’t instantly better. I know you must be desperate to get back to yourself but I think we need to take a medium term view rather than react knee jerk to bad days as as you found before increasing your oestrogen quickly made you worse. By all means try the sertraline increase but try to resist changing a few things simultaneously or you won’t know what’s working and what’s not.”

122. The tribunal heard evidence that [NAME_56] had worked through the night in the office on payroll from 8 August through to the morning of 9 August. He had attempted to contact the claimant from 8am onwards. He had phoned the claimant and [NAME_41] had texted her. The phone log at page 907 shows that [NAME_41] tried to phone the claimant at 8.02am and that the second respondent tried to phone her twice at 7:59am. The earliest phone call was from [NAME_41] at 7:53am. The tribunal heard (and accepted)

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that [NAME_56] only tried to contact the claimant because he was unable to locate a crucial piece of information in order to complete the payroll run. The information should have been easy to locate in the office but could not be found. Hence, [NAME_56] tried to contact the claimant as something of a last resort as she was likely to know where the information could be found. Given that [NAME_56] had worked throughout the night and given that his mother was at the end of her life, the tribunal does not consider it unreasonable of [NAME_56] and the other employees to at least try and contact the claimant to get the information. The chronology discloses that there had been something of a breakdown in communication. The claimant thought that [NAME_56] and [NAME_67] were trying to contact her even though they knew that she was too ill to come into work, when in reality, that message had not yet been passed on to them via [NAME_28] as [NAME_28] was not in work that day. The claimant therefore interpreted [NAME_56]’s and [NAME_67]’s attempts to contact her as something akin to harassment or applying pressure on her to come into work when she was not fit to do so. However, she drew this conclusion without the benefit of the full picture. When [NAME_56] and [NAME_67] attempted to contact the claimant, they had no reason to believe that they were doing anything inappropriate or that she wished to be left alone. In the absence of this information, they did nothing wrong in trying to contact the only other director in the company for a crucial piece of information. As it was, the claimant had a choice as to whether to pick up the phone and answer the call. She did not answer when [NAME_56] phoned her.

123. The claimant alleges that she was put under pressure to attend work on 9 August when she was unwell and when she had told [NAME_28] earlier in the morning that she was ill and would not come into work. The respondents say that the message conveyed was that there was nobody senior in the office that day, hence it was hoped that the claimant could come in. Having reviewed the available evidence the tribunal does not accept that the claimant was put under undue pressure to come into work when she was not well enough to do so. [NAME_28] just explained the problems with staff availability. They were nobody’s fault and nobody was criticizing the claimant for this. The claimant’s contemporaneous text messages indicate that she was unable to see matters from [NAME_56]’s point of view, and she clearly had relatively little sympathy for the predicament that he found himself in. She was somewhat focused on her own difficulties and was prone to conclude that other staff and [NAME_56] were intentionally making life more difficult for her than they needed to. The reality was that this was a small business with only two directors. Unfortunately, both directors were experiencing significant and serious personal difficulties at the same time. The size of the business and the absence of other directors meant that there was no spare capacity in the workforce to cover either director’s absence adequately. This was, unfortunately, just the set of circumstances that the relevant parties had to contend with.

124. Having reviewed all the various sources and communications over what is actually a very short period of time, the tribunal finds that the claimant has unreasonably sought to characterise the communications from the respondents and their employees as putting unfair pressure on her to come into work when she was unwell. In fact, [NAME_56] was in difficult personal circumstances and was merely asking for information. He had not been told

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that she was ill at this point so he could not have known to avoid contacting her. On communicating with [NAME_28] and [NAME_42] they provided reasonable reassurance to her, particularly given that they were her subordinates and she was a director. Even after the passage of time, the claimant has sought to make something of this set of exchanges which is not supported by any reasonable and objective reading of the evidence.

125. The claimant took a further three days of sickness absence from the 9 to 11 August.

126. When the claimant contacted [NAME_28] by text on 11 August (page 729) to confirm that she would not be in work that day, [NAME_28] expressed her sympathy and confirmed that she had told [NAME_56]. [NAME_56] had asked if the claimant could also drop him a text (i.e., as well as [NAME_28]) going forward. This was not an unreasonable request for [NAME_56] to make and for [NAME_28] to pass onto the claimant given that the claimant and [NAME_56] were the only two executive directors. It is clear to the tribunal that [NAME_56] was trying to avoid any future breakdown in communication about the claimant’s presence or absence from work. On the last occasion, he had been unaware that the claimant was not coming into work because the message had been sent via [NAME_28] rather than direct from claimant to the second respondent. A simple remedy for this was to ensure that the claimant notified him directly if she was going to be absent. This was not an unreasonable approach for [NAME_56] to take in all of the circumstances.

127. On 15 August the claimant phoned [NAME_23] for a well-being meeting. She printed off the copy of the Employer’s Guide to PMDD and gave it to [NAME_23].

128. On 16 August the [NAME_82] died.

129. On 23 August there was a meeting between [NAME_56] and [NAME_27] in the [NAME_34]. The claimant was not in the room with them but must have been in the open plan area of the office. The claimant says that she heard parts of the conversation and that she heard the second respondent say, “I’m not doing that it’s my business I’ll do what I want.” The claimant has jumped to the conclusion that they were discussing her, and that [NAME_56]’s comment was in some way related to her. The reality is that she could not have known this.

130. The claimant says that [NAME_56] got straight on the telephone after [NAME_28] had left and said to whoever was on the phone, “I know I need to make a decision.” The claimant says she was asked into the room for a chat with [NAME_56] with only the two of them present. She asserts that he informed her that she’d used all her company sickness pay of 15 days. She says that she immediately started crying as she was shocked. She thought she had days of sickness entitlement remaining. She asserts that during the meeting he told her that she was good at her job and that she asked him for a reduction in hours for a reduction in salary to help her due to her struggling with her health. She asserts that without any thought the second respondent immediately replied, “no no no, no need for that.”

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131. There were conflicting accounts from the various sources as to what had been said on this day and the way it was said. The tribunal’s conclusion about all of this is that the claimant could not hear the subject matter of the conversation which was taking place in the [NAME_34] when she was in the open plan office. The claimant then tried to speak to [NAME_56] about the issue as he was rushing out of the building. He had an appointment at the [NAME_89] to make arrangements for his mother’s funeral. As he was rushing out of the room, the claimant may well have said something about requesting reduced hours in return for reduced pay. We find that [NAME_56] is unlikely to have heard the reference to/request for reduced hours, but he certainly said, “no need for that” i.e., no need to take a cut in pay. We accept his evidence that he was trying to get out of the door quickly. In reality, this was not a clear or formal request indicating that the claimant needed to reduce her hours. Rather, it was a quick comment made by the claimant which he indicated he would have to talk about later, at a more appropriate time. He certainly did not refuse to allow the claimant to reduce her hours. It is more credible to conclude that he was just saying that there was no need for her to reduce her pay. If the claimant had needed to reduce her working hours one might have expected her to produce a formal or written request articulating her needs rather than attempting to engage [NAME_56] in an off-the-cuff, hurried conversation. The employment tribunal is not persuaded that the claimant’s recollection of this incident is accurate.

132. We were referred to a dispute about the claimant’s remaining entitlement to company sick pay (as opposed to statutory sick pay). We referred to a number of documents in this regard at pages 886, 887 and 880. (There was no clear and reliable guide as to when these documents were written.) We also had access to a series of pay slips (from pages 233 to 238.) From these documents we can deduce that the claimant only started to receive any element of statutory sick pay for sickness absence at the end of September 2023. The claimant issued a grievance dated 15 September (page 322) which included an allegation about sick pay. She alleged that on 23 [NAME_56] had said that if the claimant wanted to be signed off sick, he was happy to pay SSP. The grievance findings on this point were at pages 358- 359. Some of the written sources refer to 15 days sick leave and one of them refers to statutory sick pay. The grievance was about how the claimant’s absences were recorded rather than whether she should have had her entitlement to company sick pay extended.

133. From the sources the tribunal deduces that the claimant ran out of company sick pay at some point in September and went onto statutory sick pay (hence the pay slip at the end of September.) Thus, the strict contractual entitlements to company sick pay were applied to the claimant. There is no evidence that the claimant asked for company sick pay to be extended by the respondents or that the second respondent refused to exercise a contractual discretion to extend company sick pay when he was asked to do so. On the balance of probabilities, there was some reference in the communication to how many days’ sickness absence the claimant had had when the claimant and [NAME_56] spoke on 23 August. [NAME_56] may or may not have said explicitly that the claimant was due to go on to statutory sick pay at this point, but this was in the context of him checking her welfare and saying things like, “we’ve got your back.” It was also in the context of him

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hurrying out of the office to get to an appointment at the [NAME_89]. At one point the claimant disputed whether the records were correct. She did not think that she had taken 15 days of absence but she never corrected this with [NAME_56].

134. So, the tribunal’s conclusion is that the contractual terms on statutory sick pay and company sick pay were followed by the respondents in the claimant’s case. The respondent had a discretion to extend the payment of company sick pay beyond the claimant’s strict entitlement but was not asked to do this. He did not, therefore, refuse to do this. The claimant received what she was entitled to under the terms of her contract of employment. In relation to the style of communications, there is no contemporaneous evidence that [NAME_56]’s manner or tone during this conversation was anything other than supportive towards the claimant. There is no suggestion that the respondent was trying to ‘kick her when she was down.’ We find that the claimant is likely to have been stressed by the financial pressures of receiving statutory sick pay (as opposed to full pay), but this was not because of anything in particular that the second respondent had said to her at around this time. Instead, she had internalized that financial pressure. (It is important to note that the grievance raised did not relate to the respondent failing to extend the claimant’s sick pay entitlement using the contractual discretion.)

135. When the second respondent returned to work following his bereavement he organised business review meetings. The claimant’s was due to take place on 30 August 2023. Before that meeting the claimant said to the office as a whole, “If my PMDD isn’t mentioned in my business review, I might as well give up and set up on my own.”

136. The meeting was brought forward and took place earlier in the day than the claimant anticipated. However, there is nothing to indicate that she requested that the meeting be put back to later in the day. The meeting was covertly recorded by the claimant, and the transcript of the meeting was in the hearing bundle for the tribunal to consider.

137. The parties agree that the second respondent was checking the health of the business on his return from absence. He was speaking to all staff in this regard. On reviewing the transcript, we can see that the claimant admitted that the business had tailed off (page 846). She referred to there being 18 men out, of which 3 were due to be finishing within the next 2 to 3 weeks. [NAME_56] asked the claimant what she planned to do to stop the drop in business. He wanted to know what her plan was to get more work into the business. [NAME_90] represented two thirds of the claimant’s business desk at that time. The claimant did not contradict this (as this was true) but she says that it was not a fair reflection of her contribution as she says she brought in work for the other recruitment consultants (who placed workers with her clients.) During the meeting the claimant said that there was new work coming from Beijing but it would not materialize until December. The claimant alleged that she had not had a proper opportunity to check where the figures/workflow were up to with staff as she had only just returned from holiday herself. There was a dispute

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between the parties as to when this new work would materialize. Would the business have to wait a further year for it? The discussion indicates that the figures were due to drop to either 12 or 9 contractors in the next few weeks. The claimant did not know how she was going to replace them and produced no plan to deal with this. She says that the absence of a plan was because she had only just come back from her holidays. The respondents’ position is that this is part of the strategic level work that the claimant should be doing as a director. In essence, it is for the claimant, as a director, to look ahead and plan for the medium and long-term as well as the short-term. The second respondent expressed alarm at the trajectory in the figures. He expressed his fears during the meeting. He identified a likely drop in revenue of between a quarter and a fifth in the next few weeks. The second respondent swore. The claimant knew that it was common to get a drop in business after the summer period (as referred to above.)

138. At the tribunal the claimant focused on the fact that they did not discuss her health during the course of this meeting. She focused on [NAME_56] swearing. She also said that it was part of her PMDD that she could come across as ‘dismissive’ in such meetings. The claimant accepted (during cross examination) that because the meeting had not gone well, she told people that she would set up her own business. For his part, the second respondent was clearly concerned that the claimant had done nothing to address the drop-off in business.

139. Taking a step back from this, there was clearly a big drop in business approaching for the company. The tribunal recognises that the respondents’ main concern was to find out what the claimant had done to address this as it was part of her job to do strategic planning and maintain an appropriate pipeline of business. In 2022 the claimant had only been in her job for about two months by the time the seasonal dip came along. In addition, she was subject to restrictive covenants in 2022 so she could not fairly be held to her responsibilities to avoid the dip in business in 2022. In effect, she was still in a settling-in period in 2022. By the time the business got round to 2023 the respondents reasonably expected the claimant to have planned for this seasonal dip. The claimant was expected to undertake business planning as the second respondent’s second in command. The respondents had legitimate concerns about the claimant’s performance and about whether she was doing what was expected of her at her level of seniority. We were not shown evidence of planning carried out by the claimant. We understand that the claimant had health problems but equally the respondent is still entitled to expect the claimant to perform the role that she was employed to do. Hence, it is not particularly surprising to the tribunal that the focus of the business review meeting was on the state of the business rather than on the claimant’s health and well-being. It was not a health review or a well- being meeting. It was a business review.

140. On 31 August the claimant alleges that the office was very hot and noisy, so she went to the [NAME_34] to work. After a few minutes [NAME_44] came in and asked the claimant to return to the main office as the second respondent had turned the air conditioning down. The claimant did not leave the [NAME_34] as she thought the temperature would not drop that fast and the open plan office was noisy. She continued to try and

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do some business development calls. After another 10 minutes the claimant was instructed to return to the main open plan office because the second respondent needed to use the [NAME_34]. The tribunal took the view that there was nothing objectionable about the respondent’s actions in this regard. The [NAME_34] was needed for other work, and the claimant was asked to return to the main office. The respondent had taken what steps it could to reduce the temperature in the main office.

141. In the claimant’s particulars of claim at page 15 she asserted that she had emailed the second respondent on 31 August stating that she needed a quiet space to work from as she was struggling with her disabilities. She asserted that she used the [NAME_34] but that within 20 minutes, on two separate occasions, the claimant was pressurised by [NAME_44] (on behalf of the respondent) to vacate the quiet space and return to the office. The initial email sent to the second respondent was at page 404. It said, “[NAME_53], I’m very hot in here I’m going into the other room to do my calls.” It said nothing about noise or that the claimant was struggling to work in the main office because of noise levels. It referred to heat only. The documents therefore show that the claimant’s account at page 15 in the particulars of claim is incorrect. It does not match the contemporaneous record. It refers to noise whereas the email refers to heat. Furthermore, the respondent did what it could to reduce the temperature and allowed the claimant to return to work in the [NAME_34] as soon as it was available again.

142. The tribunal concluded that there was nothing objectionable about this event. The heat levels were the issue raised by the claimant at the time and the respondent responded by doing what it could with the air conditioning. The second respondent legitimately needed to use the room and asked the claimant to leave whilst he did so. When he had finished using the [NAME_34] she was allowed to go back in and she did so. The issue of light levels and noise levels was not raised with the respondent at this time, and the claimant certainly did not suggest what her solution to problems with noise or light would have been.

143. The funeral for [NAME_56]’s mother took place on 1 September 2023.

144. On 4 September the claimant emailed [NAME_23] asking how many holidays she had left and what sickness absence she had taken. The claimant says that she was told that she had taken nine sick days. She subsequently exhausted the remaining six days of entitlement to company sick pay and went on to statutory sick pay. This apparently tallies with the claimant’s pay slip for September.

