Employment Tribunal Rejects Disability Discrimination Case

OUTCOME: Dismissed

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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EMPLOYMENT TRIBUNALS

Claimant:

[redacted] [NAME_1]

v (1) [COMPANY_4] (in CVL)

(2) [NAME_5]

(3) [COMPANY_8] (in CVL)

(4) [NAME_9] at: London (South) (via CVP)

On: 23-27 June 2025

Before: Employment Judge Fredericks-Bowyer

Tribunal Member S Chacko

Tribunal Member M Foster-Norman

Appearances For the claimant:

[redacted] For the 1st to 3rd respondents: [redacted] For the 4th respondent:

[redacted]

JUDGMENT

1. The claims against the 1st to 3rd respondents as set out in case numbers 2302390/2021 and 2305186/2022 are dismissed upon their withdrawal.

2. The claims against the 3rd respondent as set out in case number 2302094/2022 are dismissed upon their withdrawal.

3. The remaining claims against the 4th respondent as set out in case number 2302094/2022 are not well-founded and are dismissed.

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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REASONS

Introduction

1. These written reasons are produced at the request of the 4th respondent following oral judgment being delivered at the hearing.

2. During the hearing, the claims against the 3rd respondent were withdrawn. These reasons therefore only relate to the claims against the 4th respondent. That was the only claim ultimately fully seen through contested to this point.

3. In the hearing, we did not consider the claims in full against the 1st and 2nd respondents because those respondents did not attend and there was little time to do so after the preliminary issues had been dealt with. Those claims were subsequently withdrawn prior to their determination.

4. As a result of the 4th respondent being the only respondent referred to in these reasons, he is from now on only referred to as ‘the respondent’.

5. The claimant and respondent represented themselves in the hearing, each giving sworn evidence. We also had access to a bundle of documents which ran to 2019 pages. All of our facts and conclusions in this judgment were unanimous.

Professional conduct of the claimant

6. During the hearing, an issue emerged where the claimant had disclosed and sought to rely on client material which she had produced or come into possession of during her regulated practice as a Registered Trademark Attorney. Those papers, voluminous in the bundle, referred to client advice, litigation and billing.

7. The papers were, on any view, confidential and privileged (with privilege belonging to those clients). The claimant did not have permission to remove them from the possession of the 1st and/or 3rd respondents, and did not have permission from the clients to use those papers in this litigation.

8. After some reflection, the claimant decided to withdraw the proceedings where those documents were overtly relied upon. After the hearing, the claimant also provided the Tribunal with evidence that she has reported her conduct to her regulator, the [NAME_11].

9. For completeness, and to demonstrate that none of that client material was required to be referred to in a judgment published to the public domain, I direct that a copy of this judgment is sent to [NAME_12].

The issues in this case

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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10. There were no list of issues at the outset of the hearing. Time was taken to create a list of issues. Only the issues which refer to this respondent are produced here. The claimant had withdrawn her failure to make reasonable adjustments claim in any event. The whistleblowing detriment claim is brought against the employer under s48 Employment Rights Act 1996, not against the respondent, so was not included in the issues we determined.

11. The Panel was satisfied that the list of issues referred to matters in the complaint. The claimant confirmed this was the extent of the issues she wished to be determined in respect of the respondent.

12. The issues with which we were concerned were:-

Treatment of the claimant

12.1. Were the Claimant requests to take accrued holiday of 31 December 2021, 9 February and 23 February 2022 refused by the Fourth Respondent in correspondence of 12 January 2022, 16 February 2022 and 16 March 2022, and did the Fourth Respondent refuse to provide an explanation or a proper explanation for these decisions, and were the holiday requests of other employees not refused without explanation?

12.2. Were the Claimant’s concerns about the letter of instruction to her Doctor repeatedly ignored and/or were her proposed amendments to the letter rejected without proper explanation by Fourth Respondent in correspondence of 21January 2022, 7, 11 and 16 February 2022, and 16 March 2022?

12.3. Did the Fourth Respondent repeatedly imply or state that the Claimant was unwilling to consent to a medical report being obtained when the Claimant had not refused to consent?

12.4. Did the Claimant request in an email of 29 January 2022 that she be reimbursed in respect of Practice Fees paid by her to [NAME_12], did the Fourth Respondent confirm to her in an email of 25 January 2022 that the First Respondent would meet her Practice Fees, but nevertheless was the Claimant not reimbursed (until much later on or around 10 February 2023) although the Claimant understands that the Practice Fees of the other trade mark attorneys employed by the Third Respondent were paid on 31 January 2022?

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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12.5. Having been contacted by HMRC regarding whether she had been paid less than the National Minimum Wage, did the Claimant raised the issue of minimum pay and whether there had been compliance in emails to the Fourth Respondent of 10 and 23 February 2022, and did she receive no substantive response regarding this issue?

12.6. In an email of 16 February 2022, did the Fourth Respondent question the Claimant’s entitlement to have previously received Statutory Sick Pay?

12.7. In an email of 25 February 2022, did the Fourth Respondent questioned the validity of the Statements of Fitness for Work provided by the Claimant’s doctors and forwarded to the First Respondent by the Claimant?

12.8. In the email of 25 February 2022, did the Fourth Respondent refer to “having called the surgery last week”, causing the Claimant concern that her doctors had been contacted without her authorisation?

12.9. In emails of 13 January 2023 and 15 February 2023, did the Fourth Respondent further delay paying the Claimant holiday pay due and owing?

Direct disability and sex discrimination

12.10. [NAME_13] comparators, was any or all of the treatment above because of disability and/or sex?

Discrimination for something arising from disability

12.11. Was any or all of the treatment above unfavourable treatment because of something arising from the claimant’s disability? The claimant says the ‘something arising’ was being on long term leave from work. The respondent does not plead the statutory defence that his actions, if unfavourable, were a proportionate means of achieving a legitimate aim.

Harassment

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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12.12. Was any or all of the treatment above unwanted conduct relating to the claimant’s disability and/or sex?

12.13. If so, did the conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

Victimisation

12.14. Was any of all of the treatment above a detriment as a result of doing protected acts by bringing claim numbers 2302390/2021, 2305186/2022 and 2302094/2022?

Relevant facts

Relevant background

13. The claimant is a Registered Trade Mark Attorney who, at the time to which this claim relates, worked at [COMPANY_8]. The claimant was ruled to have been disabled throughout the time to which the claim relates by EJ Hindmarch at a hearing on 13 May 2024. The respondent commenced employment with the [COMPANY_8] as a Finance Manager on 18 January 2021. He became a director of the company on 4 July 2021.

[COMPANY_8] finances and insolvency

14. The parties’ employer is now in liquidation.

15. By way of background, the claimant’s employment (together with the rest of the business) had once sat with [COMPANY_4]. That company entered into a Creditors Voluntary Arrangement on 27 March 2020, with the largest creditor being the Pension Protection Fund. That CVA defaulted on 4 January 2021, forcing the company to face its insolvent position. It entered administration on 6 July 2021, the date upon which the business transferred (together with the claimant’s employment) to [COMPANY_8].

16. It is a matter of public record that [COMPANY_8] entered creditors voluntary liquidation on 25 March 2024. At the time of the statement of affairs, it owed around £150,000 to HMRC, and around £100,000 to the [NAME_14]. In his evidence, the respondent mentioned dealing with HMRC debt around the time he was dealing with the claimant’s queries about holiday pay. We accept that [COMPANY_8] was in financial distress by early 2023.

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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Style of management of [COMPANY_8] and the respondent’s knowledge about matters he was not involved with

17. The claimant had a difficult relationship with [NAME_15], [NAME_16]’s managing director. The claims she brought against him, prior to withdrawal, involved arguments and intimidation. These matters led her to be off work sick. During that time, the claimant complained that she was required to work whilst off sick. She also had regulatory concerns, which she says she escalated, but was prevented from talking about. The arguments were triggered by her escalation.

18. These are the matters the claimant relied upon as protected acts, which we are not considering here, but are relevant background because the claimant’s description of [NAME_16]’s management style has similarities to the respondent’s explanations for why he did not know about matters that he otherwise might be expected to know about.

19. [NAME_17] did not share the claimant’s view that the management of [COMPANY_8] was aggressive or inappropriate, but he did agree with the claimant that the management was more ‘closed’ than would ordinarily be expected. His evidence was that he did what he was instructed to do to the best of his ability. He said that he was not privy to other matters which did not relate to the direct tasks he was responsible for carrying out. [NAME_17] accepted that he became a director from 7 July 2021, days after the claimant filed her first claim, but was unequivocal in his evidence that he did not see or read any of the claimant’s claim documents until preparation for this final hearing.

20. The claimant challenged the respondent about what he knew about the two discrimination claims she issued which did not name the respondent. He said he became aware that she had issued claims against [NAME_16] and [NAME_16]’s management, through a single conversation, but that he had no discussions about what they were about. He said, and we accept, that even when he was speaking to [NAME_16]’s advisers about the claimant’s various requests for leave and sickness absences, they did not talk to him about the claimant’s other claims. He said his conversations about the claimant within [NAME_16] were only about her holiday requests, and then later about trying to understand her welfare and prospects of returning to work. His simple position was that he did not know about the other discrimination claims because he did not need to know.

21. Although on its face a little unusual, we accept [NAME_17]’s evidence about this point. We accept and find that [NAME_16]’s management was ‘closed’ (in the respondent’s language) and ‘secretive’ (in the claimant’s language), which explains the unusuality in [NAME_17] not knowing about things we might ordinarily consider on the balance of probabilities that he would know about. This meant that the management dealt with matters that the claimant knew nothing about when she was working, and which [NAME_17] knew nothing about when he was working. [NAME_17]’s explanation about not knowing the claimant had brought Equality Act 2010, and only learning of the precise allegations when he read the bundle, struck us as honest and genuine. In the absence of any documentary evidence to the contrary, we believe him on the balance of probabilities.

