Employment Tribunal Rules on Disability Discrimination Case

OUTCOME: Allowed in Part

Case No. 2410963/2023, 2402896/2024 & 2401955/2025

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

HELD AT:

Liverpool ON: 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th, 12th 13th, 16th 17th (in Chambers) & 18th February 2026 BEFORE:

Employment Judge [NAME] [NAME]:

Claimant: [redacted]

In Person

[NAME] [COUNSEL] (Counsel)

JUDGMENT having been given orally on 18th February 2026 and sent to the parties on 15th April 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:

Case No. 2410963/2023, 2402896/2024 & 2401955/2025

2 REASONS

Introduction

1. This is the unanimous Judgment of the Tribunal in case numbers 2410963/2023, 2402896/2024 & 2401955/2025 [APPELLANT] v [RESPONDENT] [COMPANY].

2. This is a lengthy Judgment that has arisen from a fact finding process that was more complicated than should have been the case. We consider that the task of the Tribunal has been somewhat hampered by the preparation of this case and made lengthier as a result. There are four central reasons for this:

a. The first is the range of claims that have been made and the amount of evidence that flows from that. Given the amount of case management that this case went through, it would be hoped that the issues would have greater focus on the key points of dispute. The [APPELLANT] did not assist this either by pleading some points of dispute which should not have been controversial. b. The second reason is that the witness statements in this case from both the Claimant and the [APPELLANT] do not adequately address the [NAME] documents or omit key events or [NAME] evidence. c. The third reason is that the organisation of the bundle is difficult to follow, much of it being out of chronological order or otherwise included without context. There is a photograph section that is not numbered correctly or adequately cross-referred to. The final two sections of the bundle have been added after the other sections with the reader having to navigate through them d. The fourth reason is the number of procedural issues that arose during the case, most notably in relation to failures of disclosure by the [APPELLANT].

3. We have sought to address the length of this Judgment through the use of sub- headings and attempting where possible to deal with matters in a chronological order. Procedural Matters

4. We have taken this opportunity to set out and record a number of procedural matters.

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3 5. The hearing was listed for thirteen days before a full panel. The days were broken down as follows:

a. Monday 2nd February 2026 – Housekeeping and reading day b. Tuesday 3rd February 2026 – Housekeeping and Claimant’s Evidence c. Wednesday 4th February 2026 – Housekeeping and postponement to deal with disclosure issue. d. Thursday 5th February 2026 – [APPELLANT] e. Friday 6th February 2026 – [NAME] [APPELLANT], [NAME] [NAME] f. Monday 9th February 2026 – [NAME] [NAME], [NAME] [NAME] g. Tuesday 10th February 2026 – [NAME] [NAME], [NAME] [NAME], [NAME] [NAME] h. Wednesday 11th February 2026 – Some initial housekeeping, but Claimant unwell and postponed for the remainder of the day i. Thursday 12th February 2026 – Some initial housekeeping then Claimant unwell and postponed for the rest of the day j. Friday 13th [NAME] [NAME] ([NAME]) & [NAME] [NAME] ([NAME]), [NAME] [NAME], [NAME] [NAME] k. Monday 16th February 2026 – Submissions followed by deliberations l. Tuesday 17th February 2026 – Deliberations m. Wednesday 18th February 2026 – Judgment

6. Helpfully, the parties attended the Tribunal on the first day of the hearing. This enabled a discussion as to a range of procedural matters. The majority of the first day was taken as a reading day. Some time was taken at the start of day two to further discuss procedural matters.

7. On day three of the hearing an issue of disclosure arose. Some discussion occurred at the start of the day and the remainder of the day was lost whilst the issue was resolved. This is dealt with separately below.

8. On days 8 & 9 of the case (11th & 12th February 2026) we did not hear any evidence. We did undertake some housekeeping on the morning of each day regarding disclosure and witness availability. The reason for not hearing evidence was that the [APPELLANT] felt unwell. The [APPELLANT] thought that she may have caught some sort of bug. Whilst she did attend Tribunal, which was of use because it enabled discussion, on day 8 she reported feeling nauseous alongside more generalised symptoms of feeling unwell with a lack of sleep. She did not attribute this to the stress of litigation, indicating that she did not feel unwell at all previously, including whilst being cross-examined. On day 9, the [APPELLANT] reported that the nausea had subsided but that she still felt generally unwell. The unanimous view of all parties and the Tribunal was that the [APPELLANT] could not be expected to cross examine witnesses whilst this was the case. The [APPELLANT] apologised for the fact that this had happened, but we

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4 emphasised that there was no need to apologise and that the overriding consideration was a fair hearing for all parties.