145. On 8 September 2023 [NAME_91] emailed the second respondent. The title to the email was “Thursday 07/09/23” (page 963.) The email contained a series of bullet points:

• “[NAME_42] sheet stating she has disability then said she had shown

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it to you, and it had been completely dismissed. • [NAME_42] if his commission had been sorted because and it should be then pulled up exactly what he has billed to date this year and gave him average per month and told him he would be more senior and better paid if he went to a competitor. [NAME_39] responded at this point saying, “why the F*ck do you have that.” • She then told him that this place needs sorting out there is no career path and there needs to be because again if he was elsewhere there would be and he would be further along in his career. • [NAME_42] he shouldn’t be filling my bookings as he doesn’t get paid on them (while I was off at a funeral). She waited until it was just the lads and [NAME_58] in the office to say these things.”

146. This email was disclosed partway through the tribunal’s final hearing, but the relevant witnesses were cross-examined upon it. The email from [NAME_91] apparently summarised various disciplinary and performance issues or allegations against the claimant. These included not promoting the best interests of the company, which would be a breach of a director’s duties towards the first respondent. The respondents’ case was that, in saying that recruitment consultants would be better off elsewhere, the claimant was undermining the best interests of the respondent company. The respondents also queried whether the claimant was attempting to poach staff for her own business. Further, if true, the allegation that she had told consultants not to fill [NAME_92]’s vacancies whilst he was attending a funeral was an attempt to undermine him which would have had a knock-on adverse effect on his figures and performance data in the company’s league tables.

147. The tribunal examined this email with care. It is a report from one person to the second respondent. It is not substantive evidence of wrongdoing as such. It was apparently composed in response to a question from the second respondent. It appears likely that it was preceded by an earlier conversation, of which the tribunal has no record. We do not know what prompted it. We do not know what question [NAME_91] was replying to and we do not know what [NAME_92]’s source was for the information in his email. The email contains second or third-hand information. It does not explicitly say who made the comments or when this happened. It has limited evidential value and carries limited weight. It is more a summary of allegations than evidence of the truth of those allegations. There is a limit to the weight that the tribunal can put on this document because it poses as many questions as it answers.

148. The claimant also alleges that she experienced a panic attack on the same day i.e., 8 September.

149. The second respondent decided that he wanted to have a protected conversation with the claimant. We are satisfied that he made this decision following on from the contents of his business review meeting with the claimant on 30 August and the fact that he had been told by [NAME_35] that the claimant had said to her on 30 August that if the review meeting did

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not go well, the claimant would set up her own business so that she could work from home full-time. We accept that [NAME_56] had received similar reports from junior staff during the time that he had spent away from the office. It had been indicated to him that the claimant had made repeated comments about setting up in business on her own. This is consistent with the messages that the claimant was sending to her partner, [NAME_55], from an early stage in the chronology. Staff had also reported a number of concerns about the claimant’s behaviour during [NAME_56]’s absence. These included telling junior staff not to fill a colleague’s vacancies while he was at the funeral (as referred to above), regularly leaving early on Fridays without permission and when [NAME_56] was not present, and making comments that undermined team morale. The second respondent says that he also received reports from staff that they felt tense around the claimant and that she frequently spoke negatively about [NAME_56] (as the senior director) and about the business generally. He was informed that she went so far as to tell [NAME_41] that he should resign from the business as he could do better elsewhere. Other incidents were reported to him including that the claimant had mocked a junior employee’s neurodiversity and had caused [NAME_41] significant embarrassment when she sent him the PMDD leaflet.

150. Many of these concerns were highlighted in the email of 8 September and/or were consistent with the contemporaneous text messages that the claimant was sending and which we have set out in detail in the preceding paragraphs of this document. We accept that this behaviour (at least the reports of it that [NAME_56] received) would have been particularly concerning given the claimant’s seniority in the organisation and her role as a statutory director. The respondent had a legitimate expectation that the claimant would behave professionally and promote the best interests of the business rather than undermine it.

151. It is clear to the tribunal that these concerns about the claimant’s behaviour contributed to a serious breakdown in the relationship of trust between the claimant on the second respondent. It is clear to the tribunal that this breakdown in trust was the reason why [NAME_56] decided to have a protected conversation with claimant. It is equally clear that this was not a disciplinary process. Consequently, the contents of any disciplinary procedure were not relevant or applicable to the protected conversation. It is possible to have a protected conversation at any stage, even where there is no disciplinary evidence (or insufficient disciplinary evidence to take matters to a formal disciplinary hearing.)

152. The protected conversation itself was recorded, and the transcript of the conversation was within the hearing bundle. The content of the transcript clearly demonstrates that the claimant either could not or would not accept that a protected conversation was not the same as a disciplinary hearing requiring a proper disciplinary procedure. The claimant became fixated on whether the respondent had a disciplinary procedure or not. Unfortunately, the existence of a disciplinary procedure is not relevant in the circumstances of a protected conversation. Further, even if the respondent did not have its own disciplinary procedure/handbook it would be open to the respondent to

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rely on the principles in the ACAS code to carry out any disciplinary procedure. Further, the respondents effectively accepted that, at this stage, they did not have enough material on which to dismiss the claimant for disciplinary offences. Hence, the decision was taken to try and end the claimant’s employment consensually using the framework of the protected conversation. (Incidentally, the tribunal cannot see that the respondent was precluded from having a protected conversation because the claimant had previously experienced a panic attack. The claimant maintains that she went into the protected conversation intending to ask for adjustments but it appears that she did not actually make a request for adjustments.)

153. The terms of the offer made by the respondents during the protected conversation were confirmed in writing in a letter dated 11 September [page 813.] It offered the claimant 5 days’ paid leave to consider the offer. They asked for a response to the offer by noon on 15 September.

154. Between 12 September and 26 September, the claimant was signed off work on sick leave with work-related stress, PMDD and perimenopause. Fit notes were submitted dated the 12 and 15 September. The claimant’s fit note indicates that the claimant was not fit to work at all. The doctor did not tick the box for the claimant being able to work with adjustments. Rather, she was not fit to work in any capacity. The respondents made the point that there was no medical evidence to suggest that if they had made adjustments to allow the claimant to work from home, that the claimant would have been medically fit to do so.

155. There are a number of pieces of correspondence between the parties on 15 September: • By letter emailed on 15 September at 11.47am, the claimant rejected the respondent’s settlement offer and made a counteroffer [page 810,811]. She set a deadline for a response of 12pm on 22 September. • The second respondent replied by email at 14.11 [page 815]. [NAME_56] asked the claimant to refrain from forwarding work emails to her personal account. He also indicated that [NAME_55] should not be included in correspondence relating to the settlement discussions unless he was acting as [NAME_93]. The claimant was asked to confirm whether that was the case. The claimant’s counteroffer was rejected and the respondents’ original offer was left open for consideration for a further 7 days until noon on 22 September. [NAME_56] suggested that the parties’ solicitors could have a discussion if the claimant wished. • The claimant sent an email at 23.04 on 15 September [page 817]. She confirmed that her partner, [NAME_55], was authorised to speak on her behalf as she did not feel well enough. The claimant again rejected the respondents’ offer and left her own counter offer open for acceptance until noon 25 September. She confirmed that if agreement was not reached by that date, she intended to make an employment tribunal claim, primarily for disability discrimination. She indicated that her official grievance letter would be sent separately. • [NAME_56] replied to the claimant’s last email of 15 September with an email on 18 September at 11.05 [page 818]. He noted that [NAME_147] was authorised to speak on the claimant’s behalf. He noted that the claimant’s counteroffer remained rejected and, as the claimant did not wish to reconsider the respondents’ offer, it was withdrawn as of 18 September. • [NAME_55] sent his own email at 13.04 on 18 September making various observations about the negotiation and referring the respondents to the contents of the claimant’s grievance letter dated 15 September.

156. When the claimant submitted her fit note the second respondent suggested revisiting adjustments to work once the claimant returned to work. It was at this stage that [NAME_56] asked for a copy of [NAME_84]’s report. The claimant sent a copy of the report to [NAME_95] (who had been commissioned to address her grievance.) She did not send it directly to [NAME_56]. It is unclear why she did not do so. [NAME_56] had to obtain the document from [NAME_95].

157. Also on 15 September, the claimant submitted her first grievance [page 320.] This was sent after the offer and counteroffer emails of 15 September referred to above. The respondents asserted that this was designed to achieve a better settlement offer from the respondent. The tribunal looked at the claimant’s grievance letter to see what her desired outcome was. It was unclear what resolution she was seeking. The tribunal could not see what the claimant was asking for, other than an increased payment. There was no request for reasonable adjustments and no suggestion as to what the claimant needed in order to work in the business going forward.

158. On 15 September at 15:58 [NAME_56] sent an email to the claimant [page 376]. In the email [NAME_56] indicated that, when the claimant was ready to return to work, flexibility in her working hours and location would be revisited, as would other measures to assist easing her symptoms. [NAME_56] indicated that adjustments had been put in place in the absence of medical or occupational health evidence. This had been done to support the claimant but [NAME_56] indicated that the respondent might explore a referral to occupational health at the end of the claimant’s sickness absence. He asked her to share the report from [NAME_84] with him. He said, “Of course, there is no obligation upon you to agree to disclosure of this report, but it may well help us to establish whether there are any further reasonable adjustments we can put in place upon your return to work, it will most certainly be of use to any occupational health expert to which we may refer you.”

159. On 19 September the claimant made a written request for reasonable adjustments [page 422.] She requested permanent home working and a four-day week. The second respondent replied at page 424. [NAME_56] expressed some concern that the claimant was contacting the business during her period of sick leave when he assumed she had been advised to rest and recover, also taking account of the fact that [NAME_55] had requested that the company not engage with the claimant until she was ready to come back to work. He was concerned that the claimant was writing to him retrospectively requesting reasonable adjustments. [NAME_56] explained that he had instructed an independent HR consultant, [NAME_159], to contact the claimant to arrange a hearing of the claimant’s grievance. He had also instructed [NAME_98] to explain to the claimant what steps needed to be taken before reasonable adjustments could properly be considered. [NAME_98] would be in touch with the claimant independently but taking into account the anticipated expiry date on the claimant’s fit note. [NAME_56] made it clear that he did not propose to address the claimant’s letter until the point at which the claimant was fully fit to return to work and until after the claimant’s grievance had been heard and decided by [NAME_95]. He confirmed that, in the best interests of the claimant’s health, he would not be responding to further communications from her until she advised him and/or [NAME_95] that she was fit to return to work.

160. On 25 September it appears that there was a repeat of this correspondence [page 425] where the claimant had submitted a letter requiring reasonable adjustments. [NAME_56] responded to confirm receipt of the letter. He confirmed that he was happy to set up a meeting to discuss the requests upon her return to work. He noted that the claimants’ fit note expired the next day and asked whether she was able to confirm at that stage whether she would be well enough to return on 27 September so that he could make time in his diary as soon as possible.

161. The claimant submitted a second grievance/an addendum to her grievance on 26 September [page 326]. The claimant wanted to have [NAME_56] suspended from the business. The tribunal queries whether the claimant can genuinely have believed that this was a realistic possibility, given the structure and size of the business.

162. On 27 September the claimant had a new fit note which suggested that it might be possible for her to return to work if she was working from home [page 379].

163. On 27 September the claimant emailed [NAME_23] to indicate that she was going to work from home that day and that she had had a panic attack on her way to work that morning. She asked [NAME_24] to send the return- to-work form to her or suggested that they could complete it the next day [page 636.] [NAME_99] completed a return-to-work form based on what she had discussed with the claimant [page 389-391]. Later on 27 September, the claimant emailed [NAME_99] requesting changes to the form and asked for a formal recording that PMDD was a disability and that the respondents had been aware of this for a while [page 634]. [NAME_99] was due to start some leave later on 27 September and was due to be away on annual leave until 4 October 2023. When the claimant sent the email at [634] she would have received [NAME_99]’s out of office reply [page 645]. ([NAME_99] maintains that the claimant already knew that [NAME_99] was due to start annual leave later that day.) [NAME_99]’s evidence to the tribunal was that she did not feel that she could make the amendments to the form that the claimant had requested because this would not have been an accurate reflection of the discussion they had had at the return-to-work meeting. In any event, as she was out of the office [NAME_99] did not reply to this email. At 15.59 the claimant emailed both [NAME_99] and [NAME_56] to ask for the form to be amended and re- sent to her in [NAME_99]’s absence [page 392]. In an email at page

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632, on 10 October, the claimant complained that there had been no response to her emails. On 11 [NAME_56] responded via email (page 456) addressing a number of different matters in one message (return to work form, occupational health referral, staff handbook.) He was concerned that the claimant had been emailing work during her annual leave. He asked her to stop emailing other staff in relation to work-related matters and asked her to send all emails to him, as her line manager. He reminded the claimant that [NAME_23] only worked 3 days per week. It is evident that [NAME_99] would not present in work enough in order to be able to respond rapidly to all of the claimant’s correspondence. Hence, [NAME_56] was endeavouring to make himself a single point of contact in order to ensure that correspondence was handled by someone with sufficient availability.

164. On 28 [NAME_56] replied to the claimant’s request for homeworking. He agreed to allow homeworking on a temporary basis. He issued instructions as to how the homeworking should take place [page 430.] This was said to be a temporary adjustment until the 6 October/the claimant’s upcoming holidays. The claimant says that this was only a period of about three days. The instructions were set out in bullet point format [page 431] The respondent said that this was what was needed in order to replicate office arrangements, as far as possible, whilst the claimant was working from home. In particular, it was important that the claimant kept those in the office up to date with what was going on (so far as possible in real time) in order to avoid continuity problems.

165. On reviewing the bullet point list, the tribunal is satisfied that all of the bullet points are entirely reasonable in the circumstances of the claimant’s job and the circumstances of her case. There was nothing in the list which should have been controversial. The tribunal found it remarkable that the respondents felt that they had to spell this out the claimant. Not only that, the second respondent was at pains to explain why he needed her to do this. He explained the impact of having someone working from home when the rest of the organisation is run from the office and why it is necessary to have these measures in place to ensure as much continuity as possible and reduce the adverse effect on the business.

166. On 29 September the claimant was again signed off as unfit for work [page 380.]

167. On 2 October the claimant was invited to consent to an occupational health referral [page 432.] The claimant gave provisional consent that day [page 434.] The claimant alleges that she was being victimised in relation to enforcing the sickness absence reporting procedure. However, the tribunal considers that the respondent had to “do it by the book” because the claimant had escalated matters [page 439.]

168. There was a further fit note on 2 October covering the period from 29 September to 5 October [page 380.]

169. On 4 October the second respondent chased the claimant’s consent to the occupational health referral [page 446.]

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170. On 5 October the claimant completed the occupational health referral form [page 447-448).

171. 6 October was the start of the claimant’s annual leave, and the second respondent was due to be out of the office for a few days. The claimant emailed the second respondent whilst he was out of the office regarding the fact that she had not seen the occupational health referral and the questions which were being put to occupational health about her [page 450.] The claimant chased this [page 453, 456.]

172. On 9 October the claimant emailed [NAME_23] asking for a copy of the employee handbook [page 456.] On 10 October there was a further email from the claimant to [NAME_23] chasing a response.

173. On 11 October the second respondent emailed the claimant to say that they had not yet received an occupational health appointment for her. (He would chase this and update her.) In this email he also asked the claimant not to email other staff in his absence and whilst she was on annual leave [page 461, referred to above.] In the email he indicated that the claimant must have known (in her capacity as a director) that the first respondent did not have a staff handbook and that [NAME_99] was working on this, with professional advice. As it was a work in progress, he could not send it to the claimant. He also indicated that amendments to the claimant’s return to work form (from 27 September) could be completed when the claimant returned to work from annual leave.