22. We therefore conclude as a fact that [NAME_17] did not know that the claimant had done the things which she relies on as the first two protected acts.

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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Medical evidence requested from the claimant

23. The respondent became charged with dealing with the claimant’s absence from work in an administrative sense. His position within [NAME_16] was to manage aspects of administration such as absence and annual leave. We accept his evidence that he did not really consider himself a ‘senior’ person, although he became a statutory director. He said that his role was designed the way it was to ensure that [NAME_16]’s management could concentrate on strategy and fee earning rather than the operational administration of having staff. At one point, he remarked that he was paid probably half of the claimant’s salary. We accept all of that evidence, as it was not challenged and nothing was shown to us which was contradictory.

24. The claimant was away from work since January 2020 when the respondent took over dealing with her absences. She had been signed off work from 21 April 2020 to 26 May 2022 (pages 585 to 613). The claimant started a phased return to work on 5 May 2023. She was working 2.5 days per week at the point at which [NAME_16] entered administration. The claimant has been regarded as having Post-COVID Syndrome since June 2020. We were referred to a report from [NAME_18], a consultant in respiratory medicine, at pages 576 to 579. We accept that evidence, and note in particular that there was no known evidence from which to anticipate how long the claimant may have the condition for. In respect of work, all [NAME_18] could say was:-

“Based on our experience with Post-COVID Syndrome patients we are advising a phased return to work when she is ready, with her working less than a full day for a few days at first to manage fatigue. Working from home is also recommended, if possible, to reduce the time needed for commuting. The hours worked should be increased gradually based on symptoms and the effects of each increase evaluated before any further increases are made.”

25. The respondent was keen to understand the claimant’s absence and whether she could return to work. He says, and we accept, that this was a general keenness to ensure that work could be done when able, and so [NAME_16] could understand the likely length of the claimant’s absence. On 29 November 2021, the respondent sent the claimant an invite to a welfare meeting due to take place on 7 December 2021. The claimant replied to say she was not well enough to attend, and would advise if that changes (page 1640).

26. On 20 December 2021, the respondent sent the claimant a letter which attached a series of health questions which he asked her to answer. He advised her that [NAME_16] did not want to trouble her at this time, but that “some contact with your employer is reasonable” (page 1652). In the same letter, the respondent asked for consent to make contact with the claimant’s health professionals in order to understand more about her condition and, presumably, how it would affect her work.

27. The claimant replied on 7 January 2022 (page 1667). She agreed for [NAME_16] to obtain a medical report subject to her statutory rights and the company agreeing to pay for the report. She wished to see a copy before it was sent to the respondent and firm. She wished to see draft instructions before they were sent to the doctor,

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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and she said it would be premature for her to answer the questions from 20 December 2021 until a report had been obtained.

28. On 12 January 2022, the respondent sent a letter which enclosed the consent form and a list of intended questions for the claimant’s GP. The respondent reiterated that the health questionnaire was for the claimant to give her own views about her condition, and were for the purposes of setting up a welfare meeting. The questions were shown to us on page 1681. We find that they are standard questions which an employer will ask a medical professional about the condition of an employee, where the employer is trying to work out (1) the extend of the condition, (2) the extent of the effect of the condition, and (3) whether or not there is a reasonable prospect of the employee being able to return to work. We also find that those questions were reasonable and standard.

29. On 31 January 2022, the claimant sent the respondent an updated list of questions for her GP. In the covering e-mail she said she was happy to consent to the respondent obtaining a medical report. She told us in the hearing that she considered the questions the respondent sought to ask were inappropriate and requested too much detail. The claimant’s amended questions were shown to us at page 1714. In the questions, the claimant had narrowed the scope of the query to Long Covid only. She re-worded a question about potential longevity so that the opinion returned would not be asked to give a specific timeframe until a return to work might happen and, instead, the question was about the likely time of symptoms. She removed a question asking for an opinion about whether the claimant would be able to return to work in her role in the future.

30. On 4 February 2022, the respondent wrote to the claimant (page 1716). The letter said, relevantly:-

“We have reviewed your amendments to the draft letter of instruction to your doctor however, we feel that they omit or do not specifically ask for some crucial information that the company needs to understand when you might be able to return to work or any suitable adjustments that can be made to help you when you return. The questions originally sent are standard, they are also not unreasonable and they cover the specific information which would be helpful in a medical opinion.

In the circumstances, we would propose to use the original version of the letter when seeking the medical report from your doctor and request again for your permission to write to your Doctor / Specialist so that we can obtain a qualified medical opinion as to your current state of health and future capabilities…

In the event that you choose not to sign the medical consent form, we also ask again if you could complete the medical questions enclosed…”

31. The claimant responded on 8 February 2022 (page 1725). She did not agree that the information omitted was crucial and asked for more details about why the information was requested. She said she was not refusing to give consent to contact her GP about her medical conditions, and would do so “if the information sought is relevant to and probative of the matters which an employer is required to address

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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both in terms of the common law duties in respect of providing a safe place of work and associated obligations and the statutory obligations with regard to my disability.”

32. In our view, the claimant might not have realised the questions she took out are important for an employer in terms of trying to work out how long an absence might go on for, or whether someone can return at all. Alternatively, and equally likely, the claimant knew exactly that those questions were ones which may have yielded an answer which could have led the respondent to consider capability dismissal processes. Either way, we find as a fact that the claimant was seeking to remove information which the respondent needed to (1) get a holistic picture of the claimant’s state of health, and (2) understand the likelihood of the claimant returning to work (and when).

33. The respondent replied on 11 February 2022 (page 1137), writing, relevantly:-

“The information we find that is crucial, with regards to the GP medical report, is the information you have taken out of the original proposed letter…

As we do not agree with the proposed letter you suggested sending your GP and we have confirmed that we require more information from your proposed letter by reverting to the original letter, I now acknowledge we are at an impasse. Furthermore, you have also confirmed you are unable to complete the medical questions – as you feel this would be more appropriate after the medical report has been received.

You were unable to give us an update to your medical condition. You were invited on 7/12/21 to attend a welfare meeting, but you stated you were too unwell to attend. We then requested an update by way of correspondence sent initially on 20/12/21, which to date we have received nothing…

I will now accept that you do not want to consent or give any update of your medical status as I do not want to continue to ask…

I would like to add that any future decisions will be made based on the information we have to hand.”

34. On 14 February 2022, the claimant explained that her objection was to questions being put to the GP which might be legal rather than medical. In particular, the claimant said that she considered the impact of long Covid to be a legal question in respect of section 6 Equality Act 2010, rather than a medical one (page 1740). This e-mail, in our view, confused the respondent. We are satisfied from his evidence, and from his query to HR, that he interpreted that claimant’s objection as the claimant asserting that her absence was due to disability, and not due to medical sickness. As well as disagreeing with the claimant’s general view that the questions were not necessary, he wrote this on 16 February 2022 (page 1745):-

“I am slightly confused that you are suggesting that as in line with the Equality Act 2010, which I am familiar with, you are saying it is not a

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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medical issue? I am not sure how this cannot be linked, does this mean that we should not have been paying you SSP in line with the medical certificates we have received as you have been medically signed off work as you are not well?”

35. The claimant contends that the respondent is questioning the claimant’s entitlement to SSP with this wording above. This is one of the issues she says gives rise to her claims. In our view, and as a finding of fact, we consider the respondent is not questioning her entitlement to SSP. That is not the thrust of his message at all. As he writes plainly, he finds the claimant’s position about the medical information to be confusing. She says on the one hand she should be off sick with a longterm illness, but on the other that the GP’s opinion about the impact of that illness is not a medical issue because it is about disability.

36. Having heard her explain her position in the hearing, we understand the point she was trying to make is that a GP does not decide if someone is disabled. The way it is communicated in writing, though, is confusing. The respondent is trying to understand what the claimant is saying, and his question is him trying to test understanding and clarify what the claimant is saying. The respondent is not, we consider on the balance of probabilities, actually saying the claimant is not eligible for SSP. He is engaging in the debate to try to understand. Rather than have the respondent make decisions without any information, the claimant did consent to the respondent asking the questions it wished of her GP.

37. On 25 February 2022, the claimant sent a statement of fitness to work to the respondent. The statement confirmed she was unable to work. The respondent replied and asked for the statements to be signed by the doctor. He wrote (page 1749): “Having spoken with the surgery last week, they’ve confirmed these should be signed”. The claimant says, and we accept, that she was shocked by these words. She considered the respondent had carried out detrimental treatment, and that her sickness was being questioned. The respondent says he was not sure if the statements should have been signed but that, as they were being used to claim SSP, he needed to know they were properly complete. He spoke to the [NAME_20] directly because he did not wish to burden the claimant with the query. We accept that. We also note that, by this point, [NAME_16] had permission to contact the GP about the claimant’s medical state. It is not the case that the call was made ‘cold’ without any prior contact.

38. In terms of the overall impact of these events, the claimant sets out that she was very upset, and often disappointed, and that her symptoms worsened as a result of the stress throughout the period, including in relation to this medical evidence issue. Other than the ‘very upset’ and ‘disappointed’ wording, the claimant offered no evidence in the hearing that she felt in the way required to make out the harassment elements of her claim against the respondent. She gave no evidence to support that the effect of these actions was that her dignity was violated or that an environment was created which was intimidating, hostile, degrading, humiliating or offensive. We find no facts which support a contention which was not made.

Accrued holiday and taking it or being paid it

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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39. On 31 December 2021, the claimant wrote to [NAME_21] at [NAME_16] to remind him that it was agreed she could carry over 14 days of entitlement from 2020 into 2021, that she had 37.5 days due and owing, and so to take 27.5 days of holiday immediately (page 1662). [NAME_21] informed her that the respondent was the “approver of all our holidays and handles the holiday entitlements etc so I am passing your query to him” (page 1663).