9. The Claimant does have current County Court proceedings in relation to the first incident at work. She is claiming personal injury. Neither party sought a stay or has previously sought a stay. Neither party considered a stay to be desirable. It was understood that liability was denied in those proceedings. For the purposes of these proceedings, the parties proceeded on the basis that the injury in the first incident was caused at work and that the [APPELLANT] was responsible for that injury. For the avoidance of any doubt, the [APPELLANT] has not and does not make any admission of liability. This is solely for the purposes of allowing this ET hearing to progress and to avoid entering into findings of fact which may embarrass the County Court or necessitate a stay in proceedings which commenced in 2023 and have been listed for 13 days with all the associated cost attached to that.

10. Many of the documents in this case were handwritten notes. They had not been typed up for these proceedings. On occasion it was necessary for the Tribunal to take time and agree with the parties what a particular note said.

11. The [APPELLANT] applied to rely upon a late witness statement detailing the efforts made to secure the attendance of [NAME] [NAME], the [NAME] [NAME] Manager as a witness. We allowed the [APPELLANT] to rely upon this statement. The Claimant did not wish to challenge the contents of this statement and the witness was not called to give live evidence.

12. The overriding objective requires the Tribunal to in so far as it is possible place the parties on an equal footing. However, we explained to the [APPELLANT] that we cannot run her case for her.

13. Because the [APPELLANT] was representing herself, we discussed the procedure that was going to be followed in this case. We also discussed cross- examination and the basics of asking a question in the Tribunal, such as identifying a page number, asking a question, keeping it short and the need to put your case to a witness. We also discussed what submissions were and their purpose.

14. In addition to the points covered here and the disclosure issues dealt with below, we also record that at times this was a case that required additional case management to ensure that the case remained within the [NAME] issues to be determined. We also record and this is not a criticism because it is common in the Employment Tribunal for an unrepresented party to struggle with cross-

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5 examination that we sometimes had to ask that a question be reframed. The common issues were asking multiple questions at once, which was remedied by breaking the question down into individual questions, or taking a witness to a document and then not asking anything or putting a question, to which we emphasised to the Claimant the need to put her case, and on occasion gave her time to rethink her approach.

Disclosure Issues

15. We consider it appropriate to go into more detail than we otherwise would in relation to the disclosure issues that have occurred over the course of this hearing. We do so because of the volume of disclosure issues that arose and to demonstrate the relevance or limited relevance of the point as appropriate.

16. We also consider that given the content and tone of the third [NAME] submitted by the Claimant, which specifically refers to disclosure issues, it is important that our Judgment sets out the position clearly as to what occurred during the hearing.

17. Both the parties and the Tribunal wished to have a decision on liability within the hearing window. We managed to consider and deal with the disclosure issues within the hearing window.

18. This matter had been subject to a number of case management hearings. There was ample prior opportunity to understand the scope of the case, to do some factual analysis and to give consideration as to what was disclosable.

19. The first disclosure issue is that a large number of documents were not disclosed a) in accordance with the order of the Tribunal and b) disclosed after the witness statements were completed. This was prejudicial to the Claimant as she did not have the opportunity to comment on these documents in her witness statement.

20. The second disclosure issue was the discovery within the [RESPONDENT] [NAME] of a box file containing disclosable documents and a thumb drive that was contained within an A4 envelope which had writing on. On that thumb drive was CCTV footage of an incident on the 11th January 2024.

21. Counsel for the [APPELLANT] informed the Tribunal that a personnel file had been located in hard copy at the [NAME] itself. Within that file there was an envelope with a thumb drive which was said to contain footage of the incident on the 11th January 2024, which was described as the second incident in which the Claimant was injured.