174. On 12 October claimant emailed [NAME_56] [page 460] and raised a complaint of victimisation and complained about the occupational health referral. She alleged that [NAME_56] was ostracising her from colleagues. On the same date (12 October) the claimant contacted ACAS.

175. On 13 October the second respondent emailed the claimant in response to her email of 12 October. This was the Friday before the claimant’s proposed return to work on Monday, 16 October [page 485.] He also gave dates for an occupational health appointment. The second respondent said that the claimant should work from home until they had received the occupational health report. The only exception to this was that they needed her to attend the office for three days whilst a software team were in the office from a company called [NAME_100]. This is because they needed the claimant’s input into the design of the software and she needed to be present in the building to do this. The instructions as to how the claimant was to work from home had apparently not changed.

176. On 15 October the claimant emailed [NAME_56] with a complaint of victimisation. She also asked [NAME_56] for copies of the questions to occupational health and a copy of the referral [page 466.] The claimant would not sign the consent to go to occupational health without seeing a list of questions first. The respondent saw this as a delaying tactic on the claimant’s part.

177. On 16 [NAME_56] responded to the claimant’s email from 15 October [page 469.] The respondent also provided the claimant with a copy of the occupational health referral form and accompanying questions.

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178. A further fit note was provided for the period between 16 to 30 October [page 381.]

179. On 17 October the claimant selected an appointment to see occupational health on 24 October. On 17 [NAME_56] asked for a copy of the [NAME_85] report [page 502]. On 18 October the claimant sent a copy of the [NAME_84] report.

180. On 18 October a grievance outcome letter was provided to the claimant. There was a separate findings report [page 329, page 346.] The report was very comprehensive. The outcome letter summarised 15 grounds of complaint and addressed each one individually, giving [NAME_98]’s conclusion and the rationale for it. Grievance point 5 (in relation to measurement of menopause related absence as part of the claimant’s attendance record) was partially upheld. [NAME_101] did find that there had been no detriment to the claimant in this regard as no action had been taken with the claimant in relation to menopause-related absences. She did not find that there was any requirement for sick pay entitlements to be adjusted for these absences. The remaining points of grievance were not upheld.

181. On 19 October the claimant resigned by letter giving four weeks’ notice of termination [page 510.]

182. On 20 [NAME_56] asked to the claimant to reconsider her resignation. On 20 October the claimant withdrew her consent to the occupational health referral and refused to reconsider her resignation [page 534.] The claimant said that there was now no point in attending occupational health and that this should have been done ages ago. The second respondent accepted the claimant’s resignation once she refused to reconsider and retract it.

183. On 25 October there was correspondence with [NAME_35] regarding the claimant’s commission [page 611, 609.]

184. On 31 [NAME_56] and the claimant corresponded regarding arrangements for the last two weeks of the notice period [page 532]. The respondent still wanted an occupational health report and, if the claimant was not fit to return to work, she would be on statutory sick pay. The claimant asked to be put on gardening leave.

185. On 9 [NAME_56] invoked the contractual clause allowing him to terminate the claimant’s contract early [page 583-585.] The second respondent referred to the fact that, during the protected conversation, reference had been made to serious matters which needed to be dealt with as disciplinary and/or performance management concerns. In his letter, [NAME_56] made it clear that these concerns had not gone away and that he wanted to address them. He indicated that if the claimant had not resigned, the matters would have been investigated further and dealt with under a disciplinary procedure. [NAME_56] decided to invoke clause 13.1.1 of the claimant’s contract of employment to terminate the contract with effect from 9 November 2023 but with payments in lieu of notice to cover the period up

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to 16 November (the end of the claimant’s original notice period.)

186. The contents of the communication suggest that, at this stage, the respondents were intending to pay the claimant’s commission. It was noted that any commission payments which were due would be paid 12 weeks after the claimant’s leave date, noting the payment conditions.

187. On 13 November the claimant reiterated her complaints [page 588.]

188. On 23 November the respondent sought information from the claimant’s GP. She says that this was in breach of her privacy and rights of confidentiality.

189. On 6 February 2024 the respondent emailed the claimant confirming that there would be no commission paid to her and invoking the discretion to withhold commission under the contract (schedule 1 clause 5), without further elaboration [page 599.]

190. There was then a letter before action from the claimant. The second respondent responded to this via letter dated 22 March 2024 [page 595.] It is only at that stage that the respondent explained why the commission was not being paid. The letter indicated that had the claimant not resigned, the respondent would have commenced disciplinary proceedings which “more than likely would have led to your summary dismissal.”

191. The correspondence shows that there was no explicit reference to the respondents having an entitlement to terminate the contract for gross misconduct until the letter in March 2024, although the actual early termination took place on 9 November. The early termination of 9 November does not say that the early termination is because of gross misconduct, although disciplinary matters are referred to. The respondent just suggested that these would have been looked into if the claimant had not resigned first and had instead gone along with the respondents’ internal procedures.

192. Essentially, the tribunal found that the respondents withheld the payment in February 2024 but did not say why they were doing this until 22 March 2024. This decision was based on allegations which are set out in the 9 November letter although the 9 November letter does not suggest that this would be grounds for withholding the commission payments. The 9 November letter included the following numbered paragraphs:

1. In early September 2023 you made inappropriate comments to junior staff that if your review does not go well, you will leave the business and set up by yourself. Several reports were submitted to me that such conversations had taken place. You were employed as a senior member of staff holding legal director status, as such, the report of such conversations gave me serious grounds for concern and appeared to be in breach of both your contractual and fiduciary duties to the company.

2. You encouraged and/or advised junior employees that they would

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be better paid if they worked elsewhere, and that the commission structure of the business was poor.

3. I have received complaints from other members of staff that they feel tense around you when you come into the office.

4. Your responses to the business overview concerns presented to you by me were nonchalant, insubordinate, thus potentially indicating that you were not interested in fulfilling your senior role to the best of your abilities.

5. When you were permitted to work from home, I held evidenced concerns that you were not fulfilling your contracted hours.

193. Underneath these numbered paragraphs, the letter continued, “After you commenced your sick leave mid-September 2023, you persistently logged into your work account, and emailed other staff to ask them about work related matters. You were asked not to do this and advised your work was being covered and that you should take your sick leave as time to recover from your work-related stress. You refused to follow this reasonable management instruction and cited this recommendation as victimisation because you had raised a grievance. The same pattern of behaviour occurred during your recent annual leave when you were contacting [NAME_24] outside of her working hours. You were again advised to use your holiday to recuperate but also reminded that you reported to me. It is very important that staff fully switch off during periods of sickness absence and annual leave, and I consider that it was therefore appropriate and reasonable to instruct you not to be accessing work at these times. After 31st October 2023, you also contacted our external IT providers to gain access to the database when you had been advised not to during a period of sickness.”

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The Law

Section 20/21: reasonable adjustments.

194. Section 20 (so far as relevant) states:

(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. (4) The second requirement is a requirement, where a physical feature 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. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

…

195. Section 21 states:

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) …

196. The correct approach to a claim of unlawful discrimination by way of a failure to make reasonable adjustments remains as set out in Environment Agency v [NAME_102] 2008 ICR 218 as follows:

(a) Identify the PCP applied by or on behalf of the employer, (b) Identify comparators (if necessary), (c) Identify the nature and extent of the substantial disadvantage suffered by the claimant.

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197. The identification of the applicable PCP is the first step that the claimant is required to take. If the PCP relates to a procedure, it must apply to others than the claimant. Otherwise, there can be no comparative disadvantage.

198. In [NAME_103] v [NAME_104] for London [2020] EWCA Civ 112 it was noted that the phrase PCP should be construed widely but remarks were made about the legislator’s choice of language (as opposed to the words “act” or “decision”.) Simler LJ stated, “I find it difficult to see what the word “practice” adds to the words if all one off decisions and acts necessarily qualify as [NAME_105]…. If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice.” It is just done; and the words “in practice” add nothing….The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee…To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply…. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. …In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP of “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. …in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of an element of repetition about it.”

199. A ‘substantial disadvantage’ is one which is ‘more than minor or trivial’.

200. Only once the employment tribunal has gone through the steps in [NAME_102] will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice. The test of reasonableness is an objective one. The effectiveness of the proposed adjustments is of crucial importance. Reasonable adjustments are limited to those that prevent the PCP from placing a disabled person at a substantial disadvantage in comparison with persons who are not disabled. Thus, if the adjustment does not alleviate the disabled person’s substantial disadvantage, it is not a reasonable adjustment. (Salford NHS Primary Care Trust v Smith [2011] EqLR 1119) However, the threshold that is required is that the adjustment has ‘a prospect’ of alleviating the substantial disadvantage. There is no higher requirement. The

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adjustment does not have to be a complete solution to the disadvantage. There does not have to be a certainty or even a ‘good’ or ‘real’ prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as a reasonable one. Rather, it is sufficient that a tribunal concludes on the evidence that there would have been a prospect of the disadvantage being alleviated. (Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075.

201. Where the disability in question means that an employee is unable to work as productively as other colleagues, adjustments to enable her to be more efficient would indeed relate to the substantial disadvantage she would otherwise suffer ([NAME_106] v [NAME_107] healthcare NHS trust [2020] IRLR 503. It cannot be assumed that a desire to achieve greater efficiency does not reflect the suffering of a substantial disadvantage. The fundamental question is what steps it was reasonable for the respondent to have to take in order to avoid the particular disadvantage not what ought ‘reasonably have been offered.’

202. Particular issues have arisen in the case law around reasonable adjustments in relation to levels of pay, particularly sick pay. The purpose of reasonable adjustments is said to be to assist the employee to obtain employment and integrate into the workforce, rather than to facilitate leave or absence from work and to make it less disadvantageous to stay away from work. In O’Hanlon v Revenue and Customs Commissioners [2007] EWCA Civ 283 the Court of Appeal stated: “In our view, it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment. We do not believe that the legislation has perceived this as an appropriate adjustment, although we do not rule out the possibility that it could be in exceptional circumstances.” The EAT had said (in relation to the same case) that to consider this to be a reasonable adjustment would be for the tribunal to usurp the management function of the employer. It also stated, importantly, that: “the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce. All the examples given in s18B (3) are of this nature. True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what will be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packets of the disabled. The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.” [ADDRESS] of Appeal also referred to the EAT’s rationale that the claimant could not rely on financial hardship of the attending stress as a substantial disadvantage, as that would be no different to a comparator. The EAT held: “In any event, it seems to us that it would be wholly invidious for an employer to have to determine whether to increase sick payments by assessing the financial hardship suffered by the employee, or the stress resulting from lack

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of money- stress which no doubt would be equally felt by a non-disabled person absent for a similar period.”

203. The O’Hanlon decision was further approved under the terms of the Equality Act 2010 in Aleem v E-Act Academy Trust Ltd EKEAT/0099/20. Similar sentiments were expressed in [NAME_108] v Secretary for Work and Pensions [2015] EWCA Civ 1265 at paragraph 68.

204. If there are no adjustments which would enable the employer to return to work, it would not be reasonable to make them (Conway v Community Options Ltd UKEAT/0034/12).

205. An employer can satisfy the duty to make reasonable adjustments even if the adjustments adopted are not the adjustments preferred by the employee (Garrett v Lidl Ltd UKEAT/0541/0).

206. An employer has a defence to a claim for breach of the duty to make reasonable adjustments if it does not know and could not be reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP etc. The question is what objectively the employer could reasonably have known following reasonable enquiry.

Section 15: Discrimination arising from disability.

207. Section 15 Equality Act 2010 states:

(1) A person (A) discriminates against a disabled person (B) if-

(a) A treats B unfavourably because of something arising in consequence of B’s disability, 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.

208. Four elements must be made out in order for the claimant to succeed in a section 15 claim:

(i) There must be unfavourable treatment. No comparison is required. (ii) There must be something that arises ‘in consequence of the claimant’s disability’. The consequences of a disability are infinitely varied depending on the particular facts and circumstances of an individual’s case and the disability in question. They may include anything that is the result, effect or outcome of a disabled person’s disability. Some consequences may be obvious and others less so. It is question of fact for the tribunal to determine whether something does in fact arise in consequence of a claimant’s disability.

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(iii) The unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability. This involves a consideration of the thought processes of the putative discriminator in order to determine whether the something arising in consequence of the disability operated on the mind of the alleged discriminator, whether consciously or subconsciously, at least to a significant extent. (iv) The alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

See Secretary of State for Justice and another v Dunn EAT 0234/16.

209. Treatment cannot be ‘unfavourable’ merely because it is thought that it could have been more advantageous or is insufficiently advantageous ([COMPANY_148] & Assurances Scheme and anor v [NAME_109] [2015] IRLR 885; [2017] IRLR 882 and [2019] IRLR 306.)

210. The consequences of a disability ‘include anything which is the result, effect or outcome of a disabled person’s disability.’ Some may be obvious, others may not be obvious (paragraph 5.9 EHRC Employment Code 2011).

211. Following the guidance given in Pnaiser v NHS England [2016] IRLR 170 at paragraph 31 the correct approach to a section 15 claim is:

(a) A tribunal must first identify whether there was unfavourable treatment and by whom. No question of comparison arises. (b) The tribunal must determine what caused that unfavourable treatment. What was the reason for it? An examination of the conscious or unconscious thought processes of A is likely to be required. There may be more than one reason or cause for impugned treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is irrelevant (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. The causal link between the something that causes unfavourable treatment and the disability may include more than one link. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (e) The knowledge that is required is knowledge of the disability only. There is no requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. (See also City of York Council v Grosset [2018] ICR 1492). (f) It does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of ‘something arising in consequence of the claimant’s disability’. Alternatively, it might ask whether the disability has a particular consequence

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for a claimant that leads to ‘something’ that caused the unfavourable treatment.”

212. The first limb of the analysis at section 15(1)(a) is to determine whether the respondent treated the claimant unfavourably “because of something arising in consequence of the claimant’s disability”. This analysis requires the tribunal to focus on two separate stages: firstly, the “something” and, secondly, the fact that the “something” must be “something arising in consequence of B’s disability”, which constitutes a second causative (consequential) link. It does not matter in which order the tribunal takes the relevant steps (Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 at paras 26-27) also City of York Council v Grosset [2018] IRLR 746 paragraph 36).

213. When considering an employer’s defence pursuant to section 15(1)(b) the ‘legitimate aim’ must be identified. The aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. The objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. (Bilka-[NAME_110] v [NAME_111] von [NAME_112] [1986] IRLR 317.)

214. The question as to whether an aim is “legitimate” is a question of fact for the tribunal. The categories are not closed, although cost saving on its own cannot amount to a legitimate aim ([NAME_113] v [COMPANY_115] 2012 ICR 1126.)

215. Once the legitimate aim has been identified and established it is for the respondent to show that the means used to achieve it were proportionate. Treatment is proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. A three stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective? (R(Elias) v Secretary of State for Defence [2006] IRLR 934).

216. Determining proportionality involves a balancing exercise. An employment tribunal may evaluate the discriminatory effect of the treatment as against the employer’s reasons for acting in this way, taking account of all relevant factors (EHRC Code paragraph 4.30). The measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see EHRC Code (para 4.31). It will be relevant for the tribunal to consider whether or not any lesser measure might have served the aim.

217. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business but it has to make its own judgment, based upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary (Hardy & Hansons Plc v Lax [2005] IRLR 726 and [NAME_117] v

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Ministry of Defence UKEAT/0067/14/DM). It is not the same test as the ‘band of reasonable responses’ test in an unfair dismissal claim. However, in Birtenshaw v Oldfield [2019] IRLR 946 (para 38) the EAT highlighted that in considering the objective question of the employer’s justification, the employment tribunal should give a substantial degree of respect to the judgment of the decision maker as to what is reasonably necessary to achieve the legitimate aim provided it has acted rationally and responsibly. However, it does not follow that the tribunal has to be satisfied that any suggested lesser measure would or might have been acceptable to the decision-maker or would otherwise have caused him to take a different course. That approach would be at odds with the objective question which the tribunal has to determine; and would give primacy to the evidence and position of the respondent’s decision-maker.

218. It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged person. It is not sufficient that the respondent could reasonably consider the means chosen as suitable for achieving the aim. To be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so ([NAME_118] v [NAME_119] of West Yorkshire Police Authority [2012] IRLR 601.)

Victimisation

219. Section 27 Equality Act 2010, so far as relevant, provides that:

(1) A person (A) victimises another person (B) if A subjects B to a detriment because –

(a) B does a protected act…

(2) Each of the following is a protected act – … (d) making an allegation (whether or not express) that A or another person has contravened this Act.

220. A protected act requires that an allegation is raised which, if proved, would amount to a contravention of the Equality Act 2010. No protected act arises merely by making reference to a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination or otherwise a contravention of the Equality Act 2010: Beneviste v Kingston University UKEAT/0393/05/DA [29].

221. The test for detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view but his perception must be ‘reasonable’ in the circumstances.

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222. The employee must be subjected to the detriment ‘because of’ the protected act. The same principles apply in considering causation in a victimisation claim as apply in consideration of direct discrimination. The protected act need not be the sole cause of the detriment as long as it has a significant influence in a Nagarajan sense. It need not even have to be the primary cause of the detriment so long as it is a significant factor. Detriment cannot be because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. In the absence of clear circumstances from which such knowledge can be inferred, the claim for victimisation will fail Essex County Council v Jarrett EAT 0045/15.

Burden of Proof

223. Section 136 of the Equality Act 2010 provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove any non-discriminatory explanation. The two-stage shifting burden of proof applies to all forms of discrimination under the Equality Act including discrimination arising from disability under section 15 and the failure to make reasonable adjustments under section 20. Although similar principles apply, what needs to be proved depends, to a certain extent, on the nature of the legal test set out in the respective statutory sections.

224. The wording of section 136 of the act should remain the touchstone. The relevant principles to be considered have been established in the key cases: [COMPANY_120] v [NAME_121] 2005 ICR 931; [NAME_122] v Manchester City Council and another ICR 1519; [NAME_123] v [COMPANY_124] 2007 ICR 867; and [NAME_125] v Grampian Health Board 2012 ICR 1054.

225. The correct approach requires a two-stage analysis. At the first stage the claimant must prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out on the balance of probabilities is the second stage engaged, whereby the burden then “shifts” to the respondent to prove (on the balance of probabilities) that the treatment in question was “in no sense whatsoever” on the protected ground.

226. The approved guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 (as adjusted) can be summarised as:

a) It is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. The

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tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden.

227. The shifting burden of proof rule only applies to the discriminatory element of any claim. The burden remains on the claimant to prove that the alleged discriminatory treatment actually happened and that the respondent was responsible. The statutory burden of proof provisions only play a role where there is room for doubt as to the facts necessary to establish discrimination. In a case where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against on the alleged protected ground, they have no relevance ([NAME_125]). If a tribunal cannot make a positive finding of fact as to whether or not discrimination has taken place it must apply the shifting burden of proof.

228. Where it is alleged that the treatment is inherently discriminatory, an employment tribunal is simply required to identify the factual criterion applied by the respondent and there is no need to inquire into the employer’s mental processes. If the reason is clear or the tribunal is able to identify the criteria or reason on the evidence before it, there will be no question of inferring discrimination and thus no need to apply the burden of proof rule. Where the act complained of is not in itself discriminatory and the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the employer’s mental processes (conscious or unconscious) to discover the ground or reason behind the act. In this type of case, the tribunal may well need to have recourse to the shifting burden of proof rules to establish an employer's motivation

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229. The claimant bears the initial burden of proving a prima facie case of discrimination on the balance of probabilities. The requirement on the claimant is to prove on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The employer’s explanation (if any) for the alleged discriminatory treatment should be left out of the equation at the first stage. The tribunal must assume that there is no adequate explanation. The tribunal is required to make an assumption at the first stage which may in fact be contrary to reality. In certain circumstances evidence that is material to the question whether or not a prima facie case has been established may also be relevant to the question whether or not the employer has rebutted that prima facie case.

230. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, with more, sufficient material from which tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination (see [NAME_123]).

231. If the claimant establishes a prima facie case of discrimination the second stage of the burden of proof is reached and the burden of proof shifts onto the respondent. The respondent must at this stage prove, on balance of probabilities that its treatment of the claimant was in no sense whatsoever based on the protected characteristic.

232. In some instances, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage ([NAME_126] v [NAME_119] of the Royal Ulster Constabulary [2003] ICR 337.) The employment tribunal should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

233. In the context of a section 15 claim in order to establish a prima facie case of discrimination the claimant must prove that he or she has the disability and has been treated unfavourably by the employer. It is also for the claimant to show that “something” arose as a consequence of his or her disability and that there are facts from which it could be inferred that this “something” was the reason for the unfavourable treatment. Where the prima facie case has been established, the employer will have three possible means of showing that it did not commit the act of discrimination. First, it can rely on section 15(2) and prove that it did not know that the claimant was disabled. Secondly, the employer can prove that the reason for the unfavourable treatment was not the “something” alleged by the

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claimant. Lastly, it can show that the treatment was a proportionate means of achieving legitimate aim.

234. Where it is alleged that an employer has failed to make reasonable adjustments, the burden of proof only shifts once the claimant has established not only that the duty to make reasonable adjustments had arisen but also that there are facts from which it could reasonably be inferred (absent an explanation) that the duty been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it can be properly inferred that there is a breach of that duty. Rather, there must be evidence of some apparently reasonable adjustment that could have been made. Therefore, the burden is reversed only once a potentially reasonable amendment adjustment has been identified Project Management Institute v Latif [2007] IRLR 579.

235. In a victimisation claim where there is clear evidence of the reason for the treatment (which forms the detriment) there is no need for recourse to the shifting burden of proof in section 136. However, where the shifting burden of proof does come into play it is for the claimant to establish that he/she has done a protected act and has suffered a detriment at the hands of the employer. Applying the approach in [NAME_123] would suggest that there needs to be some evidence from which the tribunal could infer a causal link between the protected act and the detriment. One of the essential elements of the prima facie case that the claimant must establish appears to be that the employer actually know about the protected act ([NAME_127] v London Borough of Hillingdon [2001] EWCA Civ 2005).

Constructive dismissal as discrimination

236. Employees with qualifying service have a right not to be unfairly dismissed. Section 95 Employment Rights Act 1996 deals with the concept of dismissal. A dismissal includes where (section 95(1)(c):

“the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

237. An employee alleging constructive dismissal must show that the employer committed a serious or repudiatory breach of contract (serious enough to justify the employee resigning), that she resigned in response to that breach (not for some other unconnected reason), that she did not delay too long or acquiesce in relation to the beach or affirm the contract notwithstanding the breach.

238. The employee is only entitled to treat herself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The fundamental (or repudiatory) breach of contract may be based on an express or an implied term of the contract of employment.

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239. One of the central implied terms of any contract of employment is the ‘implied term of mutual trust and confidence.’ This is the implied term that the parties will not, without reasonable and proper cause, conduct themselves in a manner which is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee (see [NAME_129] v [COMPANY_131] SA [1997] ICR 606). Any breach of the implied term of mutual trust and confidence will be considered to be a fundamental breach of contract given the central and fundamental nature of this implied term to the existence of the contract of employment.

240. As stated in Woods v WM Car Services (Peterborough) [1981] ICR 666:

“To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

241. Reasonableness of the respondent’s actions may be evidence as to whether there is a fundamental breach (and a constructive dismissal) but the test nevertheless remains contractual (Lewis v Motorworld Garages Ltd [1985] IRLR 465, also Western Excavating (ECC) Ltd v Sharp [1978] ICR 221). It is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

242. Where it is alleged that an employee resigned in response to a ‘last straw’ event London Borough of Waltham Forrest v Omilaju [2005] IRLR 35 reminds us (per Dyson LJ):

“14 The following basic propositions of law can be derived from the authorities:

1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment.

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee: see, for example, [COMPANY_153] … 3. Any breach of the implied term of mutual trust and confidence will amount to a repudiation of the contract…The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship.

4. The test of whether there has been a breach of the implied term of mutual trust and confidence is objective. As Lord Nicholls said in [NAME_130] at page 610H, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.’

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5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.” … 15. In Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: ‘(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?...This is the “last straw” situation.

16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application. … 19. ….The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the

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obligation of trust and confidence that it lacks the essential quality to which I have referred.

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.''

243. When resigning and claiming to have been constructively dismissed, an employee who is a victim of a continuing cumulative breach of the implied term of trust and confidence is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation, provided the later act forms part of the series (Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1.)

244. If the employer does commit a fundamental or repudiatory breach of contract, the employee must resign in response to that breach. The breach of contract need not be the sole cause of the resignation but it must be an effective cause of the resignation.

245. The employee must not affirm the contract, whether by prolonged delay before resigning or, by implication, by an equivocal election or by conduct that is consistent only with the continued existence of the contract.

246. Where there is a constructive dismissal which is not for an automatically unfair reason (such as a protected disclosure), the dismissal may nevertheless be found to be a fair dismissal if the respondent can show that the reason for dismissal was one of the potentially fair reasons permitted by the Employment Rights Act 1996. In the context of a constructive dismissal, the Tribunal will be concerned with the reason, or principal reason, for the fundamental breach of contract.

247. Where the reasons for a claimant’s dismissal are a series of bad acts by the employer, some of which are discriminatory and some of which are not, it is only if the discriminatory matters “sufficiently influenced” the overall breach that the claim is made out ([NAME_132] v [COMPANY_134] t/a [NAME_149], EAT [2021] IRLR 547.)In that case Cavanagh J stated:

68. I agree with [NAME_135] that, in principle, a “last straw” constructive dismissal may amount to unlawful discrimination if some of the matters relied upon, though not the last straw itself, are acts of discrimination. There is very limited authority on this point. However, in [NAME_109] v [NAME_137] of Alderman Davies Church in Wales Primary School [2020] IRLR 589, at

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paragraph 89 , HHJ Auerbach said that a constructive dismissal should be held to be discriminatory “if it is found that discriminatory conduct materially influenced the conduct that amounted to a repudiatory breach.” At paragraph 90, HHJ Auerbach said that the question was whether “the discrimination thus far found sufficiently influenced the overall repudiatory breach, such that the constructive dismissal should be found to be discriminatory.” (my emphasis)

69. I respectfully agree with the test as it is set out in paragraph 90 of the [NAME_109] judgment. Where there is a range of matters that, taken together, amount to a constructive dismissal, some of which matters consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. In other words, it is a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory. Like so many legal tests which are a matter of fact and degree, this test may well be easier to set out than to apply. There will be cases in which the discriminatory events or incidents are so central to the overall repudiatory conduct as to make it obvious that the dismissal is discriminatory. On the other hand, there will no doubt be cases in which the discriminatory events or incidents, though contributing to the sequence of events that culminates in constructive dismissal, are so minor or peripheral as to make it obvious that the overall dismissal is not discriminatory. However, there will be other cases, not falling at either end of the spectrum, in which it is more difficult for an ET to decide whether, overall, the dismissal was discriminatory. It is a matter for the judgment of the ET on the facts of each case, and I do not think that it would be helpful, or even possible, for the EAT to give general prescriptive guidance for ETs on this issue.

71. First, I do not accept the submission, made by Mr [NAME_138] on behalf of the Respondent, that a “last straw” constructive dismissal can only be unlawful discrimination if the last straw itself was an act of discrimination. In the present case, the ET found that the last straw, the dog poo incident, was not an act of discrimination. In my judgment there can be cases in which the constructive dismissal is, overall, discriminatory, even though the last straw was not. The very essence of the “last straw” doctrine is that the last straw need not be something of major significance in itself. It need not even amount to a breach of contract, when looked at on its own. It need not have the same character as the other incidents that preceded it: see Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493; [2005] ICR 481, at paragraphs 15-16 . Rather, the significance of the last straw is that it tips things over the edge so that the entirety of the treatment suffered by the employee amounts to a repudiatory breach of contract. It follows by parity of reasoning, in my view, that a constructive dismissal may be unlawful discrimination even if the incident which tipped things over the edge was not itself discriminatory. Another metaphor that is sometimes used for a “last straw” constructive dismissal is the “death of a thousand cuts”. If some of the deepest cuts were acts of discrimination, it should not matter that the final glancing blow, though painful, was not itself discriminatory.

Unauthorised deductions from wages

248. Section 13 of the Employment Rights Act 1996 sets out the right not to suffer unauthorised deductions from wages:

13. Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

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(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

(8) …

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THE TRIBUNAL’S CONCLUSIONS

249. Taking into account our findings of fact and applying the law to them the tribunal has reached the conclusions set out below in relation to the claimant’s claims. The conclusions are addressed in the order set out in the agreed list of issues in this case.

Disability

250. The respondent has already conceded that the claimant was disabled for the purposes of her claim by reason of PMDD and symptoms of perimenopause.

Reasonable adjustments claim.

Did the respondents have actual or constructive knowledge of the claimant’s disabilities? If so, from what date?

251. During closing submissions, the respondents conceded knowledge of the claimant’s disabilities from early March 2023. The tribunal has concluded that the date of knowledge is actually 1 March 2023. Whilst the claimant’s symptoms may well have deteriorated from August 2022, the respondent had no reason to know this. In particular, the respondents were not privy to the claimant’s medical records or any letters from her treating doctors. As set out above, the claimant did not communicate with her employer about her deteriorating symptoms straight away. It is only from 1 March that the respondents had sufficient information to give them constructive knowledge of the disabilities. It is at that point that they had sufficient information to put them on enquiry as to the nature and extent of the claimant’s impairments.

252. The claimant was absent from work on sick leave in late February 2023 and sent a message on 1 March 2023 which indicated that there were hormonal issues at play. PMDD was named and reference was made to various treatments that the claimant was using, including antidepressants. The tribunal considers that these factors were sufficient to put the respondents on notice that the claimant was (or might be) disabled. At this stage the respondents could and should have taken steps to enquire about the disability and get more information about the claimant’s health concerns. Had they done so, they would have been made more fully aware of the significance and longevity of the impairments. They had constructive knowledge of the disabilities from that date. Indeed, it was later on 1 March that [NAME_27] was asked to contact the claimant to provide her with a point of support in relation to hormonal issues. This suggests that the respondents realised that the claimant’s medical condition was sufficiently significant that some degree of support was needed. The respondents took this seriously enough that they took steps to help the claimant. Whether or not such steps were sufficient is a separate matter, to be addressed below.