40. The respondent was aware that the claimant was on sick leave at the time, being paid statutory sick pay. He says he was not sure how to deal with the interaction of sickness leave with holiday, and so he spoke to [COMPANY_8]’s external HR adviser from [NAME_23]. The e-mail exchange with that mentor were shown to us on pages 1664 to 1665. The respondent requested the mentor confirm whether (1) the claimant could use holiday when signed off sick, (2) whether the respondent had to pay for the holiday or whether it could be rolled over into the following year, and (3) whether the holiday can be taken immediately upon return to work from sickness.

41. The mentor replied on 5 January 2022, and answered that:-

41.1. It is possible to take annual leave as sick, which would be paid at full pay as a top up to SSP;

41.2. It is up to the respondent/firm to agree to the request, and it may be in the best interests of [NAME_16] to agree the request because there would then be less holiday to take later in the year;

41.3. It is permissible to refuse so long as the entitlement is carried over into the next year; and

41.4. There is no requirement to meet between sickness and leave, but it may be easier for the claimant to roll one into the other rather than come back for one day.

42. On 12 January 2022, the respondent wrote to the claimant about her medical questionnaire (covered above), and the holiday issue (page 1675). He responded to her query by writing:-

“Regarding your annual leave, I confirm that you carried over 37.5 days into 2022. We have allowed these days to be carried forward into 2022 due to your sickness and will show increased flexibility to allow you to use these days upon your return. We won’t be agreeing to any paid holidays at this time.”

43. The respondent was challenged about this response in his evidence. The claimant considers that the position was unreasonable, discriminatory, and not explained. The respondent sympathised with the claimant’s feelings, but explained that in his view the reasoning was within the letter, if brief. He pointed to the part about showing increased flexibility upon the claimant’s return to work. He noted that it was likely that the claimant would do a phased return, but that this could be ably supported by having additional holiday time to draw upon in order to have rest periods upon her return to work. The respondent considered that his response and position was advantageous to the claimant, because it facilitated a return on full pay (or more full

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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pay) with leave able to be taken flexibly without using sick leave or invoking and/or disapplying sickness absence procedures.

44. We accept the evidence from the respondent that this was his intention. It chimes with the written evidence and is not inconsistent with the decisions open to [NAME_16] about the claimant’s holiday usage alongside sickness. It follows that we do not accept the factual assertion of the claimant that “no explanation was given for the decision”. It is brief, but the explanation for the refusal was communicated in the 12 January 2022 letter. The claimant says that she was under financial pressure at the time, which was driving her request to be paid holiday for the period requested. It would be paid at full pay. We accept this evidence, but also find that the claimant did not communicate that reasoning to the respondent in her requests.

45. The claimant contacted the respondent about holiday again by e-mail on 9 February 2022 (page 1727). In that e-mail, she asked to be allowed to take the holiday requested. She did not explain any reasoning for the request, but noted that nobody else that she knew of had been refused permission to take holiday. She noted her concern that the decision to refuse the request “may have been influenced by the fact that I am presently off work with disability”. She ended by hoping “that this decision will not be informed by the fact of me being disabled”. In evidence, the respondent noted that nobody else was in the position of being on long term sick carrying sick leave across years as a result. We accept that evidence. The respondent agreed that the sickness of the claimant was the reason that the holiday had accrued, the reason why it had been requested, and the reason why the request was being refused (to maximise the chances of a sustainable and successful return to work). We accept that evidence, too, in light of the findings above.

46. We note that the respondent touched upon the holiday position, and intention for their use later, in the letter to the claimant of 16 February 2022 (page 1745) In it, he wrote:-

“Regarding your Annual Leave, we have been advised not to offer any paid holidays at this time. However, you will be given increased priority to use these holidays upon your return”.

47. The claimant argues in her witness statement that the above statement is misleading because it is not what [NAME_16] had been advised in the e-mail exchange of 4 and 5 February 2022. There is no claim orientated around this but, in the interests of avoiding controversy, we note that the respondent spoke to the HR adviser about the page 1745 communication and that the HR adviser contributed to the drafting. We consider that the HR adviser approved the wording, or at least did not consider that it was contradictory to the truth. We consider the e-mail from the HR Adviser on 5 January 2022 did not advise that [NAME_16] must offer paid holidays. It was open to the respondent and [NAME_16] to refuse, which is what had happened. In our view, no criticism should be levelled about the wording around holidays in the 16 February 2022 letter.

48. On 23 February 2022, the claimant asked again to be able to take holiday as requested and asked for an explanation (page 1748). The respondent replied on 14 March 2023 (page 1775):-

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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“In response to your holiday request, we have already confirmed out position and allowed for all unused days to be carried forward into 2022 due to your sickness and we will show increased flexibility to allow you to use these days upon your return.”

49. The claimant maintains that no explanation for the refusal was offered, even though we consider the reasoning is implicit from the communication. Indeed, there is an expressly referenced intention for the use of the holidays, designed (as we have found) to offer a best chance of a flexible and sustainable return to work. The claimant says the refusal was very upsetting. In her witness statement, she said that the refusals caused her “additional stress and during this period my symptoms worsened including my breathing, chest pain and fatigue”. We accept that the claimant had those symptoms under stress.

50. In terms of the overall impact of these events, the claimant sets out that she was very upset and that her symptoms worsened as a result of the stress throughout the period, including in relation to this holiday issue. Other than the ‘very upset’ wording, the claimant offered no evidence in the hearing that she felt in the way required to make out the harassment elements of her claim. She gave no evidence to support that the effect of these actions was that her dignity was violated or that an environment was created which was intimidating, hostile, degrading, humiliating or offensive. We find no facts which support a contention which was not made.

51. On 23 January 2023, the claimant discovered that the respondent had, at the time of refusing the claimant’s holiday requests, been encouraging other staff members to take their holiday on the basis that only five days were allowed to be carried over. The claimant says this is evidence that, as a fact, she was being treated less favourably than others.

52. The respondent explained this under cross examination. He said that the number of carry over days for those other than the claimant had been capped at five. No such cap had been applied to the claimant. He said this meant that, in order to avoid losing holiday days, other staff needed to take them. He said that [NAME_16] could support that leave, and had considered the operational impact before setting the cap and sending the e-mail. The respondent noted that the claimant was in a different position, on long term sick, and was treated favourably by having no cap. The respondent reiterated his position that carrying the days seemed to him to offer the best chance of a sustainable return to work. We accept his evidence about his intentions and the reason why there was this apparent difference in treatment.

53. On 29 December 2022, the claimant wrote to the respondent about her holiday entitlement (page 1832). She asked to be paid for the outstanding entitlement, seeing as she had been unable to take it over the course of the year. On 13 January 2023, the respondent replied by letter (page 1836). He advised [NAME_16] would commence payments to reduce the balance due. He wrote:

“Due to the amount accrued we would not be able to pay in one instalment, however we could agree a timescale for payments at your welfare meeting.”

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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54. In cross examination, the respondent was asked about why he was willing to pay the sums now, whereas the year before he would not authorise holiday. He explained that, as the year had gone by, he felt less sure the claimant would return to work soon. This meant the regard he had for the ‘soft landing’ was less significant, and he had become concerned about the amount of outstanding holiday which would need to be accommodated (if the claimant was to return), or paid for (if she did not). In terms of the suggestion of instalments, the respondent referenced the financial position of [NAME_16] and the fact that the value of the accrued but untaken holiday was now £28,065.48. We accept that evidence, and find on the balance of probabilities that he decided to pay the sums owing because it now made more sense than carrying holiday over. We also find that affordability was the only reason why the money was proposed to be paid in instalments.

55. The claimant requested fewer instalments than the respondent felt [NAME_16] could afford. The sums were paid over five instalments, with the final instalment being paid just prior to [NAME_16] falling into administration. In our view, the respondent ensured [NAME_16] paid the sums due to the claimant as quickly as it could afford to. Ultimately, [NAME_16] ran out of money anyway.

2022 and 2023 [NAME_12] practice fees

56. [COMPANY_8], and its predecessor company, paid the practice fees each year for the registered lawyers practicing in its employment. Practice fees were to be paid to both [NAME_12] (£215) and CITMA (£500). Those fees were due to be paid before the end of January in each calendar year. The claimant was off sick for the period leading up to 31 January 2022. She was keen to ensure that her practice fees would be paid on time. On 12 January 2022, she sent an e-mail to the respondent to ask that the fees be paid on her behalf before the deadline expired (page 1671).

57. The claimant received no reply to the e-mail, but the respondent did arrange for the CITMA fees to be paid before the claimant chased again on 25 January 2022 (page 1704). In the 25 January 2022 e-mail, the claimant noted that the deadline was 31 January 2022 and that she would be grateful if the respondent would confirm [NAME_16] would either (1) pay the fee, or (2) reimburse her if she paid it (as she said had happened in the past).

58. The respondent replied to both e-mails in the chain at 16:33 on 28 January 2022 (page 1707). He assured her: “I will be making payment for everyone’s [NAME_12] practice fees on Monday, including yours”. The respondent says, and we accept, that he was intending to pay the claimant’s fees on Monday (the last day). He says, and we accept, that he did pay renewal fees for all other fee earners for whom a fee was required.

59. The respondent did not ultimately pay the fee on behalf of the claimant, because she did so herself on the morning of 28 January 2022, the working day prior to the deadline (page 1708). She asked to be reimbursed that sum. There was no response to that request, and it is clear that the fee was not reimbursed by the time the claimant chased for the next year’s fee to be paid on 24 January 2023 (page 1837). The deadline for the fee to be paid was 31 January 2023.