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6

22. These documents needed to arrive at the Tribunal in order for counsel to assess whether they were disclosable. Once that exercise had been undertaken, it was then open to either party to make an application to apply to include any document that they wished to rely upon.

23. This impacted on cross-examination as Counsel did not know whether any document would affect the appropriateness of any question asked. It was also important for there not to be a significant question mark about disclosure existing whilst the Claimant, obviously the key witness in her own case was giving evidence.

24. We therefore agreed to stand down until 12.30 on day three to enable consideration of disclosure to be undertaken. This turned out to be too optimistic and the parties were in a position to return at 2.00pm. At this point, the [APPELLANT] indicated that it had a) identified a number of documents that may be disclosable which had been handed to the Claimant but that there was no application from the [APPELLANT] to rely on them and b) that in terms of the thumb drive, the [APPELLANT] did wish to make an application to rely on it.

25. In reply, the Claimant indicated that there were a number of documents to go through and it is likely that she would be asking to rely on them. She asked for time to do this. She indicated that she had viewed the thumb drive and that the video footage ended at a point that did not show something that she wished to rely on. She was concerned that this could be prejudicial as she says that this additional footage would go to the credibility of [NAME] [APPELLANT].

26. The Tribunal and the [APPELLANT] agreed that the Claimant should have more time. Therefore, we indicated that we would reconvene at 10.00am on day four in order to hear any application to admit documents.

27. On the morning of day four, neither party made an application to introduce late documents. The [APPELLANT] did make an application to introduce the CCTV footage that was on the thumb drive together with the envelope that the thumb drive was contained in. The Claimant did not oppose this application. The Claimant did submit that on her case, she does not know why the footage cuts off at the point that it does and that additional footage is missing as a result. We indicated to the [APPELLANT] that a witness may need to speak to this point. The CCTV footage and the envelope were admitted into evidence by agreement.

28. The third disclosure issue occurred on the afternoon of Tuesday 10th February. As [NAME] [NAME] was being asked questions, it became apparent that [NAME] [APPELLANT] had taken a photograph of the [APPELLANT] whilst she was at work. The Tribunal had not previously appreciated this. It then became apparent that [NAME] No. 2410963/2023, 2402896/2024 & 2401955/2025

7 [NAME] was the subject of a formal investigation that was fully documented, as opposed to simply being given training.

29. The outcome of any [NAME] process was unlikely to be [NAME] to liability in this matter. However, if there was a documented investigation, that could include evidence, including hearsay evidence that could have a bearing on whether an event occurred or not.

30. We raised this with the [APPELLANT] and were informed that late on Monday afternoon, the existence of these documents were brought to the attention of [COUNSEL], which resulted in their disclosure to the Claimant just after 8pm on the evening of Monday the 9th February. We were told this was roughly around 50 pages. No application had been made to include these documents by either side during normal housekeeping.

31. We were concerned by many aspects of this. It was a clear disclosure breach by the [APPELLANT]. The Claimant was representing herself and at a disadvantage. We asked the Claimant to consider the disclosure received overnight and to tell us whether she wanted any documents included on the morning of the 11th February 2026. We also informed the [APPELLANT] to attend with sufficient copies and also to secure the attendance of [NAME] [NAME] as he would need to be [NAME] if anything needed to be put to him. In stating this, we were seeking to avoid delay should there be a need for documents to be admitted. We emphasised that we were not pre-judging the matter and the position would be considered by the Tribunal on the 11th February, once we had heard from the parties.

32. The fourth disclosure issue occurred mid way through the evidence of [NAME] [NAME]. There was evidence on the internal system records of an absence review meeting taking place on the 18th July 2024. No such meeting was referred to in the witness statement of [NAME] [APPELLANT] and the Claimant had no recollection of it.