253. In light of the findings of fact, we concluded that the respondent had actual or constructive knowledge of the disabilities on or about 1 March 2023. If

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they did not know the full extent of the claimant’s conditions then they had sufficient information to be ‘put on enquiry’ and take steps to find out what they needed to know about the significance of the impairments, their impact and likely longevity. The respondents were fixed with knowledge of the disabilities from 1 March 2023 for the purposes of the Equality Act claims.

Did the respondent have the alleged [NAME_105]?

254. The claimant relied on a series of [NAME_105] for the purposes of her claim. We considered each of them separately.

[NAME_139]: A requirement that the claimant work in the office

255. The claimant maintained that the respondents had a PCP which was a ‘requirement that the claimant work in the office.' The tribunal concluded that there was a requirement for the claimant to work in the office for part of the working week but there was flexibility about how this worked in practice. The starting point was that the claimant would work one day per week from home. There was additional flexibility as a result of the claimant’s need to go out of the office on site visits to clients. She would need to work outside the office to make these site visits. Furthermore, the claimant was employed at director level and, as a result, had a significant degree of autonomy in relation to how she organised her working week. Hence, on occasion she would work from home if she was suffering symptoms but was not so unwell that she had to take sick leave.

256. In light of the above this PCP was established but it was more nuanced than the list of issues would suggest. There was a requirement that the claimant work from the office for at least some of the time during the working week but the amount of work done from the office was not rigidly fixed. One or more days could be worked from home or from other locations, such as client sites.

PCP2: The application of the company sick pay scheme as set out in section 9 of the claimant’s contract of employment, to only allow for 15 days full company sick pay and then statutory sick pay (subject to the first respondent’s discretion.)

257. The tribunal concluded that this PCP was established because it was the application of the contractual sick pay term to the respondents’ workforce. The application of the contractual term to the workforce (including the claimant) would trigger entitlements for different employees at different chronological times because of their differing circumstances (i.e. the amounts of sick leave taken) but the term itself was applied across the board to the employees. The contract term was the same. Hence, this PCP was established on the facts of the case, although it is perhaps not expressed as clearly as it might be in the list of issues.

PCP 3: The requirement for the claimant to work full time hours.

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258. The PCP was actually for the claimant to work her contractual hours which, in her particular case, were full time hours. That requirement to work full time hours was never put into abeyance or suspended for the claimant. The respondents may not have criticised the claimant for being late, on occasion. However, that does not mean that they had removed the requirement for the claimant to work full time just because they did not take disciplinary action against her or apply sanctions for lateness (or any perceived failure to work her full time hours.) This PCP was established on the facts of this case.

PCP 4: The requirement for the claimant to work in the first respondent’s main office.

259. Insofar as this is a restatement or reformulation of the first PCP, it was established, for the same reasons as set out above in relation to the first PCP. Insofar as the fourth PCP is actually a reference to the claimant having to work in the respondent’s main office (as opposed to the [NAME_34]) this was also established as a PCP. The starting point was that all staff worked in the open plan communal office. Nobody had the [NAME_34] assigned to them as their primary place of work. Indeed, even the second respondent worked in the communal open plan office. All staff were able to use the [NAME_34] (subject to availability) when they needed a workplace which was separate to the communal office space (e.g. for privacy or to hold a meeting.) Likewise, staff could use the workplace kitchen to work from if this was preferable and some staff also sometimes worked from home. This PCP was established, subject to a recognition that the reality was more nuanced than the short statement of the PCP in the List of Issues might suggest. The claimant was required to work in the first respondent’s main office, but not exclusively.

PCP 5: The setting of the air conditioning at a particular level for the entire office

260. This PCP was established. The air conditioning in the building was centrally controlled for the building as a whole, not just the respondents’ portion of it. We heard no evidence to suggest that the respondents could set different temperatures in different parts of their office accommodation. It appears that the respondents had the ability to ‘tweak’ the temperature within their portion of the building by 1 degree either way but otherwise the temperature and air conditioning was centrally controlled for the whole building. In any event, we heard no evidence that the respondent could set the air conditioning separately in different parts of its portion of the building (e.g. in the kitchen vs the [NAME_34] vs main open plan office.) There was no evidence of individualised air conditioning units in different parts of the respondents’ office accommodation. This PCP was established.

Did the [NAME_105] put the claimant at a substantial disadvantage compared to someone without the claimant’s disability in that:

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(1) In connection with PCP number 1, noise, temperature and the light can negatively affect the claimant’s cognitive functioning.

261. The tribunal separated out its consideration of the impact of noise, temperature and light on the claimant. The tribunal accepts that someone with the claimant’s hormonal conditions would struggle to self-regulate their temperature. When working in the office, the temperature in the office (and the lack of flexibility in relation to setting the temperature specifically for the claimant) would put the claimant at a substantial disadvantage compared to those without her disability. We accept that this PCP put the claimant at this particular comparative substantial disadvantage.

262. If an employee is struggling to regulate their temperature this is likely to adversely affect their cognitive functioning. Thus, the claimant, working in the same office as colleagues who did not have her disabilities, was at a substantial disadvantage which her colleagues would not experience. Her cognitive functioning would be adversely affected by working in the office (where the temperature was not adjusted to her specifically) in a way that her non-disabled colleagues would not be adversely affected.

263. The tribunal was not satisfied that the other elements of substantial disadvantage were established in relation to this PCP. The tribunal heard no evidence about the lighting in the office. The tribunal does not know whether the light came from natural sources (windows) or was electric/fluorescent. We do not know whether all workstations had the same level of lighting. The only photograph [page 889] only shows a partial view of the office and so does not assist us. The only issue suggested by the claimant was that if she was working directly under a light this might trigger a migraine. However, we did not have any medical evidence to show that different light levels were likely to exacerbate the symptoms of the claimant’s disabilities or that this would negatively affect her cognitive functioning.

264. The tribunal was unable to find or accept that this PCP put the claimant at a substantial disadvantage in relation to light in the office without an adequate evidential basis for such a conclusion. The tribunal also looked for some form of medical evidence to support this conclusion. This was lacking. Furthermore, the PMDD guide at page 685 did not suggest that light would be an issue which may trigger the need for adjustments. Without the necessary evidence we did not accept that the PCP put the claimant at a comparative substantial disadvantage in relation to light.

265. Likewise, we were not satisfied that the PCP put the claimant at a substantial disadvantage through the mechanism of noise levels. Firstly, the tribunal had no clear evidence about the noise levels in the office. Nor did we have clear evidence that noise levels could exacerbate the claimant’s symptoms and thereby negatively affect her cognitive functioning. Furthermore, all employees (whether disabled or not) may struggle to concentrate or think clearly when working in a noisy environment. The tribunal could not assume that the claimant would be at a comparative disadvantage to non-disabled employees in this regard. The tribunal could

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not say that the PCP put the claimant at a substantial disadvantage in relation to noise compared to employees without the disability. Noise is likely to have affected all employees to some extent and we had no evidence that the claimant would be at a substantial disadvantage compared to her non- disabled colleagues.

266. In light of the above, the tribunal accepted that the first PCP put the claimant at a substantial disadvantage compared to non-disabled employees in relation to temperature but not in relation to noise or light levels.

In connection with [NAME_140] the claimant’s sickness was due to her disabilities and she only received 15 days of company sick pay and then statutory sick pay.

267. Here the substantial disadvantage is that someone with the claimant’s disability is more likely to take time off work on sick leave and, therefore, more likely to exhaust her contractual entitlement to full company sick pay and then have to transfer to statutory sick pay. As a result, someone in the claimant’s situation is more likely to suffer a financial hardship than someone without the claimant’s disability in that they may have to survive on statutory sick pay rather than full pay. The tribunal is satisfied that the PCP of applying the contractual sick pay provisions could put the claimant at a substantial disadvantage compared to those without the disability. The tribunal does not accept that all of the claimant’s sickness absence was related to her disability. However, the tribunal does not have to be satisfied that the claimant was only off work on sick leave for disability related reasons in order to accept that the PCP put her at a substantial disadvantage compared to non-disabled comparators. The tribunal is satisfied that this PCP did put the claimant at the stated substantial disadvantage.

In connection with [NAME_141], the claimant has trouble sleeping, sometimes experiences anxiety in the morning and is generally more fatigued and depressed and therefore finds it harder to work full time hours.

268. The tribunal is satisfied that the PCP put the claimant at the substantial disadvantage that she alleges. We accept that the anxiety and sleep problems which were associated with her disability meant that she was more likely to find full time hours more difficult that somebody without her disability. This conclusion is based on elements of the claimant’s own evidence where she described her fatigue and sleep problems and also on the contents of [NAME_84]’s report.

In connection with [NAME_142], the claimant found it more difficult to concentrate and function in a noisy office environment.

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269. As already stated, the tribunal has no clear evidence about the noise levels in the office and no real evidence that the noise levels had any adverse effect on the claimant’s cognitive abilities or impairments. Whilst cognitive impairments may be part of the claimant’s disability, we have no evidence on which to base a finding that they are exacerbated by noise. Furthermore, we cannot identify any evidence to satisfy us that any adverse effects were more pronounced in the claimant than they would have been in an appropriate non-disabled comparator. Consequently, we cannot see that the PCP put the claimant at a substantial disadvantage as compared to someone without her disability. This aspect of the substantial disadvantage was not established on the facts of this case.

In connection with [NAME_143], the claimant experiences hot flushes and finds temperature regulation more difficult.

270. As already indicated, the tribunal was satisfied that temperature regulation is a particular difficulty for the claimant as a result of her disabilities. It follows that setting the air conditioning at the same temperature for the whole office is more likely to be a problem for the claimant than for others without her disability. She is more likely to struggle to adapt or adjust to a centrally set temperature than those without her disabilities. The non-disabled comparators are more likely to cope with a temperature which is not to their personal preference and to be able to regulate their own temperature as necessary. Someone with a hormonal condition like the claimant’s may struggle to self-regulate their personal body temperature and so is at a disadvantage in relation to temperature in the workplace. If temperature is not properly regulated, we accept that this can adversely affect cognitive functioning. In short, the claimant has established that this PCP put her at the relevant substantial comparative disadvantage.

Did the respondents know or could they reasonably be expected to know that the claimant was likely to be placed at the disadvantage?

271. Following on from the previous paragraphs, the tribunal was satisfied that the respondent knew or ought reasonably to have known that [NAME_139] and [NAME_144] would put the claimant at the substantial disadvantage in relation to temperature regulation. A person applying their mind to this proposition would logically see the link and be able to come this conclusion. (The issues of noise and light do not arise given our earlier findings, as set out above.)

272. Likewise, the respondents either knew or could reasonably be expected to know that the claimant would suffer the financial disadvantage arising out of the application of PCP2, particularly as the respondents knew that she was taking some sick leave in relation to the PMDD and perimenopause symptoms. They ought to have realised that she would likely exhaust her company sick pay and transfer to statutory sick pay.

273. Furthermore, the respondents ought to have known that the claimant was

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having difficulties in relation to sleep and anxiety given the text messages and other conversations that the claimant had with colleagues about it. Indeed, a lot of things were reported to the workplace buddy (that the respondents had put in place for the claimant.) The fact that the claimant would say that she was struggling to come into work or would be in work late was a reasonable indication that the claimant was struggling to work full time hours. The respondents knew or ought to have known that the claimant was likely to be placed at the pleaded disadvantage in relation to [NAME_145].

274. For the reasons set out above, the tribunal does not need to consider whether the respondents had knowledge of substantial disadvantage connected to [NAME_146].

What steps could have been taken to avoid the disadvantage? The claimant suggests: (1) Allowing the claimant to work from home on a more regular basis

275. The claimant regularly worked from home, at least one day per week. The records show that she often said that she was unwell and would work from home as a result. Nobody prevented her from doing this. The claimant had a significant level of flexibility to work from home.

276. The claimant’s job role could not be done properly entirely via remote working from home. Certain aspects of the claimant’s role needed to be done from the office if they were to be done properly or efficiently. For example, the claimant would not have access to important information ‘in real time’ when she was working from home. For example, she would not see how the information on the Whiteboard changed over the course of the day. She would also not have visibility of more junior colleagues during the working day. The respondents were entitled to want her to work from the office for at least part of the time.

277. There was a period of 6-8 weeks where the respondents removed the claimant’s working from home day, but this was done in response to issues with performance figures and the tribunal is satisfied that it was done by agreement with the claimant. It was time-limited and was implemented for a specific purpose and to resolve a particular problem. It was as minimal an interference with home working as was possible, consistent with the needs of the business at that time.

278. Further, the respondents were not aware that the claimant took issue with the amount of working from home that she was permitted to do until the claimant asked to work from home full time on 19 September (the written request). Up until this point in time the respondents were (reasonably) under the impression that the claimant was satisfied that the amount of working from home that she did was adequate and suitable for her needs and those of the business.

279. The claimant made her request for full time working from home on 19 September, just after she had submitted her grievance. By this stage the respondent had already held the protected conversation with the claimant.

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The claimant resigned on 19 October. When the claimant asked to be able to work from home the respondents permitted her to do so pending her annual leave (28 September page 430) but with conditions applied to ensure that this would work in practice. Those conditions were designed to ensure that the claimant could work from home full time without unduly compromising the interests of the business. They were not unduly onerous and were rationally explicable. The claimant was not prepared to abide by those practical instructions.

280. In short, up until the latter stages of the chronology, the claimant expressed no desire to work from home more than she already did (an average of one day per week). The 6-8 week removal of one day working from home was agreed on a short-term basis. In the meantime, the respondents did not, and could not reasonably be expected to, know that she needed or wanted to do more working from home than they were already permitting. When the claimant asked to work from home full time the respondents actually permitted it on a temporary basis but with conditions which were designed to make it a workable proposition from a business perspective. That offer was never accepted by the claimant. The claimant refused the offer and objected to the terms and conditions for working from home full time. The tribunal finds that the claimant’s refusal to accept and apply the conditions and practical steps to facilitate full time working from home was an unreasonable refusal in all the circumstances. It would be unreasonable to expect the respondents to allow her to work full time from home without putting in place practical measures to make sure that it worked for the claimant and the respondents too.

281. The claimant then took annual leave so working from home ceased to be an issue at that point in time. Thereafter, the claimant started to submit fit notes which indicated that she was not fit to work at all. Adjustments to ways of working were immaterial in those circumstances. If the claimant was not fit to work at all, then there was no reasonable requirement to allow her to work from home. It was around this point in time that it became apparent that the issue that the claimant had with coming into the office was as much about a personality clash with [NAME_56] as it was about the need for reasonable adjustments for disability. The claimant did not want to talk to [NAME_56] or to see him or deal with him. At this stage the tribunal concludes it was more about the relationship clash with [NAME_56] than it was about reasonable adjustments. The claimant then submitted her resignation. Further, the respondent was attempting to get occupational health input before a proper decision was made. Working from home was therefore a temporary adjustment pending occupational health advice.

282. The tribunal concluded that every time the respondents offered full time working from home to the claimant, she put a barrier in the way of it and would not agree to it unless it was on her preferred terms. For example, she would not go to occupational health, and she would not agree to the practical conditions that the respondent needed in order to facilitate full time working from home.

283. There was one occasion where the respondents wanted the claimant to come into the office for three days when the company’s software was being updated and her input with [NAME_100] (the technology company) was required.

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The tribunal is satisfied that this was a reasonable request and that the respondents had sound reasons for wanting her to be in the office for a time- limited period. This is particularly understandable given the small size of the business and the fact that the claimant was supposed to be the second respondent’s second in command (in circumstances where there were only two executive directors.)