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60. On 30 January 2023, in the absence of a response, the claimant paid the fee and e- mailed the respondent. She acknowledged she had paid the fee the day before the deadline. She also wrote:-

“I understand that I have still not been reimbursed in respect of my [NAME_12] practice fees for 2022 (£215) despite several requests…”

61. On 3 February 2023, the respondent made payment through [NAME_16]’s account to the claimant for both practice years. He confirmed that payment on 10 February 2023 (page 1865), and wrote:-

“We have now refunded you on the 3/2/23, apologies for my oversight last year. All practice fees have always been paid on time to [NAME_12], but we are happy to reimburse you if you prefer to pay early”.

62. The claimant was asked about her practice of paying the fee and then asking for reimbursement. She accepted that she would have been part of the bulk renewal process on 31 January, but said that she had not had the confirmation she wished about that. She accepted that she had paid the fee ahead of the deadline in both years. She accepted that the respondent would have ensured payment of the fee if she had waited until the deadline for the fee to have been paid. Aside from a general anxiety about the fee not being paid or being late, the claimant did not give any evidence about anything which might have given her the impression the fee would actively not be paid.

63. The respondent was asked about his lack of response to the claimant about the fees in each year, and about his ‘oversight’ between 28 January 2022 and 3 February 2023.

64. The respondent was asked about the oversight from the 2022 class year and it was put to him the claimant was out of pocket because of her disability and absence. He explained that the claimant was on his list for renewals on 31 January each year. He said it was a separate and manual process undertaken upon being told that she had already paid them. He could not explain his oversight which meant the fees were not paid for a year, but he apologised for it. He could not recall the claimant chasing for payment of the fees between January 2022 and January 2023, and he confessed the reimbursement slipped his mind until he saw the reminder and then paid for both years in one go.

65. We need to consider the factual cause of the delay to the claimant’s fees being paid. In our view, the root cause is the claimant’s unusual practice of paying the fees herself and then asking for a reimbursement. We are satisfied from the respondent’s evidence that that was not [NAME_16]’s normal practice. Everyone else (including the claimant) would be included on the renewal run on 31 January of each year. If the claimant had the patience to wait and follow usual practice, this issue would not have arisen. Consequently, we find that the claimant’s impatience and unexplained belief that the payment should be made before the last possible date served to remove herself from [NAME_16]’s normal process. In our view, given the root cause, we consider this issue would have arisen regardless of whether the claimant was in work or off work.

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66. We accept the respondent’s evidence that the delay in the 2022 payment was because of a simple oversight. This was his very plain evidence, noting that he had no reason to delay payment. We consider that the parties were involved in detailed correspondence about elements of the claimant’s pay and health, including the medical questionnaire and annual leave matters set out above. In none of those correspondence chains does the claimant chase the £215 payment. Indeed, we consider that the claimant herself was unsure if it was owing in January 2023, and this is reflected by her tentative words “I understand that I still have not…”. Despite the claimant indicating that she had chased the respondent for the fees several times between January 2022 and January 2023, we have seen no correspondence showing that. In our view, on the balance of probabilities, the claimant did not chase the respondent, and so his oversight remained in place until he finally was reminded (we find for the first time) on 25 January 2023.

67. The claimant describes this issue as ‘detrimental treatment’. There were no facts asserted which indicated that the claimant considered this to be a harassment issue despite the issues listing it that way. We make no findings about the effect of the [NAME_12] fees issue on the claimant.

HMRC

68. On 10 February 2022, the claimant emailed the respondent to note that she had been contacted with HMRC with a query about whether she had been paid less than the minimum wage. She wished the respondent to tell her if she should not for any reason speak to HMRC about it. The respondent did not reply. In cross examination, the respondent said the claimant had been paid properly at all times and that any issue with her tax was her business to explore with HMRC.

Relevant law

Direct discrimination

69. Section 4 Equality Act 2010 lists protected characteristics for the purposes of that Act. Disability is listed as a protected characteristic. The protected that the claimant identifies as holding are within the list at section 4, and is therefore a protected characteristics which the claimant has.

70. Section 13(1) Equality Act 2010 provides:-

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

71. This means that the claimant would have suffered from direct discrimination if we find that, in relation to each allegation, she was treated less favourably than someone who was not disabled.

72. The claimant must establish that she was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’ ([NAME_24] of West Yorkshire Police v Khan [2001] ICR 1065 HL). The person(s) with whom the

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comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010). The [NAME_25] should, other than in respect of the protected characteristic, “be a [NAME_25] in the same position in all material respects as the victim” ([NAME_26] v [NAME_24] of the Royal Ulster Constabulary [2003] ICR 337 HL). If there is no such [NAME_25] in reality, then the Tribunal should define and consider how a [NAME_27] would have been treated if in the same position as the claimant save for the fact that they would not have the protected characteristic relied upon ([NAME_28] v [NAME_29] for Nursing, Midwifery and Health Visiting [2002] ICR 646, CA).

73. The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill [2021] ICR 1 EAT, Mr Justice Linden said, in respect of determining ‘because of’:-

“It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. In need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.”

74. It is a defence for a respondent to show that it had no knowledge of the protected characteristic relied upon, on the basis that the protected characteristic it did not know about could not have caused the treatment complained of ([NAME_30] v Department for Constitutional Affairs [2008] IRLR 29 EAT). However, this defence does not apply where the act itself is inherently discriminatory (such as differentiation on the grounds of a protected characteristic), and in such cases whatever is in the mind of the alleged perpetrator of the discrimination will be irrelevant ([NAME_64] v [NAME_32] [209] ICR 1450 EAT).

75. Under section 136(2) Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc [2007] IRLR 246).

76. Once the burden has shifted, if it does, the respondent must to show that the treatment was ‘in no sense whatsoever’ due to the protected characteristic (Igen Ltd v Wong [2005] IRLR 258). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the ‘why’ the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory ([NAME_24] of West Yorkshire Police v Kahn [2001] UKHL 48. It is almost always the case that the Tribunal needs to discover what was in the mind of the alleged discriminator (The Law Society v Bahl [2003] IRLR 640).

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Discrimination arising from disability

77. Section 15 Equality Act 2010 provides:-

“(1) A person (A) discriminates against a disabled person (b) if –

(a) A treats B unfavourable 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.”

78. It is generally easy to identify whether or not treatment is ‘unfavourable’. It is treatment which can also be categorised as a disadvantage or detriment – ie. something negative. Unfavourable treatment cannot be something which could be seen as ‘advantageous’ even where the treatment is something that is not wanted by the employee ([NAME_33] v [NAME_34] of Swansea University Pension and Assurance Sceme and anor [2019] ICR 230, SC. [NAME_33] concerns the recalculation of an enhanced pension entitlement. The enhancement was reduced when the employee went part time as a result of his disability. The Supreme Court decided that, regardless, the award of a pension is a benefit with a positive purpose. Being awarded the pension could not be seen as unfavourable treatment.

79. When considering such a claim, the Tribunal should identify (1) whether there was unfavourable treatment and by whom, (2) what caused that unfavourable treatment (was it the ‘something’, including where that cause is a more than trivial reason if there is more than one cause), and (3) did that something arise in consequence of the disability (Pnaiser v NHS England and Anor [2016] IRLR 170 EAT). Whether or not something is ‘unfavourable’ is a question of fact in all the circumstances, regardless of how a claimant perceives that treatment.

80. The question of whether the ‘something’ arises in consequence of disability only requires a loose factual connection, to be assessed on each case, which reflects the looseness of the language used.

Harassment related to disability

81. Section 26 Equality Act 2010 provides:-

“(1) A person (A) harasses another (b) if –

(a) A engages with unwanted conduct related to a protected characteristic, and

(b) The conduct has the purpose or effect of –

(i) Violating B’s dignity, or

(ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

….

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(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account –

(a) The perception of B;

(b) The other circumstances of the case; and

(c) Whether it is reasonable for the conduct to have that effect.”

82. ‘Disability’ is a protected characteristic because it appears in the list of protected characteristics at section 4 Equality Act 2010.

83. Under section 136(2) Equality Act 2010, the claimant needs to show on the balance of probabilities that there are facts from which the Tribunal can decide that harassment related to disability has occurred. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). This means that the claimant will need to show more than simply she was disabled at the time any unwanted conduct occurs (Private Medicine Intermediaries Ltd v Hodkinson EAT 134/15.

84. Harassment claims must be determined by considering evidence in the round, looking at the overall picture. Although the knowledge and perception of the characteristic on the part of the alleged perpetrator is relevant, it is not necessarily determinative (Hartley v Foreign and Commonwealth Office Services [2016] ICR D17). This means that the determination of the words ‘related to’ is a finding the Tribunal should make drawing on all of the evidence before it to account of the possibility, for example, that the alleged perpetrator may be displaying a sub- conscious bias which affects the recipient even if they do not know of the protected characteristic (Tees Esk and Wear Valleys NHS Foundation Trust v [NAME_35] and another [2020] IRLR 495 EAT).

85. It is important to emphasise that the words outlined by statute are not diluted to the extent that a claimant does not need to evidence more than ‘upset’ to prove a harassment claim. The Tribunal is “an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” (per Lord Justice Elias in Land Registry v Grant [2011] EWCA Civ 769). The wording of the statutory test remains paramount.

Victimisation

86. Section 27 Equality Act 2010 says, relevantly –

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

(a) B does a protected act, or

(b) A believes that B has done, or may do, a protected act.

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(2) Each of the following is a protected act—

(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(c) doing any other thing for the purposes of or in connection with this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.”

87. A detriment will be considered so where a reasonable employee would in all the same circumstances consider that they had suffered a detriment ([NAME_36] v [NAME_24] of Northamptonshire Police [2022] EAT 42). A detriment will be held to have been done because of the protected act where the Tribunal considers the detriment to have been done materially (ie. more than trivially) because of the protected act (Fecitt v NHS Manchester [2012] ICR 372).