33. The fifth disclosure issue occurred during members questions to [NAME] [NAME]. [NAME] [NAME] was taken to the Attendance Policy that was in the bundle and had been used throughout the case. [NAME] [NAME] was giving evidence on day ten of the case and was the penultimate live witness. As [NAME] was the dismissal witness, the member wanted to be clear on what policy was applied as the policy in the bundle appeared to relate more to short term absence. [NAME] [NAME] was asked whether the policy in the bundle was the policy that he applied, he straightforwardly answered ‘No’. He identified the policy in the bundle as a policy that applied to [RESPONDENT] [COMPANY], [RESPONDENT] & [NAME] & Others category of staff, whereas the Claimant

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8 was an hourly paid [NAME] colleague. [NAME] [NAME], who was called immediately after [NAME] [NAME] was asked by the Tribunal at the commencement of his evidence the same point and he agreed with [NAME] [NAME]. Therefore, both the person who took the decision to dismiss and the person who determined the appeal against dismissal stated that the policy in the bundle was not the one that applied to the Claimant. The [APPELLANT] was plainly obliged to disclose to the Claimant the correct policy – the duty of disclosure was ongoing. If there was a distinction between short term absence policy and a long term absence policy, both would need to be disclosed. Given this occurred on the Friday afternoon of day ten of a case with submissions due on the Monday, we proceeded on the basis that the [APPELLANT] would provide the correct documents to the Claimant and the Tribunal by Monday and that no further determination would be made on Friday afternoon as to the effect of this.

34. On the Monday morning (day 11- submissions) we were handed up alongside written submissions an Attendance Policy and Long Term absence policy. We discuss the effect of these policies as part of our Judgment.

35. Other points also arose, for example, the Claimant has made a claim for holiday pay. At para 33 of his witness statement [NAME] [NAME] provides specific figures as to the annual leave taken but does not cross-reference any document.

36. At the conclusion of the evidence on Friday afternoon, we indicated to Counsel for the [APPELLANT] that the issue of disclosure was likely to feature in the Judgment given what had occurred in the case. It was emphasised that we had not deliberated and as to what would be said was as yet unknown. However, we advised [COUNSEL] that in submissions, he could well be asked about the reasons for the disclosure failures and whether there was anything else that the [APPELLANT] wished to put forward by way of an explanation.

37. In submissions, Counsel for the [APPELLANT] recognised what had occurred and that it was unacceptable. He submitted that the problems that arose were unintentional and that the prejudice to the Claimant had been dealt with through the approach that had been taken.

38. The Tribunal accepts that the breaches were unintentional in the sense that the [APPELLANT] has gained no strategic advantage through its approach to disclosure and that there is nothing being held back because it is problematic for the [APPELLANT]. Rather, what has occurred here is a lack of attention to detail, for example the placing of the wrong policy in the bundle, a lack of an inquisitive mind performing the necessary analysis as to what proper disclosure looks like with this list of issues or someone taking adequate ownership for the disclosure exercise within the [APPELLANT]. We acknowledge that the [APPELLANT] was facing a wide ranging case which spanned a significant period

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9 of time and in respect of which there was a lengthy and unfocussed list of issues. However, matters such as the correct policy or the retention of documents in a safe would not be impacted by that, these matters would always need to be disclosed on the [APPELLANT]’s own case.

The Issues

39. The list of issues was discussed with the parties at the outset of the case.

40. The list of issues was contained within the bundle. It was in Arial font 12 and readable. Due to the length of the issues and formatting difficulties, it has not been possible to include that list within the main body of this Judgment. Therefore, the list of issues is appended to this Judgment.

41. The [APPELLANT] accepts that at all material times, the Claimant was a disabled person within the meaning of s.6 Equality Act 2010 in respect of the dislocation of her right knee. The [APPELLANT] further accepts that at all material times, it had knowledge of the Claimant’s disability.

42. In relation to the justification defence to the s.15 claim, the legitimate aims had now been pleaded at para 37 of the amended Grounds of Resistance. These aims were inserted to para 2.4. of the list of issues.

43. We discussed para 3.4 of the list of issues at length. The purpose of these items given that they had been included in a list of issues was not immediately clear. [NAME]’s and the alleged substantial disadvantage were set out at 3.2 and 3.3 of the list of issues as you would expect. 3.4 stated “The Claimant relies on the following examples as evidence of the application of [NAME] and the substantial disadvantage”. However, the matters contained within 3.4 did not self-evidently do this nor was it clear why 3.4 had been inserted into the list of issues at all. At best, some of them could be said to be a failure to make an adjustment or more general background evidence. In discussion with the parties, Counsel for the [APPELLANT] indicated that it was his intention to cross- examine on these factual matters and we have considered this as part of the overall factual matrix.