284. The starting point was that full time working from home did not really work for the business and so this was not an adjustment that the respondents could reasonably be expected to make on a permanent basis. In any event, the respondents did not know that the claimant wanted to work from home full time until September. When she requested this, they looked for solutions to keep everyone happy. When the claimant did not co-operate with the conditions, the adjustments were never really tested. Further, the tribunal was satisfied that the stated need to work from home 100% of the time was not disability related. A need for some home working on a flexible basis was likely to have been disability related but the desire not to work from the office at all only became an issue once there had been a complete relationship breakdown (from the claimant’s point of view) between the claimant and [NAME_56]. The tribunal notes that the duty to make reasonable adjustments arises in relation to disability related needs and disadvantage (as per the statutory test) and not in relation to other needs and preferences. Adjustments are to alleviate disability-related disadvantage. We are not satisfied that the claimant needed to work from home 100% of the time in order to alleviate any disability-related disadvantage.

285. Thus, if the situation is examined over time, the tribunal finds that there was no breach of the duty to make reasonable adjustments by the respondents. The respondent made the adjustments which were reasonably required and did so at the times that they were reasonably required. The claimant was offered what she needed up to the point where it was at the limits of business practicability. The claimant left other options untried and untested.

286. This part of the claim for reasonable adjustments fails and is dismissed.

(2) Paying the claimant full company sick pay throughout the entirety of her absence.

287. The claimant received company sick pay until September. At this point she was signed off work for work-related stress (although there is still reference to PMDD and menopause on her fit notes.) There was a protected conversation and the claimant then did not want to deal with the respondents. The statutory sick pay was not wholly a result of disability- related leave. The tribunal notes that the claimant would likely have been off work because of the difficulties in her relationship with the second respondent irrespective of her disability. Plus, the claimant had been given the option of working from home 100% of the time but she was unwilling to comply with the conditions for this and so took sick leave instead. Then the claimant was working her notice and had decided not to return to the job in any event.

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288. The tribunal reminds itself that reasonable adjustments pursuant to sections 20/21 are designed to alleviate the disadvantage arising from the application of the relevant PCP. They should be designed to help an employee back into work rather than providing better conditions for the employee to stay away from work. It is generally not a reasonable adjustment to pay an employee more in order to enable them to stay on sick leave. In relation to continuing to pay an absent employee beyond their standard entitlement to sick pay, the Court of Appeal has held that the Equality Act is designed to recognise the dignity of the disabled person and to require modifications which enable them to play a full part in the world of work. It is not designed to treat them as objects of charity which may in fact (sometimes and for some people) tend to act as a positive disincentive to return to work (see inter alia [NAME_108] v Secretary for Work and Pensions [2015] EWCA Civ 1265 at paragraph 68 as referred to above). Extending the claimant’s company sick pay in the circumstances of this case would, in effect, be paying the claimant to stay off work. The tribunal was not satisfied that it was a reasonable adjustment that the respondents were required to make in the circumstances of this case.

289. This part of the claim for reasonable adjustments therefore fails and is dismissed.

(3) Adjusting the claimant’s working day.

290. This is a relatively vague suggestion in the terms that are used in the list of issues. The tribunal has deduced that this proposed adjustment must mean giving the claimant a flexible start and finish time (as other adjustments to working time/the working day are covered elsewhere within the case/claim and these reasons.)

291. The claimant made no formal request for a flexible start or finish time, either in writing or orally. As a result, the respondents were not called upon to make a formal decision in this regard. However, in reality the adjustment was actually made for the claimant if one examines how she worked in practice. There were numerous examples in the evidence of the claimant having late starts to the working day (e.g. in text message conversations). The claimant was not subjected to any detrimental treatment as a result of this. The claimant was not subjected to pressure or criticism as a result of starting her working day late. All the respondents did was to ask questions so that they knew what was happening and so appropriate cover could be found for tasks which the claimant would not be able to do because she was starting work late. Likewise, the claimant was free to finish work early without being subjected to criticism. She gave evidence that she finished work early on Fridays (3pm). Whilst the respondents did not think this was ideal, it was not raised as a problem with the claimant at the time. The only thing which was raised with the claimant at the time was the issue of doing site visits on Fridays, but that was a separate matter (which also had a sensible business rationale.) Thus, if adjusting the claimant’s start and finish

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time is proposed as a reasonable adjustment to alleviate the claimant’s disability related disadvantage, the tribunal finds that the respondents in fact made the adjustment as and when it was required. Consequently, there was no failure to make the adjustment and no breach of any duty to make reasonable adjustments in this regard.

292. Consequently, this part of the reasonable adjustments claim fails and is dismissed.

(4) Reducing the claimant’s working hours (and consequently her salary).

293. The tribunal refers to its findings of fact in relation to the events of 23 August 2023. There was no proper request made by the claimant for reduced hours and the issue was not pursued or followed up formally by either party. The tribunal has already described what seems to have been a hurried, ‘snatched’ conversation where any request to reduce hours was not heard or understood. Consequently, given the findings of fact there was, in reality, no refusal of reduced hours by the respondents.

294. There was a written request for a four-day week on 19 September. It was not a broader request to reduce hours. There was a response in relation to working from home on 28 September, but it did not address working part time. Then the claimant was due to go on annual leave. Thereafter she was signed off work on sick leave. This shows that any desire on the claimant’s part to reduce her hours was actually overtaken by events because the claimant was then said not to be fit to work at all. Following on from that, there were discussions about occupational health and then the claimant resigned.

295. The chronology of events shows that the issue of reducing the claimant’s working week never became an active question that the respondents needed to address after the written request was made because there were other reasons for the claimant’s absence during this time period. The tribunal has concluded that there was no point in time in the chronology of events where all the ‘moving parts’ settled long enough for the respondents to make an informed decision about whether a four-day week was practicable, or not. It was a relatively fast changing situation with the claimant’s requests and circumstances changing over time.

296. The tribunal also asked itself whether reducing the claimant’s work to a four- day week would actively alleviate the fatigue and cognitive disadvantage complained of by the claimant. The claimant asked to change her days of work (i.e. reduce from five to four, compressed working). She did not ask for a change to her hours. The tribunal questions whether a reduction to a four- day week was actually going to assist in managing the claimant’s disability- related problems. Arguably, reducing fatigue would be better achieved by reducing the length of the working day but this is not what the claimant asked for.

297. Taking a step back, the tribunal concludes that reducing hours is something

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that, in theory, could have been consulted upon but there was never a realistic point in the chronology of events in this case where the evidence and information available to the respondents was such that they were under a legal obligation to make this adjustment. Theoretically, this could be a reasonable adjustment in some cases but on the facts of this case it was not a reasonable adjustment. The tribunal cannot say with any degree of confidence that the duty to make this adjustment arose at a particular time and that the respondents failed to comply with that duty within a reasonable time frame. As a result, this part of the reasonable adjustments claim fails and is dismissed.

(5) Allowing for additional breaks in the working day.

298. In relation to breaks, nobody enforced formal or strict break times. The claimant’s level of seniority meant that she could arrange her breaks to suit herself. She did not need to seek authorisation. She could take additional breaks if required, she had flexibility. Indeed, there were no fixed breaks apart from the lunch break. Nobody prevented her from taking breaks as necessary. If she was working from home or out on site nobody in the business would know that she was taking a break anyway. The claimant was a director of the business and there is no suggestion that the respondents sought to manage her breaks. She had autonomy commensurate with her position. There is an absence of evidence from the claimant to establish that this was ever really an issue for her.

299. On the facts of this case there was no failure to make the adjustment in relation to breaks. This part of the claim for reasonable adjustments fails and is dismissed.

(6) Providing a quiet space for the claimant to work.

300. In line with our findings of fact, the tribunal concludes that there was no ‘quiet space’ that could be designated for the claimant to work in. The claimant could use the [NAME_34] as and when it was available but other people would have a reasonable need to use it from time to time. The respondents were not required to designate the room for the claimant’s exclusive use.

301. In any event, the respondents were not under a duty to make such an adjustment because of the tribunal’s findings above in relation to ‘substantial disadvantage’ and noise in the workplace. The tribunal has concluded that the claimant has not established that the [NAME_105] put her at a substantial disadvantage in relation to noise. Therefore, the duty to make reasonable adjustments to alleviate disadvantage linked to noise has not been triggered in this case. There was no breach of duty in relation to providing a quiet space for the claimant to work.

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(7) Providing a fan

302. The tribunal found as a fact that the claimant was offered a fan but pre- empted it. She brought her own fan into work before the respondents had a reasonable opportunity to provide one for her. She brought her fan into work and did not claim reimbursement for it, so the issue of the cost of the fan did not arise in practice. There was no suggestion that the claimant asked the respondents to provide another fan so that she could take her own fan back home to use outside the office environment. In light of this, the tribunal is unable to find a breach of the duty to make reasonable adjustments in this regard. This part of the claim fails and is dismissed.

(8) Turning the air conditioning down

303. The evidence before the tribunal was that the respondents turned the air conditioning down as far as they were able to. They were unable to do more than they, in fact, did. Outside of this small margin of adjustment, the air conditioning was centrally controlled for the whole building (i.e. not just the respondents’ part of the premises) so the respondents could not make further adjustments. It would be unreasonable to require the respondents to move premises to facilitate better air conditioning for the claimant. This would be disproportionate to the impact of the problem on the workforce as a whole and disproportionate to the degree of difficulty and disadvantage experienced by the claimant in relation to temperature in the workplace. It would not be reasonable to require the respondents to make such an adjustment and make wholesale change to their office premises with all the disruption that that would entail. Consequently, the tribunal finds that the respondents did not breach any duty to make reasonable adjustments in this regard and this part of the claimant’s claim fails and is dismissed.

Section 15 discrimination

Did the respondents treat the claimant unfavourably by: (1) Placing the claimant under pressure to attend work whilst absent through sickness on 9 August 2023

304. In line with our findings of fact, this element of unfavourable treatment was not found proven. The respondents did not put the claimant under pressure to attend work as she alleges. This part of the claim therefore fails on the findings of fact.

(2) Having a protected conversation with the claimant on 11 September 2023 and suggesting that if she didn’t accept a settlement, the claimant would be subjected to the capability or conduct procedure due to performance,

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conduct or capability issues.

305. In line with our findings of fact, this element of unfavourable treatment was found proved. The respondents did hold a protected conversation and the alternative to settlement was likely to be a capability or conduct procedure.

Did the following things arise in consequence of the claimant’s disability? (1) The claimant’s sickness absence on 9 August 2023?

306. Yes, the tribunal accepts that this arose in consequence of the disability, but this does not assist the claimant in her claim. This is because the unfavourable treatment which she alleges was ‘because of’ this has not been found proved. Consequently, this aspect of the claim will ultimately fail. The claimant will not be able to show that there was unfavourable treatment because of this ‘something arising from disability.’ (See paragraph 304 above.)

(2) The claimant’s performance, conduct or capability was poorer because of the impact of the disabilities.

307. The tribunal considered the different elements of this alleged “something arising” from disability with care and concluded that some elements of the claimant’s behaviour (that could be characterised as conduct) may have arisen from her disability but that not all of this “performance, conduct or capability” was shown to be poorer because of the impact of her disabilities.

308. In relation to performance, the claimant actually asserted that her performance figures were better than those of other employees, that she was ‘top biller.’

309. In relation to the aspects of the claimant’s job which related to business planning (and which could be said to be the director level aspect of the role), there is no evidence that underperformance here was linked to disability. The tribunal concluded that any underperformance in this respect was more likely to be due to the fact that this was the claimant’s first job at director level. Whilst she had a proven track record of performance at lower levels (running departments or acting as a recruitment consultant herself), the same could not be said for director-level activity. The claimant had a good reputation for ‘core’ recruitment consultant activities but had, in effect, been promoted to director level when she was appointed to this role by the respondents. The tribunal was not satisfied that there was a proven link between the claimant’s underperformance in business development and her disability. It is just as likely that the claimant had been promoted above the level at which she was comfortable or competent to operate. The underperformance is more likely to reflect a lack of experience at this level of employment and seniority than a link to the disability. For example, we heard evidence that the respondent business experiences a seasonal dip after the summer each year. The claimant, as a director, was expected to have a plan to combat this (e.g. by building a pipeline to compensate for the fall off in business.) In 2022 the claimant had not addressed this as she had

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not been in post for very long. The same problem arose in the following year, and the claimant had not put plans in place to address it.

310. There was some reference in the evidence to the claimant having an extreme emotional response. The way that the claimant talked about colleagues and communicated with colleagues and subordinates may well have been affected by her disabilities, particularly as PMDD could be described (at least in part) as a mood disorder. This is likely to have been an issue to some extent throughout the claimant’s employment with the respondents even if the respondents did not really know about the claimant’s conditions until 2023.

311. The tribunal was satisfied that there was a link between the claimant’s disabilities and the alleged ‘something arising in consequence of disability.’ There was a partial and contributing link between conduct and the claimant’s disability, but it was more limited than the claimant would suggest. That said, it was a material link, which is sufficient for section 15 purposes. Guidance in Pnaiser and elsewhere shows that there may be more than one ‘link in the chain’ and the ‘something’ may still be said to be ‘arising in consequence of the disability.’ We are satisfied that there is a sufficient link between this alleged ‘something’ and the disabilities.

312. However, it is important not to overstate this. Not all of the claimant’s communication style is necessarily linked to the disability. If the way the claimant talks to people or about people or responds emotionally to situations can be described as a ‘side effect’ of the disability, the tribunal would expect it to manifest itself indiscriminately. We would expect the emotional response to be directed to others, across the board, rather than with specific individuals. So, some aspects of her interactions with other people may be affected by her disability, but not necessarily all of them.

313. The tribunal reflected on the link between the disabilities and the claimant’s emotional responses to situations and her communication style to test the link. The tribunal came to the conclusion that it would expect the elements of the communication style or emotional response which are linked to the disability to manifest themselves indiscriminately. Thus, if the claimant were feeling emotionally vulnerable for hormonal reasons, we would expect that to be demonstrated in her interactions with all or most colleagues. This would suggest that it is something outside of her control and a manifestation of her underlying disability. Having considered the factual evidence at length, the tribunal has come to the conclusion that the claimant’s communication style/emotional response was not indiscriminate. Rather, the evidence indicates an element of choice on the claimant’s part. The claimant talked about the second respondent in unfavourable terms from the very earliest stages of her employment. She has undermined him with his employees from an early stage. She encouraged a lack of respect for him and has encouraged subordinate employees to ‘vent’ or complain about him. That was a consistent pattern of behaviour on the claimant’s part. By contrast, there was no such pattern of behaviour in relation to others within the business. She doesn’t seem to have engaged in name-calling in relation to other people. (The only other example was of the claimant allegedly mocking someone who is neurodiverse but apart from that the claimant seems to have reserved this tone and approach for her dealings with (and

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about) the second respondent.)

314. In light of this we concluded that, although there is a link between the claimant’s disabilities and the way she communicated and reacted emotionally to people and situations, it is a relatively limited link. It does not provide a complete explanation for her behaviour and it does not provide a real explanation for the way she spoke about the second respondent or interacted with him.

In connection with the unfavourable treatment at paragraph 1, did the first and second respondent put pressure on the claimant to return to work because of that sickness absence?

315. For the reasons already stated, that element of unfavourable treatment is not established and so this aspect of the claim does not succeed.

In connection with the unfavourable treatment at paragraph 2, did the respondents hold a protected conversation because of the claimant’s performance, conduct or capability?