Time limits

88. Section 123(1) Equality Act 2010 provides that claims for discrimination (of which failure reasonable adjustments is one) and victimisation should be brought within three months of the act being complained of. Time can be extended to take account of a period in ACAS early conciliation where, if ACAS notification occurred within three months, the days spent in early conciliation will ‘stop the clock’. Events occurring more than three months before the claim is issued may be brought as claims in time if they form part of a course of related discriminatory conduct, the last one of which is in time when the claim is brought.

89. If, despite all of the above, a claim is still brought outside of the three month time limit, the Tribunal can extend time if it considers that it is just and equitable to do so. This is a broad discretion which requires the Tribunal to balance all of the circumstances of the case including the length and reason for the delay, the prospects of the claim brought out of time, and any other factor which appears relevant. The Tribunal should weigh those factors to determine the prejudice to each party in extending or not extending time, and then make a decision (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640). Time will almost always not be extended where time limits are being considered at a final hearing and the Tribunal has determined that those late claims are not well founded and would be dismissed. In those cases, it would be pointless to extend time anyway.

Conclusions

Direct disability discrimination

90. We group all of the allegations under this head of claim together because they all fall foul of a common issue with direct disability claims where, like here, there is no identified [NAME_25]. The claimant relies on a [NAME_27]. We must first consider who that [NAME_27] should be. [NAME_28], that person would be in all the same circumstances as the claimant but without the

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claimant’s protected characteristic. That can pose a difficulty for disabled claimants because, as is the case here, the claimant’s [NAME_27] is:-

90.1. a woman of her age and length of service,

90.2. whom had been out of work for the same period of time with a health condition, but

90.3. a health condition which did not meet the definition of section 6 Equality Act 2010.

91. What this means is that, at each step, we must consider whether the respondent would act the same (as he contends with his denial of discrimination), or if he would have treated the non-disabled character in a somehow more favourable way. It is for the claimant to show us that there are facts from which we could properly conclude that she was treated less favourably than a [NAME_27] would have been.

92. Throughout the evidence and arguments, the claimant put to the respondent and submitted that he had treated her ‘differently’ because of her disability. This was particularly the case in respect of the annual leave issues and the [NAME_12] fee issue. Unfortunately, that is not the correct argument or challenge. The respondent accepted he treated the claimant differently. As he explained, he had done so because she was in a manifestly different position to anyone else and she required (indeed, the law required) different treatment to reflect that. The question is about less favourable treatment.

93. In our judgment, no evidence was presented which indicated that any of the respondent’s actions could properly be considered as less favourable treatment because of disability. We have no evidence, and not really any argument, that he treated the claimant worse than he would have treated her if she were in the same circumstances but not disabled. Indeed, in our view, it is compelling evidence the other way that the respondent did not consider whether the claimant was disabled in his own mind (we accept) at least until he received the occupational health report a significant way through the dispute. Thereafter, there is still no evidence there would have been any difference in treatment between the claimant and her [NAME_27].

94. It follows that, where we can identify no difference in treatment, or no potential difference in treatment, between the claimant and a [NAME_27], there can be no less favourable treatment visited upon the claimant. Where there is no less favourable treatment, there is no direct discrimination.

95. Consequently, for reasons that expose again the pitfall inherent in this sort of claim without a named [NAME_25], this part of the claim is not well founded and is dismissed.

Harassment related to disability

96. It is plain that all of the complaints from the claimant against the respondent revolve around his unwanted conduct. We are satisfied that all of that unwanted conduct was

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related in some way to the claimant’s disability. They were in the position they were because of the cliamant’s illness.

97. We have found no facts which support any argument that the respondent’s actions were done with the purpose of harassing the claimant in the way required by the definition at s27. We have also found no facts that any of those matters had the effect on the claimant which is required by the definition at s27.

98. Other elements of the claim against other respondents appeared to us to more naturally fit a harassment claim. The claimant herself does not contend that these matters had the effect required. At best, the claimant complains of ‘upset’ and ‘very upset’ or ‘disappointment’. In our judgment, this is not the sort of effect which is required to make out a harassment claim. We note from Grant that the statutory wording is paramount. We do not consider the effect on the claimant to be in the category of ‘minor upset’, as is quoted from Elias LJ, but the principle is the same. ‘Upset’ is not enough to make out the statutory definition.

99. This element of the claim is not well-founded and it is dismissed.

Discrimination because of something arising from disability

100. We take each of the issues in turn in this section of the judgment, because there is no blanket response to them in the way there is with the other claims above and below. We take the issue numbering as is set out at paragraph 12 at the start of this judgment.

101. Issue 1

101.1. We found as a fact that the respondent refused permission for the claimant to take annual leave because, in his view, it was more beneficial and sustainable for the parties to use that annual leave flexibly upon the claimant’s return to work. We found as a fact that the respondent’s intention was to use the leave in this way to benefit the claimant. We also found as a fact that the claimant did not explain to the claimant that she was under any financial pressure as a result of not taking annual leave. As a matter of law, the question about what the respondent was advising other colleagues to do is not relevant for this head of claim. When the respondent considered that his reason for carrying over the leave might be frustrated (because there was no sign of the claimant returning), he authorised the payment of the leave instead.

101.2. We must ask ourselves, first, whether this was ‘unfavourable treatment’. The claimant submits that a refusal to allow her to take holiday when she wished was unfavourable treatment, a proposition advanced on an understanding that someone should be able to take leave when they wish, and that nobody at [NAME_16] was ever denied leave. The respondent’s submission mirrored what he set out in his evidence.

101.3. In our view, there are two problems with the claimant’s submissions. First, there is no general right in employment law to take annual leave when an employee wishes. It is good employment relations practice to adhere to requests, but that is not a right. Indeed, it is the employer who has the ability to

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direct an employee when they should take leave (although we accept that is rarely a practice adopted in professional services). Any refusal cannot be discriminatory. The purpose or reason for the refusal is what matters.

101.4. We have accepted the respondent’s evidence that he was motivated by a desire to create the softest and most supportive landing possible for the claimant upon her return to work. For this reason, she was allowed to accrue so much carried holiday. For this reason, he did not wish to authorise holidays when she proposed to take a large swathe of days in one go. In the circumstances, where the claimant is off work long term with an illness which is characterised by fatigue and a shortening of days, we do not consider that it is unfavourable treatment for the respondent to seek to carry over annual leave for the claimant to deploy flexibly to assist with a sustainable return. Any measure which can be used to increase the prospects of a re-integration into the workplace with long-term success is, in our view, a feature of favourable treatment.

101.5. Where there is no unfavourable treatment, there can be no successful section 15 Equality Act 2010 claim. This part of the claim is not well founded an is dismissed.

102. Issue 2

102.1. We found as fact that the respondent was asking standard and reasonable questions to try to confirm whether the claimant can return to her role, and when. There was a disagreement with the claimant about whether those questions were necessary. The claimant wished to remove questions which, in our view, might have yielded answers to the effect that a return in the medium term may not be possible, which could go on to justify capability procedures. The respondent did not yield to those requests, and the respondent’s questions prevailed.

102.2. We ask ourselves whether the conduct of the respondent can properly be categorised as ‘unfavourable’ treatment. In our judgment, it cannot. To provide the most appropriate response in respect of the claimant’s employment, and to ultimately decide on the terms upon which it could offer safe employment, the respondent needed as much medical information relevant to its consideration as possible. That meant it needed to understand the claimant’s overall health picture. It needed to know when the claimant could return, and it needed a proper assessment on whether that return was likely. Given the damage the claimant says the whole process had on her, we do not consider it to be ‘unfavourable’ for the respondent to seek to understand if that effect was necessary. If the claimant could not return, there comes a point when it is in everyone’s interest to face that and move on.

102.3. In any case, here, the claimant did return to work. Nothing the respondent was told in answer to the questions led to any sort of negative outcome for the claimant’s employment. This is because, we consider, the questions were not included to find a reason to begin capability processes. The respondent genuinely wished to understand the whole position so he could respond accordingly.

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102.4. In those circumstances, where all worked out (until insolvency), we do not consider that an insistence on asking appropriate and necessary questions can properly be considered ‘unfavourable’ treatment. This part of the claim is dismissed.

103. Issue 3

103.1. It is a fact that the claimant did not blanket refuse to provide consent for the medical report to be obtained from the GP or other specialist. It is also a fact that the consent that was given was caveated in scope. The claimant did not agree to the questions (as is explored in the issue above). This means the claimant did, in fact, for some time refuse to give the consent that the respondent and [NAME_16] were seeking. This is what the respondent is referring to when he said that the claimant was not signing the consent form for the medical practitioner to be contacted by [NAME_16]. In those circumstances, the respondent did not lie about the situation or mislead about it in any way. His responses were, in our judgment, an accurate summary of the situation.

103.2. Consequently, although the claimant did not agree and did not like what he said, the respondent was being honest and accurate in his responses. That is not unfavourable treatment. This part of the claim is dismissed.

104. Issue 4

104.1. The treatment complained of here is an oversight in respect of paying the 2022 [NAME_12] fee of £215. First, we must decide if that treatment is unfavourable. On balance, we consider that it was not unfavourable, although we can see why it might be considered that it would be. The claimant brings a complaint about the issue now, and sets it out strongly in the claim and her witness statement. However, it is apparent from the contemporaneous documents that the claimant requests payment and then does not chase it again. Indeed, we found as a fact that the claimant did not chase the issue until the following year, and then did so tentatively because, we consider, she was not certain if she had been paid it or not. In those circumstances, we consider that the claimant did not actually consider the non-payment of the fee to be as big or as significant an issue as her hearing documents suggest. It does not appear from the contemporaneous documents that the claimant is unhappy about being in the position she was in. It does not therefore strike us as unfavourable treatment where it was also, as we have found, and accidental oversight.