Findings of Fact

44. We begin with some observations on the witness evidence that we heard before we turn to specific findings of fact. These observations provide some context to the specific findings that we make below and in particular because some of the witness statements that were placed before had problems with them, this is a method of providing some structure and enabling those problems to be set out

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10 in a way that can be followed. However, we seek to resolve specific findings of fact where there is [NAME] evidence before us. We direct ourselves in accordance with para 17 of HHJ Tayler (and members) Judgment in [NAME] v [NAME] (UK) [COMPANY] [2026] EAT 12 in which it was stated:

“Generalised findings on credibility are rarely a particularly useful tool for resolving specific issues of fact about which there is [NAME] evidence. It is nearly always better to assess the evidence [NAME] to the issue and reach a determination on balance of probabilities. Even if a witness is unreliable about some matters it does not mean that they are not telling the truth about the issue to be determined. Witnesses who have generally been reliable on most issues may be mistaken about others.” (Para 17).

45. The Claimant’s witness statement did cross-refer with some documents but given the length of the [NAME]’s, the length and breadth of the list of issues and the size of the bundle, it was far too short and did not cover all [NAME] events and documents. At appropriate points in cross-examination, the Claimant was taken to the pleading contained within her lengthy grounds of complaint. Notwithstanding the number of case management hearings that took place prior to this full hearing, we attribute this state of affairs to the fact that the Claimant is unrepresented. We do record that this inevitably made the cross-examination of the [APPELLANT] evidence more challenging for the [APPELLANT] and it has been more difficult to follow parts of her case as a result of the problems with the witness statement.

46. We find that the Claimant’s complaints as to the hostility that she received whilst at work have a limited basis and are not entirely without foundation. However, we do not take this too far and the position is plainly nuanced. Whilst we consider that on some occasions, the Claimant has seen a conspiracy where one does not exist, on other occasions, it is clear that members of staff, most notably [NAME] [NAME] and [NAME] [APPELLANT] had an issue with their perception of the Claimant and found her a challenge to manage, though it does not follow that these individuals did all of the things that are accused of. We make specific findings below.

47. We now move to the evidence given by witnesses called for the [APPELLANT]. There were problems with the witness statement of [NAME] [NAME]. In his witness statement at paragraph 2, he states in reference to his relationship with the Claimant “I believe that we had a professional and friendly relationship.” Later on in the statement he says “I was aware that she had spoken to [NAME], but this had no bearing on how I managed her.” Neither of these statements survive basic scrutiny. It is clear that the Claimant’s relationship with [NAME] [APPELLANT] was problematic and at times dysfunctional. It was necessary for [NAME] [NAME] to be [NAME] so as to allow him the opportunity to deal with and respond to some of

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11 the contents of documents that were not referred to in his witness statement. [NAME] [NAME] evidence following his recall was to the effect that he was wary of the Claimant.

48. One particularly notable incident was not referenced in the witness statement of [NAME] [APPELLANT]. [NAME] [APPELLANT] took a picture of the Claimant whilst she was on the floor of the [NAME]. He saw her and walked towards her and took the photograph without asking how she was. He was not able to tell us when he did this. He did not retain the photograph and it was not before us. He said he did it as based upon seeing the Claimant on the floor and his wish for there to be evidence of her on her phone. Whilst the Claimant has not included this event as one of her claims, we consider that because this is in contrast to the picture painted by the witness statement of [NAME] [NAME] as to the relationship between the parties, it is evidence of there being problems with the relationship and a lack of trust. This is also borne out by the wider observation that [NAME] [APPELLANT] was taking a picture of the Claimant in the workplace and the Claimant was regularly covertly recording her colleagues in the workplace.

49. The witness statement of [NAME] [NAME] also omitted to deal with [NAME] evidence. It was necessary for [NAME] [NAME] to be [NAME] so as to allow her the opportunity to deal with and respond to some of the contents of documents that were not referred to in her witness statement. When [NAME], in oral evidence she referred to a lack of trust in the Claimant. There was some evidence that [NAME] [APPELLANT] does not think through the answers that she gives. For example when interviewed by [NAME] [NAME] in February 2024 [pg 1211] and asked “Hows the relationship been?” She answers “Good, always been kind with her, no issues.” yet in the same interview a few pages later when asked “Have you ever had performance conversation with [NAME]?” she refers to not being afraid of her but not being able to talk to her.