316. The tribunal reminded itself that the ‘something arising from disability’ need not be the only cause of the unfavourable treatment as long as it is ‘an effective cause’ of the treatment. The relevant part of the conduct/performance which the tribunal was satisfied was linked to the disability was the claimant’s ‘extreme emotional response,’ the way that she talks to and about her colleagues and subordinates at work. We therefore had to test whether this caused the unfavourable treatment in question.

317. We examined the ‘effective cause’ of the respondents deciding to hold the protected conversation with the claimant and suggesting that if she did not accept the settlement, she would be subject to the capability/conduct procedure. Was the claimant’s extreme emotional reaction or responses an ‘effective cause’ of that? We concluded that this was not an effective cause of the unfavourable treatment alleged in connection with the protected conversation. The necessary causation was not established for section 15 purposes.

318. The effective cause of the protected conversation was what was said during the business review meeting which pre-dated the protected conversation. The claimant’s comments during the business review meeting made it apparent that her performance in the role was not going to improve. She did not give the impression that she recognised the issues facing the business or that she had a plan to address the challenges facing the business. The real issue for the respondents was that the claimant’s business review meeting showed that her performance was not going to improve. This conclusion is based is those aspects of the claimant’s performance which we are satisfied are not disability related. That is to say, the causally relevant

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material was not the claimant’s emotional response/manner of communication but rather her lack of performance in the strategic/business planning/director-level aspects of her role. The way that the claimant communicated with others was not relevant to the respondent’s decision to hold a protected conversation. The reasons for the protected conversation and the contents of the protected conversation were not in any way caused by the claimant’s emotional responses or the way that she communicates. Rather, they are due to the respondents’ assessment that the claimant was underperforming as a director-level employee. She was not doing the parts of the job that he had recruited her to fulfil as the second respondent’s “second in command.”

319. Furthermore, the difficulties in the personal relationship between the claimant and the second respondent had been apparent to [NAME_56] for a number of months without him deciding to hold a protected conversation. He did not instigate a protected conversation when it became apparent that there was something of a personality clash between the claimant and himself. Rather, he waited to see if the claimant could nevertheless perform as a director and put in place the effective business plans that he needed from her. It was after the business review meeting that he decided that the claimant was not going to perform at the level required by her role and decided that the protected conversation was the appropriate way forward. She did not show the levels of concern about the business that one would reasonably expect of a director. Added to this, he was starting to find out that she had been suggesting to other employees that they would be better off employed elsewhere and that it would be in their interests to leave their employment with the respondent. She had also talked of competing with the respondents. In these ways she had acted contrary to the interests of the respondent company. All of these were material and contributing causes of the protected conversation and what was said during that protected conversation. None of these contributing causes arise from (or are linked to) the claimant’s disability.

320. Taking everything in the round, the tribunal is not satisfied that the relevant causation is established for this part of the section 15 claim. We are not satisfied that the unfavourable treatment was because of “something arising in consequence of disability.”

Was the treatment a proportionate means of achieving a legitimate aim? The respondents say that the aim was: “to mutually agree the claimant’s exit in circumstances where the respondent has genuine concerns about the claimant’s conduct at work and in circumstances where the claimant had evinced a desire to leave.”

321. If, contrary to our conclusions above, the necessary causation had been established, the issue of the respondents’ defence would arise for consideration. We have therefore gone on to consider that defence, for completeness.

322. We are satisfied that the respondents’ stated aim is a ‘legitimate aim’ within the meaning of the Act. It is legitimate for a business to look to exit an

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employee from the business without taking them through disciplinary/performance management, particularly if there is some indication that neither employer nor employee is particularly happy in the employment relationship. Having a protected conversation does not impose an outcome on the employee. It gives the employee the opportunity to exit the business on mutually acceptable terms. It is a way of trying to give both parties what they want. If it does not result in resolution by consent, then the employment relationship remains. It is not the imposition of a sanction on the employee.

323. Having satisfied ourselves that having a protected conversation in order to try to end the employment on mutually acceptable terms is a legitimate aim (and one which is specifically provided for by legislation), we considered the issue of proportionality. We concluded that a protected conversation is in fact the essence of proportionality because it avoids the employer imposing an outcome against the employee’s wishes. Further, there may be a financial benefit to an employee in approaching termination in this way. A protected conversation has the potential to increase the employee’s agency and choice rather than imposing a termination on them on the respondent’s terms. A protected conversation is more respectful of the employee and potentially significantly less stressful than taking an employee through a capability or disciplinary process. Capability and/or disciplinary processes give the employee less choice. Having a conversation with the employee in order to seek a resolution is proportionate.

324. We went beyond considering the issue ‘in principle’ to examine what was actually said and done in the course of the protected conversation in the claimant’s case. Having reviewed the transcript at page 829 we considered whether any of the things which were said or done during the conversation tipped it over the edge from being proportionate to being disproportionate and we concluded that they did not.

325. The claimant was not threatened with dismissal or discrimination. She was given a free choice. She was told that the respondent was minded to invoke the disciplinary process or performance/capability process (i.e. not attendance management but rather performance management.) The offer to terminate by mutual consent included financial terms and even released the claimant from some of the non-compete terms so that she could set up her own business, if she wanted to do so. If the claimant did not accept the offer she could return to work.

326. During the conversation the claimant was not threatened with dismissal. Just because a disciplinary or performance management procedure is invoked does not necessarily mean that the outcome will be termination of the employment. Lesser disciplinary sanctions are available. Performance management procedures may use personal improvement plans (‘[NAME_65]’s), or similar, rather than terminating an employee’s employment. The invocation of either of these procedures did not automatically imply that her employment would come to an end anyway, if she did not agree to the termination by consent that was on offer via the protected conversation.

327. [NAME_56] and [NAME_72] tried to explain what the protected conversation

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was for and why it was not a threat of dismissal. If we were to find that this was disproportionate, then there would be a risk that an employer could never have a protected conversation if they had concerns about an employee, for fear that it might be seen as a disproportionate reaction. This would significantly undermine the purpose and utility of such protected conversations. Further, the respondents in this case would have been criticised if they had not explained the context of the protected conversation and what might happen if the issue could not be resolved by agreement. By informing her of this, the respondents were furnishing her with all the relevant information she needed in order to be able to make an informed decision about the settlement offer.

328. In light of all of this, if the tribunal had decided that there was unfavourable treatment because of something arising from disability, we would nevertheless have decided that the respondent had established its defence to the claim. The treatment in question was found, in the alternative, to be a proportionate means of achieving the respondents’ legitimate aims.

Section 27: victimisation

Did the claimant do a protected act by lodging a grievance against the respondents on 15 September 2023?

329. The respondents have conceded that this amounted to a protected act and so this aspect of the statutory test is met.

Did the respondents do the following things: (1) On 16 September 2023 the claimant raised a subject access request with [NAME_23] and there was no response from [NAME_23] to that request.

330. The Subject Access Request (“SAR”) was responded to by [NAME_7] rather than [NAME_23]. In the course of cross examination, the claimant accepted that it was reasonable for [NAME_99] to refer it to [NAME_56] and for [NAME_56] to respond to the claimant directly. The claimant’s complaint seems to be that [NAME_99] did not, as a matter of courtesy, say that the second respondent would deal with the SAR.

331. The tribunal has concluded that the this does not amount to detrimental treatment for the purposes of the victimisation complaint. The absence of a ‘courtesy’ response or reply from [NAME_99] is of minimal importance in circumstances where the SAR was passed to somebody else to address it, and they contacted the claimant about it. The presence or absence of a response from [NAME_99] did not really make any practical difference to the claimant. It cannot reasonably or objectively be seen as detrimental treatment, even if the claimant considered it to be so. It made no real or significant difference to the claimant or her circumstances. It was de minimis.

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(2) On 27 September 2023 the claimant requested amendments to a sickness absence form from [NAME_23] and there was no response from [NAME_23] to that request.

332. As set out above, the claimant’s email was sent to [NAME_99] when she had left to start annual leave. The claimant was aware of this and it was also flagged up by the automated ‘out of office’ reply. The claimant complained about a lack of response. On 11 [NAME_56] responded by email in relation to a number of outstanding matters. In her evidence to the tribunal, [NAME_99] explained what she had done, and why. This issue was picked up and addressed by [NAME_56], insofar as the evolving circumstances allowed. [NAME_56] would make amendments to the form when the claimant returned from annual leave. The problem does not appear to have been pursued further by the claimant at the time. Either she did not see it as a particular problem, or she overlooked it in dealing with the other unfolding events.

333. Taking a step back from the detail, the tribunal concluded that the absence of a response from [NAME_99] to that particular request did not amount to the claimant being subjected to detrimental treatment by the respondents. It did not meet the threshold for detrimental treatment in a section 27 victimisation claim. The reality is that the claimant immediately received the automated out of office reply and so would know that she was not being deliberately ignored. This event needs to be reviewed realistically and reasonably in light of all the surrounding circumstances. The chronology of events shows that there were many emails between the parties during this period of time. Further, the claimant was away from the office and/or away from work for various reasons over this period of time (see above). Added to this, [NAME_99] did not work full time. The tribunal would be applying too high a standard to the respondents if it were to find that an overlooked email (in these circumstances) amounted to detrimental treatment capable of constituting victimisation. The law in this area does not require perfection. Viewed objectively and reasonably this did not amount to detrimental treatment within the meaning of the Act. There was a perfectly rational and reasonable explanation for it. The respondents were doing their best to respond to all matters arising within a reasonable period of time. Again, this was de minimis.

(3) On 9 October 2023 the claimant requested a copy of the employee handbook from [NAME_23] and there was no reply

334. The request from the claimant was at page 632. The next day, 10 October, she complained in an email to [NAME_23] that she had not received a reply to this and two other emails [page 632]. She then received a response from [NAME_56] on 11 October [page 456], as referred to above. [NAME_99] gave evidence that she was not a member of senior management and therefore it was more appropriate for this sort of matter to be addressed by [NAME_56]. Furthermore, she made the point (which the tribunal accepted) that the claimant was already aware that no such handbook actually existed at that time. Drafting a handbook had been put on [NAME_99]’s ‘to do list’ but the claimant still knew that she had not

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managed to do this by September/October 2023. [NAME_99] also gave evidence that her role in relation to the claimant was purely administrative. She felt uneasy/stressed by some of the claimant’s communications and felt that it placed her in a difficult position that was outside the scope of her role. She told the second respondent this, hence his direction that the claimant should communicate with him rather than with [NAME_99].

335. The tribunal is satisfied that the claimant already knew what the position was when she sent the request. She knew that there was no such handbook as she would have been made aware of it if it had been drafted. The claimant’s motive for sending the email is open to question. It appears that she was trying to catch [NAME_99] (and the respondents) out by making a request that she knew they could not comply with.

336. Once again, when viewed in its proper context, the tribunal is not satisfied that the absence of a reply to the claimant’s 9 October email constituted detrimental treatment within the meaning of section 27. The claimant did not suffer a real detriment by the absence of a reply when she already knew the true position. There was a rational and reasonable explanation for the absence of the reply, and the issue was, in any event, addressed by [NAME_56] in subsequent emails. This issue was also de minimis.

(4) Shortly after 15 September 2023, by email, the second respondent instructed the claimant to only communicate with him via email and not to communicate with other members of staff about all work matters.

337. The relevant email is at page 456 and is dated 11 October. The tribunal concluded that this was not detrimental treatment. There were good business reasons for this approach. The second respondent did not say that the claimant had to correspond with him about her grievance (the second respondent being the subject matter of the grievance.) Rather, the grievance had already been assigned to someone independent so that it could be properly investigated and responded to.

338. It was not unreasonable of the second respondent to ask the claimant to correspond with him about matters which were not the subject of the grievance. The second respondent was the claimant’s line manager, and he needed to be able to communicate with her directly in those circumstances. The small size of the organisation meant that it was not really possible to assign the claimant a separate point of contact for work related matters so that she did not have to liaise with the second respondent at all. Further, it is important to remember that the second respondent was the only other person who was engaged at a similar level of seniority to the claimant. He was the only person who really had the authority to address any issues raised by the claimant. In addition, the other employees in the business were not employed by the same legal entity (company) as the claimant. It was not reasonable for the claimant to insist that subordinate employees, employed by the other company, deal with her correspondence when the claimant was a director of the first respondent.

339. Taking matters in the round, the tribunal is not satisfied that the second respondent’s instruction to the claimant that she should communicate with

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him, amounted to detrimental treatment for the purposes of the victimisation claim. The second respondent had good reasons for issuing this instruction. The claimant could communicate with an independent grievance investigator about her grievance. Viewed both objectively and subjectively, she was not subjected to detrimental treatment within the meaning of section 27 in this regard.

(5) On 13 October 2023 the second respondent allowed the claimant to work from home on a temporary basis but instructed her to carry out a specific number of tasks throughout the working day and required her to ring in in the morning to say when she started work and ring in at lunch time to say she was taking her lunch. The claimant considers that she was micromanaged during this period. Those restrictions did not apply to the claimant before her grievance on 15 September 2023 and did not apply to her colleagues.

340. The email in question was an email sent in advance of the claimant’s return to work from holiday on 16 October [page 482]. It essentially reiterated the points previously made in the email of 28 September. It was concerned with finding a way for the claimant to work from home in a way which better suited her, whilst still protecting the interests of the business. It set out some ‘grounds rules’ or ‘reasonable expectations.’ The email set out the way in which the claimant could continue to work from home pending receipt of occupational health guidance. The position could then be reviewed with occupational health input. It included instructions for the three days when the [NAME_100] team was due to attend the office, when the claimant’s presence and input would be required. The second respondent stated that the claimant did not need to spend the full working day in the office on those three days (9am-5pm.) She could attend from 8.45am to 2.45pm if she preferred. In the concluding paragraphs of the email, [NAME_56] explained that he did not intend to ostracise the claimant and that he needed to be able to work with the claimant in the interests of the business. The email was intended to clarify expectations and working arrangements.

341. As already stated, in the tribunal’s view there was nothing unreasonable in those instructions being issued in an email if someone in the claimant’s position was going to be working entirely from home rather than from the office. This was the first time that the claimant was due to be working entirely from home rather than in a mixture of office working and home working. Given the potential co-ordination problems and the practical disadvantages to someone working entirely from home, these instructions were reasonable to issue in order to minimise any disadvantage to the business. It was to co- ordinate the links between the claimant’s work at home and the work going on in the office during the same period.

342. The tribunal is satisfied that issuing these instructions did not amount to detrimental treatment for the purposes of the victimisation claim. The email contained reasonable management instructions based on business need. The second respondent did not go beyond what was reasonably necessary

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to co-ordinate the claimant’s work and protect the interests of the business.

343. Furthermore, the instructions had nothing to do with the claimant’s grievance. If others had been working from home full time at the claimant’s level of seniority within the business, we are satisfied that they would have had to abide by the same instructions, for sound practical and business reasons. The decision was nothing to do with the grievance. If the claimant had not issued a grievance but had still asked to work from home full time, then we are satisfied that she would have been given the same list of instructions.

344. In line with the previous paragraphs the tribunal is satisfied that the claimant has not established that she was subjected to detrimental treatment by the respondents as pleaded in her victimisation claim.

Causation for the victimisation claim

345. The tribunal has not found that the claimant was subjected to any detriments for the purposes of her section 27 claim. We considered the issue of causation in any event. The tribunal nevertheless found that the respondents’ actions (relied on as detriments) were not because the claimant had done a protected act. The protected act was not a significant influence or factor which caused the alleged detrimental treatment.