104.2. Looking at it another way, if we are wrong on unfavourable treatment, then we do not consider that the issue was caused by something arising from the claimant’s disability. We found that it was the claimant’s practice, our of keenness, to pay the fees herself before the last possible day. The respondent and [NAME_16]’s practice was to pay on the final day. Each has their own reasons for doing it, but we found as a fact that the situation would have emerged where the claimant paid her own fees and asked for reimbursement regardless of whether she was in work or out of work. In that way, we do not consider there was any treatment because of ‘something arising’ either.

104.3. This part of the claim is dismissed.

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105. Issue 5

105.1. The claimant raised a query in respect of HMRC and asked to be contacted if the respondent considered she should not talk to HMRC about it. The respondent, we found, did not wish to stop the claimant talking to HMRC about her own tax. He did not, therefore, contact the claimant about the issue. We do not see how this could be construed as unfavourable treatment on the plain reading of the claimant’s e-mail. This part of the claim is dismissed.

106. Issue 6

106.1. We found as a fact that the respondent was not questioning SSP entitlement. He was questioning what the claimant was saying, and the implications of that, because the claimant had confused him. This is very obviously a permissible way to discuss and resolve disputes and it would be absurd, in our view, for an expression of confusion and request for clarification to be construed as ‘unfavourable treatment’. This part of the claim is dismissed.

107. Issue 7

107.1. In the email of 25 February 2022, the respondent asked for the statements of fitness to work from the claimant to be signed. He understood this to be a requirement. He wished to ensure that the statements were fully compliant for the SSP applications [NAME_16] was making. He was not, in our judgment, questioning their validity in the sense that there was something nefarious occurring. An employer must be allowed to check whether statements and documents are properly compliant without being construed or accused of making some general statement that the employee is doing something incorrect or invalid. The claimant’s interpretation with this issue is not justified. The respondent’s wish to ensure compliance, and so trying to ensure compliance, is not unfavourable treatment done to the claimant. This part of the claim is dismissed.

108. Issue 8

108.1. We found as a fact that the respondent was justified in the circumstances in contacting the claimant’s GP for clarification about whether the fit notes should be signed. Ultimately, if they were supposed to be signed, then the surgery is the entity to correct the error. The real mischief the claimant wishes to unpick her is her own concern and interpretation that the respondent had contacted her GP without authorisation. Her interpretation does not make treatment unfavourable. It is an objective test in all the circumstances. Where the respondent wanted to ensure SSP compliance to keep SSP being paid, and contacted the surgery to try to avoid distressing the claimant with the issue, we do not consider his actions could amount to unfavourable treatment. This part of the claim is dismissed.

109. Issue 9

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109.1. We found as a fact that [NAME_16] was in financial distress when the holiday payments were made to the claimant. The claimant has established no entitlement to be instantly paid the annual leave carried over. In circumstances where she was paid outstanding annual leave in full prior to the insolvency occurring, we do not consider this to be an example of unfavourable treatment. Our response would plainly be different if there was an amount outstanding because the insolvency occurred before the instalments were finished, but that did not happen.

109.2. This part of the claim is dismissed.

Discrimination and harassment because of or in relation to ‘sex’

110. The claimant is a woman, and she brings claims of less favourable treatment because she is a woman, and claims in respect of matters about which, we assume, she felt harassed because of something related to her being a woman.

111. The claimant advanced no evidence in chief that any of the things she complains about with the respondent were done to her because she is a woman. She advanced no evidence that any of the things done made her feel harassed because they relate to her being a woman, either. When cross examining the respondent, the claimant did not challenge him about sex discrimination or sex related harassment. His denials stood, and so we have found no facts that he was motivated by the claimant’s sex, or did anything to her related to the fact that she is a woman.

112. In those circumstances, it is obvious that the claimant has not provided the ‘something more’ required by [NAME_37] to establish facts from which we could properly conclude that the conduct complained of was discriminatory or harassment because of or related to her sex. This means the direct sex discrimination and sex related harassment claims against the respondent fail and they are dismissed.

113. We remark that absolutely nothing about the respondent’s conduct or motivations appeared to us to have had anything at all to do with the fact the claimant was a woman. This judgment is complete exoneration of [NAME_17]’s conduct in this regard.

Victimisation

114. The claimant pleads that the bringing of her three claims were protected acts. Each of those claims are protected acts because they institute proceedings under Equality Act 2010. The nuance here is which of those claims can give rise to detrimental treatment. Plainly, the detriments pleaded in this remaining claim cannot have arisen because of the bringing of this claim. Even though amended very minorly in July 2023, that amendment added no detriments which post-dated the issuing of this claim. This means that the only detriments which might be as a result of victimisation would be those flowing from the lodging of the first two claims.

115. In our judgment, this is an important detail, because we found as a fact that [NAME_17] although [NAME_17] knew that the claimant had issued Employment Tribunal for something, he did not know that it was in respect of discrimination. That finding was based on agreed features between the parties that important aspects of

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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the running of [NAME_16] were kept away from those who did not know about them. Consequentially, we found as fact that [NAME_17] did not know that the claimant had issued proceedings under Equality Act 2010.

116. This means that, first, the claimant has not established facts from which we could properly conclude there had been victimisation. Second, in any case, we have no hesitation in concluding that the protected acts had nothing to do with the respondent’s conduct where the respondent did not realise the claimant had done protected acts until these proceedings were well underway and long after the events in question.

117. This claim is not well founded and it is dismissed.

Time limits

118. None of the claims have succeeded. To the extent any of the allegations were out of time, there is no continuing act to establish jurisdiction. Where the claims are not well founded, and particularly where none of the allegations came close to being made out in our deliberations, we do not consider it would be just and equitable to extend time anyway. The claimant has benefitted from her case being examined without time being extended. We see no benefit to the claimant in extending time. There are no reasons to extend time which are in the respondent’s favour. We consider the natural time limit should prevail. The out of time allegations would also be dismissed for want of jurisdiction.

Final remarks and disposal

119. We appreciate this case was a hard step for the claimant to bring. The claimant is unwell, and was stressed and at times upset in the hearing. Although we made accommodations, we are grateful for the claimant for putting her case in a straightforward way with evidence in chief that was well referenced to the bundle of documents.

120. We also have significant sympathy for the respondent. We are satisfied that [NAME_17] was simply doing his job to the best of his ability in difficult circumstances. Because of relationship breakdown of those around him, which he himself did nothing to trigger, he has had to face very serious and impactful allegations, proceedings against him personally, with exposure to personal liability if the hearing did not go his way. We understand that the mere fact these proceedings were hanging over him may have had a serious and detrimental impact on his profession and his career. They are likely also to have had personal impact.

121. The claimant was entitled to bring proceedings against the respondent personally because he made decisions and communicated against them which she considered were discriminatory. In this case, because the respondent alone was left answering the claims, that left [NAME_17] exposed. He considered and argued there was no evidence at all that he had discriminated against the claimant. As it transpired, the only evidence was suspicion constructed through gaps in knowledge or understanding. Once the respondent’s explanations were taken into account, the position was clear. However, there was enough room for doubt for the claim to have

Case Number: 2302390/2021; 2305186/2022; 2302094/2022

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been brought. We do not consider the claim was ill brought or ill run. We hope this judgment is an end to the matter.

122. In light of the findings we make above, and the general conclusion we make that [NAME_17] was simply doing his job, we also hope these written reasons serve as complete exoneration of [NAME_17]’s conduct. This is a public document which he may refer to if needed in case he is ever asked questions about this case and the cause of it.

123. The case is dismissed.

Approved by Employment Judge Fredericks-Bowyer

18 December 2025

Case No: 2302390/2021, 2305186/2021, 2302394/2022

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

2. [NAME_5]

3. [COMPANY_8]

4. [NAME_9] at: London South

On: 26th January 2024

Before: Employment Judge Reed

Representation For the claimant: [redacted] Fort the 1st respondent: [redacted] For the 2nd respondent: [redacted] For [NAME_43]: [NAME_45], Counsel

RESERVED JUDGMENT

[NAME_47] are ordered to pay a contribution to the claimant’s costs in the sum of £3,000 on a joint and severable basis.

REASONS

Background

1. [NAME_48] brings complaints of disability discrimination, sex discrimination, victimisation, payments due and protected interest disclosure detriment against the above respondents.

2. The claims were the subject of a case management hearing on 8th June 2023. At that hearing Employment Judge Rice-Birchall consolidated the three claims set out above and made appropriate case management orders.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

3. These orders included listing a one-day preliminary hearing to consider a) whether there had been a TUPE transfer between the [NAME_49] and b) the claimant’s disability status.

Procedure, documents and evidence

4. I was provided with a bundle of 267 pages, prepared by the claimant. References to page numbers within these reasons are to that bundle unless otherwise indicated.

5. [NAME_50] provided written submissions in advance of the hearing, which also set out the claimant’s application for costs

6. This hearing has not involved any witness evidence.

Law

7. To put the Employment Tribunal’s costs powers in context it is useful to compare them to the rules applicable in most civil litigation where costs follow the event. Where costs follow the event, the successful party will generally recover their costs from the unsuccessful party. This means that awards of costs are routine.

8. Costs do not follow the event in the Employment Tribunal and are the exception. In the vast majority of cases parties bear their own costs. This reflects the nature of the Tribunal, which was designed to operate as a cost- free and user-friendly jurisdiction (see Lord Justice Sedley in Gee v Shell UK Ltd [2003] IRLR 82).