50. The effect of this was that we took particular care when assessing the evidence and making findings of fact regarding [NAME] [NAME] and [NAME] [NAME].

51. [NAME] [NAME] gave evidence remotely to accommodate her maternity leave. Her witness statement was somewhat brief given her level of involvement. We find that she was not particularly engaged with the detail of the case and struggled to answer detailed related questions.

52. [NAME] [NAME] gave evidence in respect of the [NAME] warning. [NAME] [NAME] has retired and is now outside the business. [NAME] [NAME] was not able to assist the Tribunal significantly with regard to her thought processes. We were left with the impression that she viewed the [NAME] warning as somewhat inevitable.

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12

53. The witness statement and subsequent evidence of [NAME] [NAME] [NAME] was problematic. We are not unworldly and understand the drafting process of a witness statement with the assistance of a solicitor. However, we also understand that a witness statement should use a witnesses normal vocabulary and be in their own words. [NAME] [NAME] statement included “....this is an opportunity for them to take steps to improve the same.” We are aware that some solicitors use such a phrase in correspondence but it is not a demonstrative pronoun in common use. The witness statement also sought to deal with quasi legal matters in a way that was surprising. Para 16 stated “The outcome of the Claimant’s [NAME] appeal was not made because of the Claimant’s disability or anything arising from that disability.” Given that the Claimant’s appeal related to her absence from work due to her knee, we cannot understand why this was said and then affirmed as true. However, we also wish to be clear that we do not consider that [NAME] [NAME] has positively lied to the Tribunal. She has been ill-served by a professionally drafted witness statement and gave us the impression of being naive as to her obligations in the internal process and as a witness before the Tribunal.

54. We found both [NAME] and [NAME] both to be reliable witnesses, who were able to engage with the evidence and give straightforward answers to questions with a view to assisting the Tribunal. We were assisted by the level of detail they went into in their investigation and conclusion documents. We consider it is [NAME] that they were somewhat removed from the situation and were able to take a more objective view of the situation. A number of their documents were documents that were not included in the bundle in chronological order in the way that they should have been, rather inserted late at the end of the bundle. We consider that this is the responsibility of the [APPELLANT] not the individual witnesses.

55. [NAME] [APPELLANT] was a truthful witness. When asked by the panel, he clearly identified the Attendance Policy in the bundle as the incorrect one. On other matters relating to the dismissal, he did struggle with some of the detail. Examples include the extent of and details of his conversations with [NAME], the lack of recall of an absence management meeting on the 18th July 2024, the detail of and content of a PILON letter that appears to be generated prior to the dismissal meeting.

56. [NAME] [NAME] gave clear evidence regarding the appeal process and did so in a way that the Tribunal could follow. He provided granular detail and was able to emphasise his independence and thought making process.

57. One of the common features of the criticisms made above is that insufficient care was taken by both sides in the preparation of their witness statements. In

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13 a lengthy hearing, evidence is scrutinised, and gaps in the evidence are exposed.

58. We now move on to our specific findings of fact.

59. The Claimant commenced employment with the [APPELLANT] as a [NAME] on the 22nd August 2019. The Claimant was employed at the [NAME], from November 2021 which is a large [NAME] with a [NAME].

60. The [APPELLANT] worked the night shift between the hours of 7pm through to 5am. She worked two shifts a week, the shift starting on a Friday or a Saturday.

61. Whilst a [NAME] can be expected to undertake a range of tasks, the core element of the role is stock replenishment. That is to say, goods are delivered into the [NAME], previously packaged by [NAME] and the staff then take this stock from the storage area onto the [NAME] floor. Items can be taken from the [NAME] onto the [NAME] floor in more than one way, depending on the stock, depending on how it has been packaged. One of the methods is ‘cages’ where items are in a horizontal cage and items are then removed and placed on the shelf.