346. We were satisfied that there was clear evidence of the reasons for the respondents’ actions in each case and that the protected act was not causally relevant. There was no need to have recourse to the shifting burden of proof. In any event, we were satisfied that the respondents had discharged any shifting burden of proof in relation to the protected act. In short, if the burden had shifted, we would have been satisfied that the respondents had discharged the burden of proof. There were sound reasons for the respondents’ actions during this period, and they had nothing to do with the fact that the claimant had done a protected act.

Discriminatory constructive dismissal

347. The claimant had less than two years’ service with the first respondent and therefore the tribunal has no jurisdiction to hear and determine an ‘ordinary’ unfair (constructive) dismissal claim. It would only be if any dismissal was also discriminatory that the tribunal would be able to find in the claimant’s favour.

348. As all of the claimant’s discrimination claims have failed and been dismissed, it is not possible for the tribunal to find that any dismissal was discriminatory. Therefore, the complaint of discriminatory dismissal fails (paragraph 5 in the list of issues.) In the interests of proportionality (given the length of this reserved judgment and reasons), the tribunal has not separately addressed whether the claimant was dismissed given that the claim cannot succeed in the absence of a finding of discrimination.

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Commission

349. The respondent’s case is that the claimant had earned commission but that it had contractual authorisation to withhold payment of the commission because of the applicability of clause 5 of the schedule to the contract (page 306). If the withholding of the commission was authorised by the terms of the commission scheme, then the claim for unauthorised deductions from wages would fail.

350. The tribunal had to decide whether the claimant’s case fell within the ambit of clause 5. Clause 5 indicates that where either:

a. The contract is terminated for gross misconduct; or b. After termination for another reason, the respondent discovers that the employment could have been terminated for gross misconduct, then payment of commission which is outstanding at termination (or which becomes due for payment after termination), is at the respondent’s discretion. In short, the respondent can exercise its discretion to withhold payment of the commission in those circumstances.

351. Is the claimant’s case one where the respondent could have terminated the claimant’s employment on the grounds of gross misconduct if it had not been terminated anyway?

352. The tribunal considered the respondent’s letter of 9 November at page 590 which contained a list of numbered points (1-5). We first considered which, if any, of these points was supported by evidence.

353. The first point referred to the claimant making inappropriate comments to junior staff that, if the business review did not go well, the claimant would leave the business and set up by herself. In fact, the evidence which the tribunal heard was that the claimant said that if the issue of her PMDD was not raised in the business review meeting, she might as well go elsewhere. This does not amount, in itself, to gross misconduct, and the tribunal was not satisfied that the respondent would have been entitled to dismiss the claimant for this alone. However, we were satisfied that there was substantial evidence of the claimant engaging in conversations with junior staff which undermined the position of both respondents in the eyes of those junior staff. She acted contrary to the best interests of the respondents in the way that she spoke about them to the junior staff. The specific comment attributed to the claimant in this paragraph may not have been wholly accurately quoted but it is evident that the claimant had started to indicate that she would leave the business. She also indicated that she would set up in business on her own account (potentially in competition with the respondents.)

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354. At paragraph 2 on page 590 it was asserted that the claimant encouraged and/or advised junior employees that they would be better paid if they worked elsewhere, and that the commission structure of the business was poor. That the claimant did in fact do this is established by the various text message exchanges that the tribunal has considered at length and discussed in the earlier paragraphs of this decision. The important point is that the claimant was a statutory director of the company. She owed fiduciary duties to it and should not have been acting contrary to the best interests of the company. Her interactions with junior employees were clearly not in the best interests of the company. She was undermining the respondent and encouraging staff to leave and go elsewhere. The tribunal is satisfied that this would amount gross misconduct and there is evidence to prove the claimant committed gross misconduct in this respect. The respondent would have been entitled to dismiss the claimant for gross misconduct based on this. The respondent was therefore entitled to exercise its discretion to withhold the commission pursuant to clause 5 on this basis.

355. The allegation at paragraph 3 on p590 is not proven on the evidence the tribunal has heard and read and so we are not satisfied that the claimant could have been dismissed summarily for this.

356. The allegation at paragraph 4 on p590 is not an allegation of gross misconduct per se but could amount to gross negligence given her position as a director. She did not show adequate concern about the business at the business review meeting and did not seem to be particularly concerned to promote the best interests of the business or discharge her duties as director. As set out above, she had not taken steps to protect the interests of the business or carry out business planning activities.

357. Gross negligence (opposed to ‘simple’ negligence alone) can constitute gross misconduct in the context of a contract of employment. Grossly negligent actions, even if not deliberate or intentional misconduct, can be properly legally characterised as gross misconduct.

358. Paragraph 5 on page 590 suggests that the claimant was not fulfilling her contracted hours whilst at home. This is not established in the evidence we have considered, and we are not prepared to find that this would have justified summary dismissal.

359. In the paragraph underneath the numbered paragraphs on p590, there is reference to the claimant refusing to follow reasonable management instructions and then alleging that the instruction was an act of victimisation. Various examples are cited which are said to demonstrate the claimant’s uncooperative and difficult approach to her relationship with the respondents. Whilst these would not amount to gross misconduct in themselves, they are certainly evidenced in the documents we have considered during these proceedings. They certainly compounded the problem the respondents faced in managing the claimant in the latter days of her employment. She compounded the problems and made the relationship increasingly unworkable, particularly given her seniority within the organisation.

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360. In addition to the above, the second respondent received the email on 8 September at page 963. This contained a summary of the matters that had been reported to the second respondent. However, the tribunal does not have access to the underlying evidence which might have substantiated these allegations. In truth, page 963 is a set of allegations, and we do not know whether there was evidence which could or did prove the truth of the allegations. In those circumstances, the respondents cannot rely on the contents of this email to show that they would have been entitled to dismiss the claimant for gross misconduct such that they were entitled to withhold the commission. However, this does not make a material difference to the outcome in the claim for commission.

361. Irrespective of the shortcomings of the letter at p963, there is sufficient evidence to substantiate some of the important allegations contained in the letter at page 590. There is enough evidence to show that the claimant’s actions (either taken separately or cumulatively) amounted to gross misconduct. The claimant had committed a repudiatory breach of contract, and the respondent would have been entitled to dismiss her summarily as a result. This brings the claimant’s case within the ambit of clause 5 of the commission agreement.

362. In short, the tribunal is satisfied that there was sufficient proof of the matters at numbers 1 and 4 on page 590. We were also satisfied that there was proof of the claimant’s deliberately obstructive and uncooperative behaviour as referred to at the bottom of page 590.

363. If these matters had been known about during the currency of the claimant’s contract of employment, they would have entitled the respondent to summarily dismiss the claimant. They were sufficiently serious to amount to gross misconduct. Thus, the respondent was entitled to rely on clause 5 of the commission agreement and withhold the commission payment. The tribunal accepts that clause 5 was properly invoked when the decision to withhold commission was communicated to the claimant in February and March 2024.

364. As the withholding of the commission payment is authorised by the claimant’s agreed contractual terms, it does not constitute either a breach of contract or an unauthorised deduction from wages. The claimant’s claim to payment of commission therefore fails and is also dismissed.

365. In light of all our findings above it has not proved to consider the issue of time limits/limitation in this case.

Approved by:

Employment Judge Eeley

30 January 2026

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JUDGMENT SENT TO THE PARTIES ON

10 March 2026

FOR THE TRIBUNAL OFFICE

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case Numbers: 2411465/2023 2412218/2023 2402794/2024

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondents: [redacted]

(2) [NAME_6]

JUDGMENT

The claimant’s application dated 24 March 2026 for reconsideration of the judgment sent to the parties on 10 March 2026 is refused.

REASONS

1. There is no reasonable prospect of the original decision being varied or revoked for a number of reasons. The claimant’s grounds for reconsideration are either ill-founded or do not necessitate disturbing the decision and conclusions in the original reserved judgment and reasons.

2. The claimant has made a written application for reconsideration based on three grounds, accompanied by a bundle of documents comprising 133 pages.

Ground 1: Photographic Evidence and Credibility

3. The claimant refers to some photographic evidence which, it is said, was disclosed by the respondent on day 4 of the 5 day hearing. The reconsideration application states, in essence, that the claimant objected to these photos being admitted into evidence and that the Tribunal did not allow them to be introduced into evidence. The application suggests that the Tribunal did as the claimant asked during the hearing but should not have done so. This is because she has reflected on the photographs since the hearing and has decided that they are not authentic and that, in hindsight, it would have benefited her case to have them introduced so that she could

have cross examined the respondent’s witnesses about the authenticity problems. The reasoning is that, if this had happened, the Tribunal would have concluded that the photos were not authentic and would have been bound to conclude that the claimant’s witness evidence should be preferred to that of the respondents’ witnesses. If that had happened, the claimant argues that the Tribunal would not have made the findings of fact that it did and the claimant’s case would have succeeded.

4. The application suggests that the claimant was ‘denied’ the opportunity to cross examine the witnesses on discrepancies in the documents. However, there is no record of the claimant asking for the evidence to be adduced into evidence or of her asking to be able to cross examine the witnesses about it. The photographs included in the reconsideration bundle are not within the Tribunal’s hearing papers, and more than four months after the end of the hearing, do not look familiar. Whilst some documents were disclosed by the respondent during the course of the hearing and were permitted into evidence (upon application), there is no contemporaneous record of either party asking the Tribunal to consider these photographs.

5. The claimant’s written closing submission included submissions about a fabricated text message (page 3 of the document) which was said to be at the back of the bundle. However, this was discussed with the Tribunal at the hearing on 9 December 2025. It was pointed out to the claimant and her representative that those messages were not, in fact, included in the hearing bundle. The parties were asked whether the texts/photographs needed to be admitted into evidence. It was indicated that if the document were to be added, there would need to be a pause in the hearing to decide whether to facilitate this and how best to do so. [NAME_93] indicated that this was not necessary. [NAME_93] was asked whether the claimant wanted those text messages/photographs to be included in the evidence bundle and the response was that, no, she did not. This issue arose for discussion partly because the Tribunal and the respondent had read the claimant’s written closing submissions which referred to these text messages (page 3). On reading the submissions, the Tribunal queried whether the text messages were ‘at the back of the hearing bundle’ as the description of the documents did not match anything at the back of the Tribunal’s hearing bundle and the Tribunal could not remember this evidence being introduced during the final hearing. Hence, the written submission in relation to these documents was properly disregarded. The tribunal did not have copies of the documents which were referred to. These written submissions were produced after a gap between the two parts of the hearing in September and December 2025. The claimant had had time to reflect on the evidence that was produced during the main part of the final hearing, in September 2025 before making closing submissions in December 2025.

6. Whilst the Judge understands the claimant’s position in the reconsideration application, this is not the position she took at the hearing. It is something she has reflected upon and now submits with the benefit of hindsight. There is a public interest in finality of litigation which means that it is rare to reopen a case and re-hear evidence on the basis of evidence which was available at the time of the original hearing but was not included in the evidence presented to the Tribunal. Generally, litigants are not permitted to have ‘a second bite of the cherry’ in this way. Furthermore, it is not necessarily the case that the Tribunal would have made the findings of fact which the claimant suggests if the photographic evidence had been admitted and the witnesses cross examined in relation to it. The photographic evidence is now relied upon in relation to issues of credibility, but it is seldom the case that a single piece of evidence is the basis for a Tribunal’s conclusions in relation to a witness’s credibility.

7. In short, it is unlikely that the introduction of the evidence and the cross examination of the witnesses in relation to it would have been decisive in the way that the reconsideration application suggests. Furthermore, the failure to consider evidence which the claimant did not ask the Tribunal to consider at the time cannot reasonably be characterised as procedural unfairness. The claimant had the opportunity to ask the Tribunal to consider the evidence during the course of the hearing and did not take that opportunity. In line with established case law principles (Ladd v Marshall [1954] 1 WLR 1489), the Tribunal is not required to allow the claimant a further opportunity to reopen the evidence after the event. The evidence was available and could have been used at the hearing. It cannot be safely said that the evidence would probably have had an important influence on the hearing and that the Tribunal would have been required to draw the conclusions that the claimant contends for.

8. The reconsideration application suggests that the Tribunal failed to draw an adverse inference from the absence of a potential witness. It is asserted that the respondent failed to call a witness who was present at a particular time and could have provided independent corroboration. The application suggests that the Tribunal should have considered drawing an adverse inference from the respondent’s decision not to call that witness, namely that their evidence would not have assisted the respondent’s account.

9. There is no rule of law that the evidence of a witness must be corroborated by another in order to be accepted. The process of weighing and considering evidence is a multifactorial one. The Tribunal was not required to draw an adverse inference from the absence of the witness. Furthermore, the written reasons for the judgment are what is required to enable the parties to know why they have won or lost. They have to be ‘Meek compliant’, but it is not reasonably practicable to address each and every potential argument that could be raised in each party’s favour. There is no

duty to give a reason for every argument. In addition, findings of fact are based on a number of different sources (which include the contemporaneous documents and the written and oral witness evidence). The findings of fact have to have a basis in the evidence. The presence or absence of a particular witness may or may not be a relevant consideration but is unlikely to be determinative in the context of a case with many sources of evidence.

Ground 2: Reduced hours request (inadequate reasons)

10. This part of the application is, effectively, a rearguing of the case. Whilst it may be possible to provide further and additional reasons for a judgment, this does not necessarily mean that the written reasons are not Meek compliant. The reasons have to be read as a whole. The application points to the perceived inadequacies in the credibility of the respondents’ witnesses. However, the claimant’s own witness evidence also had shortcomings. The application refers to the practical reality of a situation where a conversation has taken place in a hurried and informal context. However, it was the claimant who chose to try and have this conversation in these circumstances rather than to wait until there was an appropriate time and opportunity to have a conversation which she considered to be important.

Ground 3 Failure to address absent witnesses and unbalanced assessment of evidence

11. This part of the application is largely addressed above. Further, the claimant has misinterpreted the Tribunal’s findings in relation to the email of 8 September from [NAME_91] (alleging misconduct by the claimant.) It is asserted that the Tribunal accepted the email as evidence of fact. The Tribunal, properly understood, did not use the email evidence in this way. See, in particular, paragraph 147 of the Tribunal’s reasons which refer to its limited evidential value and limited weight. It is characterised as a summary of allegations rather than evidence of the truth of those allegations. The reasons explain how the Tribunal weighed and utilised the evidence in the email, given the absence of the author as a witness at the Tribunal hearing.

12. The reconsideration application asks the Tribunal to remake its findings of fact. It is not necessary in the interests of justice to do so. If the Tribunal were to reconsider the judgment based on the grounds contained in the claimant’s application, it would require the Tribunal to unpick its findings of fact and re-make them. The application does not address a discrete point which is severable from the rest of the fact-finding process. It asks the Tribunal to consider its overall assessment of the witnesses and their credibility. If this were to be done, it is by no means likely that this would result in a change to the Tribunal’s decision and the outcome in this case.

Whilst the claimant argues that the grounds taken together show errors that are “mutually reinforcing and converge on a single outcome-determinative finding”, the Judge is not satisfied that this is correct. Even if all three grounds were accepted by the Tribunal as correct during a reconsideration hearing, this would not necessarily mean that the judgment in the case would be varied or revoked.

13. In light of the above, the Tribunal concludes that there is no reasonable prospect of the judgment being varied or revoked (rule 70(2) of the Employment Tribunal Rules of Procedure 2024) and so the application for reconsideration is refused.

Date: 30 April 2026

Approved by

Employment Judge Eeley

JUDGMENT SENT TO THE PARTIES ON

3 June 2026

FOR THE TRIBUNAL OFFICE