9. The current Employment Tribunal Rules provide for costs at rule 74 – 84. Rule 76 sets out the limited circumstances in which an award can be made. The material part of the rules for this application is as follows:

76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

10. Costs in the Employment Tribunal involve a three stage consideration. First, has the statutory threshold to award costs set out in rule 76 been met, i.e. does the Tribunal have power to award costs? Second, if there is power to award costs, should that discretion be exercised? Third, what amount of costs should be awarded.

11. The purpose of any award of costs must be to compensate the party in whose favour it is made. A costs order must not be made in order to punish the paying party, either for their conduct in the litigation or anything arising from the underlying claim (see [NAME_51] v [NAME_52] (Publishers) [COMPANY_61] [1985] IRLR 97.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

12. I also accept the submission made by [NAME_47] that, equally, a costs order must not be made to benefit the receiving party because they are deserving, vulnerable or otherwise in difficulty. It would be an error, for example, to take into account the possibility that a party was impecunious or might have difficulty in continuing to pay for representation when considering a cost order. The purpose of a costs order can only be to provide compensation to the party who may receive it.

13. Rule 84 provides that, when considering whether to make a costs order and in what amount, the Tribunal may have regard to the potentially paying party’s ability to pay.

14. The threshold tests set out by rule 76 remain the same whether or not a party is represented. At the same time, whether a party is represented may be important context to both the threshold test and the exercise of discretion. A tribunal ‘cannot and should not judge a litigant in person by the standards of a professional representative’ (see AQ Ltd v Holden [2012] IRLR 648). It follows that the converse is also true: a professional representative should not be judged by the standards of a litigant in person. At the same time, professional representatives are not expected to be paragons without flaw. There is an important distinction between behaviour which, carefully analysed later, falls short of the ideal and behaviour which is unreasonable.

Application for costs

15. The application for costs is set out at ¶21(a)-(p) of [NAME_50]’s skeleton argument. [NAME_50] elaborated on his application orally.

16. In summary, the application for costs argues that [NAME_43]’s behaviour has been unreasonable in two regards:

a. That [NAME_43]’s concession on the TUPE issue had been unreasonably delayed. b. That [NAME_43]’s letter of the 18th January 2024, seeking to relist the one-day hearing intended to deal with the claimant’s disability status was unreasonable.

TUPE

17. I will deal briefly with the points arising from the TUPE point. It appears to me that this has been conceded by [NAME_47] rather later than it might have been, given the documentation and advice available to them. The Sales Agreement I have been provided, which was signed by the 4th respondent, on behalf of the 3rd respondent, is explicit that the agreement would constitute a TUPE transfer and liability in respect of the previous employer would transfer.

18. However, I do not find that this reaches the high threshold of unreasonableness required by rule 76. I accept [NAME_53] submission that the live issue related to whether regulation 8(7) of the TUPE Regulations applied, rather than the

Case No: 2302390/2021, 2305186/2021, 2302394/2022

bare fact of whether there had been a relevant transfer. Most importantly, the concession was clearly made in the letter of the 18th January 2024, in advance of the preliminary hearing then listed for the 26th January 2024. The first correspondence I have been taken to from the claimant, inviting a concession on TUPE, was the email of the 10th October 2023. The main issue of that email is the claimant’s disability status, rather than TUPE. That email was followed up by the claimant on 24th October 2023 (page 246), but that email remains drafted in general terms.

19. This does not seem to me to be an inordinate or unreasonable delay in all the circumstances. It may fall short of ideal. When subjected to forensic analysis it is hard to justify why a similar concession could not have been made at a much earlier point. In practice, however, it is common for points to be conceded relatively shortly prior to a hearing, as a parties attention becomes more focused. In the absence of a greater delay or an earlier detailed warning letter from the claimant, I do not find that it passed the threshold for costs to be awardable.

Disability Status and 18th January 2024 letter

20. The substance of the 18th January 2024 letter was an application, by [NAME_43], to relist what was then the one-day preliminary hearing to a closed case management hearing.

21. That request was granted, meaning that this hearing, which would have been a one-day preliminary hearing to resolve the issues relating to TUPE and the claimant’s disability status at the relevant time was instead a short case management hearing.

22. The request was made on the basis of two points of concession. First, in relation to the TUPE transfer, as set out above.

23. The second concession, in relation to disability, was as follows:

The Third and Fourth Respondent further concede that the Claimant has a disability, being long covid. The Third and Fourth Respondent continue to deny knowledge, or that the Claimant was disabled at the material time. However, they are of the view that this will need to be dealt with as a matter of fact at a final hearing to consider the circumstances rather than as a stand-alone issue for a preliminary hearing.

24. The difficulty with [NAME_43]’s concession was that it was restricted to a matter – whether the claimant was disabled as of January 2023 when the letter was written – which was not to be determined at the preliminary hearing and, for that matter, was not an issue in the proceedings.

25. [NAME_53] argued that, in fact, the wording in EJ Rice-Birchall’s order referred to whether the claimant was disabled and this was reasonably understood by the solicitors acting for [NAME_43] as referring to the current position, rather than her status at the time of the subject matter of the claim.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

26. I have concluded that this is not a fair reading of the order as a whole. It is correct that ¶5 of the order refers to the preliminary hearing determining ‘whether the claimant is disabled’. Read in isolation that is capable of being misunderstood.

27. The rest of the order, however, makes it clear that what is relevant is the claimant’s disability status at the relevant time.

a. ¶17, when dealing with the claimant’s disclosure refers to ‘GP and other medical records that are relevant to whether she had the disability at the time of the events the claim is about’ and ‘any other evidence relevant to whether she had the disability at that time’. b. ¶18 orders that ‘The respondent must write to the Tribunal and the claimant by 27 July 2023 confirming whether or not it accepts that the claimant had a disability and, if so, on what dates. The respondent must deal with each impairment separately. If the respondent does not accept that the claimant had a disability on any relevant date, it must explain why.’

28. Further, the order must be read in the context of the claims brought by the claimant and the applicable law – bearing in mind that at all stages [NAME_43] were legally represented.

29. It should have been apparent to any qualified lawyer dealing with a claim for disability discrimination that the relevant issue was whether the claimant was disabled at the relevant time. With the exception of a small number of cases (such as those brought on the basis of perceived disability or discrimination by association) the question for the Tribunal will always be whether the claimant was disabled when the alleged acts of discrimination occurred. In cases of perceived disability or discrimination by association, the claimant’s disability status at any time would not be relevant.

30. The fact that this is obvious is precisely why lawyers and judges will often speak in more colloquial terms, such as referring to ‘the claimant’s disability status’. The strictly more accurate, but more verbose formula, of ‘the claimant’s disability status at the relevant time’ is unnecessary, because that is always what is meant by ‘disability status’ in the context of Employment Tribunal proceedings.

31. The question of whether a claimant was disabled at the present day, after the time of the events of the claim, would never be a relevant issue in claims before an Employment Tribunal (although it might, in more general terms, be relevant to questions of remedy or how a hearing was conducted).

32. [NAME_53] submits that, in this case, those acting for [NAME_43] believed that the preliminary hearing had been listed to determine whether the claimant was, at that time, disabled. I have not heard evidence on this point and make no findings of fact on it. The correspondence from those acting for [NAME_47], which I consider in more detail below, seems to suggest that, at least at some stages of the proceedings they appreciated that the relevant issue was the claimant’s disability at the relevant time.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

33. It is sufficient for these purposes, however, to conclude that, if that was their understanding, it was not one that a qualified lawyer, giving proper thought to the claim and to the order as a whole could reasonably have reached.

Previous correspondence

34. On the 28th July 2023, [NAME_47] wrote to the Tribunal and other parties as follows: ‘At this point R3 and R4 do not concede disability and look for this to be determined at the preliminary hearing listed for October 2023’, page 226.

35. I note that this did not amount to compliance with the Employment Tribunal’s order, which clearly required that, if the Respondents did not accept that the Claimant had a disability on any relevant date, they must explain why.

36. On 3rd August 2023 the claimant wrote to the Tribunal, copying the other parties, suggesting that the respondent had not complied with the order and suggesting that an unless order be made, page 227-228.

37. The 1st Respondent wrote conceding that the claimant was disabled from 6th July 2021 on 7th August 2023, page 230.

38. The 2nd respondent wrote conceding that the claimant had been unable to perform her duties at work for ’12 months or more’ and that disability was conceded on 7th August 2023, page 229.

39. The claimant wrote to all respondents on 17th August 2023, suggesting that a) the 1st respondent should explain why they were unwilling to concede she had been disabled prior to 6th July 2021 and b) that [NAME_47] should explain the basis on which they contested her disability status, page 231.

40. The 1st respondent then conceded that the claimant had been disabled from June 2020 on 21st August 2023, page 232.

41. The Employment Tribunal wrote to the parties on 28th September 2023, indicating that Employment Judge Leith directed that ‘The Third and Fourth Respondents must, within 7 days, write to the Tribunal and the other parties explaining why they do not accept that the claimant had a disability, as required by paragraph 18 of EJ Rice-Burchell’s Case Management Orders of 8 June 2023’

42. [NAME_47] replied on the 4th October 2023 as follows (page 233):

We note the Tribunal correspondence and make reference to the case management orders of 8 June 2023 and our confirmation in relation to disability and position on disability on 28 July 2023.

Our client remains of the view that while the Claimant may have developed a disability over time, being Long Covid, it remains to be a matter for judgment as to if this has a substantial effect on her day to day activities within the meaning of Section 6 of the Equality Act 2010.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

The Third and Fourth Respondent further note that, while the Claimant may have a disability at the time of the next preliminary hearing, being 27 October 2023, it remains firmly in dispute that the Claimant was disabled, or could have been known to have been disabled, at the material time of the alleged acts the Claimant complains of and this for the preliminary hearing to consider.