62. On the 5th March 2022, the Claimant had an accident at work. This was a Saturday. No admission is made by the [APPELLANT] as to the facts of this and it is defending itself in separate personal injury litigation.

63. The [APPELLANT] right knee was injured. She suffered a dislocation of her knee. This caused the Claimant to have immediate mobility problems. She experienced pain, had trouble bending down and remaining standing.

64. The Claimant commenced a period of sickness as of her next shift, which was on the 11th March 2022. She did not return to work until the 27th September 2022.

65. Little or no evidence has been placed before us as to what happened during this first period of sickness. It is not the subject of a claim that is before the Tribunal.

66. We do note that the Claimant sent a letter on the 6th September 2022, regarding problems that she was having with her pay and also highlighting her wish to return to work but that there had been a delay affected by a change in manager. This document references commencing Employment Tribunal proceedings. This letter has not formed part of either parties case. We note that a grievance

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14 meeting subsequently took place with [NAME] [NAME] the [NAME] Manager on the 17th December 2022.

67. Upon the Claimants return at the end of September 2022, there is some evidence that there were problems with her return to work.

68. Upon her return a Workplace Adjustment Plan, otherwise known as a [NAME] was put into place. [pg311-313]. The [NAME] manager was [NAME] [APPELLANT]. It was recorded that the Claimant could not walk too far, had problems going up and down stairs, she had pain radiating from her hip down her leg, she had difficulty sitting long periods she was struggling to bend and had a reluctance to put weight or strain on her right leg. Working on the top shelves of the [NAME] could also be difficult. Symptoms would vary from day to day.

69. The Claimant suggested adjustments such as shorter shifts and light duties whilst recovering, help with pulling heavier cages and a wish not to use pallet trucks. This appears to be agreed to by [NAME] [NAME] with a review due four weeks later.

70. The next review appears to have taken place on the 7th December 2022 [pg 315]. The note of this meeting could be clearer. The [NAME] manager was [APPELLANT] [NAME]. The Claimant reports that she is going to physio every three weeks. The Claimant reports that her knee has not healed, she is in pain and has difficulty in moving around, she cannot lift anything heavy and struggles with basic house chores.

71. The Claimant asked to remain on light duties and some other points were discussed. It was agreed that the Claimant would continue on adjusted hours, that she would be able to use a walking stick at work and that she would continue with adjusted hours. A possible referral to [NAME] was mentioned.

72. On the 9th December 2022, the Claimant alleges that there was a further workplace accident. She said to [NAME] [NAME] words to the effect of that she felt OK at the time but that this may change later. We take this as a reference to the way in which knee injuries can be variable as can swelling or pain levels. .

73. The [NAME] evidence of [NAME] [NAME] included a note that she had written on the 13th December 2022 referring back to the 9th December 2022. It is titled ‘[NAME] statement for [NAME] leaving work early’.

74. The explanation for this note was not that the accident occurred and this was the incident reporting process. This note was said to be evidence of [NAME] [NAME] No. 2410963/2023, 2402896/2024 & 2401955/2025

15 feeling that she was walking on eggshells. The evidence of [NAME] [NAME] was that she produced this note ‘because she saw what happened to [NAME]. One of the events cited that justified the creation of this note was a reference to the car vandalism event that occurred in August 2023 and therefore which could not have been a [NAME] factor. Whilst the note itself may seem relatively innocuous in its content, we do note at this stage that [NAME] [NAME] appeared to be creating it for her own purpose rather than as internal [RESPONDENT] document and that her somewhat confused evidence on this point was not contained within her witness statement.

75. The Claimant was off work after the 9th December, returning on the 15th December 2022.

76. On the 28th December 2022 [pg 319] the [APPELLANT] met with [APPELLANT] for a [NAME] review meeting. The [APPELLANT] stated that her injury was not healing well and that her physio said that she should take some time off work. Her position was that her injury had deteriorated. The Claimant requested to reduce hours and to drop Saturdays. It was agreed that the [APPELLANT] would remain on light duties.