43. This failed to make [NAME_47]’ position entirely clear. In particular, the claimant would generally only be disabled if her condition had a substantial effect on her day-to-day activities (the exceptions, such as deemed disabilities or conditions likely to reoccur do not appear to be applicable). It is therefore hard to follow what is meant in the second paragraph.

44. It does appear, however, that at least on the 4th October 2023, [NAME_47] understood that the crucial issue for the preliminary hearing was whether the claimant was disabled at the time of the acts she complained of.

45. The claimant wrote again on the 10th October 2023, criticising [NAME_47]’ approach and suggesting that they were in breach of the order. In particular, she complaints that ‘no explanation is provided as to why your clients are continuing to dispute that I was disabled at the time of the act complained of’.

46. On 13th October 2023, the claimant sought an adjournment of the preliminary hearing, then listed on 27th October, page 237-240.

47. [NAME_47] replied on the 19th October 2024. I note that, at that time, they wrote that ‘It is asserted that the Third and Fourth Respondent have clearly set out the position in relation to disability and complied with the Tribunals requirements. Any further issues around this will need to be considered at the relisted preliminary hearing given the position outlined. It is for the Claimant to establish that she has a disability at the material time of the allegations raised. This remains in dispute.’ Again, it appears that at this stage [NAME_47] appreciated that the crucial issues was whether the claimant was disabled at the time of the acts she complained of. The assertion that [NAME_47] had complied with the Tribunal’s order remained inaccurate, since there had not been any explanation of the basis for their position.

48. Although there was subsequent correspondence between the parties, in my view it took the position no further.

49. It seems to me that the following points are significant from this correspondence:

a. [NAME_47] had been told, on a number of occasions, by the claimant that in her view the crucial issue to be determined at the preliminary hearing was whether she had been disabled at the relevant time. b. They had made no objection to that and, indeed, repeated the same point themselves.

Case No: 2302390/2021, 2305186/2021, 2302394/2022

c. The claimant had repeatedly drawn [NAME_47]’ attention to the terms of the Tribunal’s order regarding disability and, in particular, its requirement that, if they did not accept disability, to explain why. d. [NAME_43] had taken the position that they were not in breach of the order, but this was plainly not sustainable. There had indeed been a failure to explain the basis on which they did not accept that the claimant was disabled.

50. I also note that the letter of 18th January 2024 was written unilaterally. There does not appear to have been any attempt to discuss with the other parties whether the concession meant that the preliminary hearings was unnecessary.

51. In my view [NAME_43] did act unreasonably by seeking an adjournment on what they should have recognised was a false basis. The essential submission in the 18th January 2024 letter is that the preliminary hearing should be vacated, because it was unnecessary in light of the concessions made by [NAME_47].

52. The second concession was, however, largely meaningless because it concerned an issue that was not to be determined at the preliminary hearing and was not, in fact, an issue in the claim at all. [NAME_47] could not have reasonably believed that the concession rendered the preliminary hearing superfluous.

53. It is commonplace for parties to write to the Tribunal indicating that a hearing has become unnecessary, because of developments in the case. It is particularly common for hearings dealing with a preliminary point to be vacated on the basis that, as a result of disclosure, discussion or simply further consideration, the issue is no longer in dispute between the parties.

54. It is not reasonable, however, to communicate to the Tribunal that a hearing should be vacated because it is unnecessary due to a concession, when no relevant concession has actually been made. The commonplace nature of such applications should not obscure the potentially serious consequences. Once a hearing has been vacated or changed it is rarely possible to recover the original listing – the Tribunal’s resources, both in terms of rooms (whether virtual / video or physical), clerking and judicial time will have been allocated elsewhere. T is likely to be delay in re-listing (and, in venues like London South with a substantial backlog of cases this may be substantial). Other parties may well have incurred costs in relation to the original hearing, which they may not be able to recover. Delay and the associated prolonging of a claim is, in any event, of significant detriment to the parties even if there is no direct financial cost. Inviting the Tribunal to vacate a hearing is a significant step. It should not be done lightly or without consideration. If there is any doubt as to whether the hearing remains necessary, this should be discussed with the other parties and made clear to the Tribunal.

55. I note that [NAME_43]’s letter, read carefully, does communicate that the issues of their knowledge and whether the claimant was disabled at the material time, remained in dispute. This is not, therefore, a situation in which a party had directly mislead the Tribunal about the nature of the concession. A perfectly proper application could have been made on the basis that the issue

Case No: 2302390/2021, 2305186/2021, 2302394/2022

of the claimant’s disability status at the relevant time would be better determined at a final hearing, rather than as a preliminary issue.

56. Nonetheless, in my view the letter remained unreasonable, because it failed to make clear that no relevant concession had, in fact, been made in relation to disability and that therefore what was really being requested was for the Tribunal to reconsider the order of Employment Judge Rice-Birchall that disability be determined at a preliminary hearing. While I make no finding of an intention to mislead the Tribunal on the part of [NAME_47], the letter was nonetheless was misrepresentative of the true position. This may have arisen, as [NAME_46] suggested, from a misapprehension as to what the hearing was to determine. Whether it did or not, I find that [NAME_47] acted unreasonably.

57. I have been referred to an email sent on behalf Acting Regional Employment Judge Khalil on the 26th January 2024, which indicated that the issue of disability could be considered at the final hearing. I do not think that this takes the matter any further. I do not read that email as suggesting that Employment Judge Khalil had reached a final decision on how disability should be determined. Rather it indicates one of the possibilities considered at this hearing. Regardless it is in no way an endorsement of [NAME_43]’s actions.

58. For the avoidance of any doubt, I have not considered whether [NAME_43] should have made any greater concession in relation to the claimant’s disability or whether a failure to do so was unreasonable. I have no evidence in relation to the claimant’s disability before me and cannot therefore reach any determination on these issues.

59. I have to go on to consider whether, having reached the threshold condition costs should be awarded.

60. No argument or evidence has been presented in relation to either the 3rd or 4th respondent’s means or ability to pay and I cannot therefore take that into account.

61. I have concluded that costs should be awarded. First, [NAME_47]’ actions have lead to a necessary hearing being vacated and now re-listed. This has mean that an additional case management hearing has occurred today, which would have been unnecessary, since the necessary issues could have been dealt with as part of the preliminary hearing. I accept that the claimant has incurred legal costs in respect of this hearing. Second, although the principal grounds on which costs are sought in relation to the disability point is in relation to the 18th January 2024 letter, [NAME_47] acted unreasonably in earlier correspondence by a) failing to comply with the Tribunal’s orders in relation setting out their position while b) seeking to insist to the claimant that they had done so. This is therefore a matter of an ongoing failure, rather than a single incident. That failure also appears (at least on [NAME_43]’s case that they had an understanding of the issue for the preliminarily hearing that I have found to be unreasonable) to have contributed to their later unreasonable behaviour. This is because a proper consideration of their position on the disability status question should

Case No: 2302390/2021, 2305186/2021, 2302394/2022

have led them to a better understanding of the true issue in the claims and therefore for the preliminary hearing.

62. The sum claimed in costs is £2,500 plus 20 % VAT, being the brief fee payable to claimant’s counsel to attend the preliminary hearing to deal with the TUPE and disability issues. This is a reasonable fee for work of this nature, given the complexities of this claim. It has not been suggested to me that it is an unreasonable sum.

63. Costs should be some relation to the unreasonable conduct involved, but need to be specifically related or equivalent. Nonetheless, I conclude it is proportionate to order [NAME_43] to pay a contribution to the claimant’s costs of £3,000 on a joint and severable basis.

Employment Judge Reed

05 April 2024

__________________________________________

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. 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:

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

Case Number: 2302390/2021 2305186/2021 2302394/2022

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

First Respondent: [redacted]

Second Respondent: [redacted] Third Respondent: [redacted] Fourth Respondent: [redacted] London South by CVP On 13 May 2024

Before: Employment Judge Hindmarch

Appearances For the claimant:

[redacted] For the first respondent: [redacted] For the second respondent: [redacted] For the third respondent: [redacted] For the fourth respondent: [redacted]

JUDGMENT

1. At the relevant times the Claimant was a disabled person as defined by section 6 Equality Act 2010 because of Post-Covid Syndrome.

2. The complaints of disability discrimination can therefore proceed.

Employment Judge Hindmarch 13 May 2024

Case Number: 2302390/2021 2305186/2021 2302394/2022

Sent to the parties on: 4 June 2024 …………………………….

For the Tribunal Office:

……...……………………..

Case Number: 2302390/2021; 2305185/2021; 2302094/2022

1 of 2

EMPLOYMENT TRIBUNALS

Claimant:

[redacted] [NAME_38]

v (1) [COMPANY_58] (in Liquidation), (2) [NAME_7], (3) [COMPANY_8] (in Liquidation), (4) [NAME_10] at: London South (via CVP)

On: 22-26 June 2025

Before: Employment Judge Fredericks-Bowyer

Tribunal Member Chacko

Tribunal Member [NAME_59] For the claimant:

[redacted] For the 1st, 2nd & 3rd respondents: [redacted] For the 4th respondent:

[redacted]

JUDGMENT

1. All allegations against the 2nd respondent are dismissed upon their withdrawal prior to the start of the hearing.

2. The response of the 3rd respondent is struck out following it not being actively pursued.

3. Claim numbers 2302390/2021 and 2305186/2021 (against R1 and R3) are dismissed upon their withdrawal after the hearing finished but prior to judgment being given.

4. Claim number 2302094/2022 (against R3 and R4) is not well founded and is dismissed.

Approved by: Employment Judge Fredericks-Bowyer

Case Number: 2302390/2021; 2305185/2021; 2302094/2022

2 of 2

Dated: 2 July 2025

NOTE: Oral judgment was given in respect of claim number 2302094/2022. Written reasons will not be given unless requested in writing within 14 days of the sending of this judgment.