77. On the 18th January 2023, the [APPELLANT] had a further [NAME] meeting with [NAME] [APPELLANT]. [pg 340]. We would note that this appears the fourth manager that the Claimant has met with through part of the [NAME] process. There appears to be a lack of continuity in the [NAME] process in terms of the manager responsible for considering adjustments. This is linked to or compounded by the fact that the reasoning in the [NAME] is not always clear or otherwise open to interpretation.

78. The [APPELLANT] says that this document confirms that she should not be working cereals or that they were removed from the list of things that she could do. The document does not refer to cereals either as something the [APPELLANT] could or could not do. It does refer to paperware, single pack crisp and nappies.

79. A [NAME] review takes place on the 22nd February 2023 with [NAME] [NAME] [pg 344]. This references the possibility of the [APPELLANT] working tills albeit with the [APPELLANT] wearing a camera. The [APPELLANT] says that she is unable to work spotted items. Spotted items are items which are placed on the floor on an aisle with a view to then being placed on a shelf by an employee at a point in the future. The conclusion of the review is written as ‘continue with original plan’.

80. The Claimant says that her condition is deteriorating further. She has a physio appointment in February.

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16 81. On the 15th March 2023 the Claimant goes off sick. Absence review meetings with [APPELLANT] took place on the 22nd May 2023 [pg 346] and the 1st June 2023 [pg 350]

82. At the 22nd May 2023, [APPELLANT] referred to the Claimant’s work with [APPELLANT] using the phrase “which is conflict of interest”. With reference to the Claimant refusing tills it is stated “have explained as this can be seen as conduct and that all training will be given.”

83. An absence review meeting took place on the 21st June 2023 with [NAME]. There are two sets of notes disclosed regarding this meeting. They contain differences. The handwriting is difficult to read and the sentence structure is in note form. [pg 350 & pg 354]. Both notes record the [APPELLANT] described her knee as being better, that she was walking with a stick and was attending physio and going to exercise classes. It is recorded that the Claimant is not willing to work on tills due to safety concerns. The second note appears to agree the Claimant going to work in the [NAME] between 18.00 and 23.00 on Wednesday and Friday, with the matter to be subsequently reviewed after 2 weeks.

84. On the 19th July 2023 a further OH report was produced. The Claimant did not agree with this report. We can see why. It cited the typical recovery time for a dislocated knee as being 6-12 weeks and then extrapolated that the Claimant would be fit to return by the end of August. We would want to know more as to how or why that conclusion was reached in relation to this specific individual given the history of this specific impairment.

85. On the facts and given the length of the injury to that point, there was at the very least a plausible avenue that there was something more serious going on with the [APPELLANT] knee at that point. This case generally suffers from a lack of reliable medical evidence. There is no positive evidence that the Claimant was malingering and we consider it is more likely than not that she was in pain and that whilst the impairment would vary, there was not long term and sustained improvement.

86. The [APPELLANT] has placed significant weight on the [APPELLANT] not disclosing that report to the [APPELLANT] at the time or thereafter and submits that she misrepresented the position when asked about the report by [NAME] [NAME] in the months thereafter. In cross-examination, the Claimant did have difficulty in adequately addressing why she did not say in open terms to [NAME] [NAME] that there was a report, that she did not agree with it. Some specialist evidence at this point would have assisted, though we also accept that it may not be proportionate to pay for it privately and that the problems of accessing specialist care on the NHS in good time is well understood.

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17

87. The [NAME] of the 29th July [pg 368] is with [NAME]. This refers to petrol shifts being introduced. The details are recorded as 18.15 to 23.15 then moving to the [NAME] to 4.15 am. on a Wednesday and 17.15 to 23.15 on a Friday. Whilst the note does not refer to the [APPELLANT] working in the [NAME] after 23.15 on a Friday, it is clear from the evidence that we heard and the surrounding information in the note that this is what was agreed despite the lack of it being written down.

88. The [NAME] refers to only completing light duties. Bulkies, crisps, cereal, dress clothing if needed are referred to. It expressly refers to extra rest breaks when needed.

89. The [APPELLANT] returned to work on the 4th August 2023.

90. On the 9th August 2023, a [NAME] meeting was held. We note that the chronology provided by the [APPELLANT] and disagreed with by the Claimant refers to a [NAME] investigation taking place on the 9th July 2023. We note that the handwritten notes are signed as of the 9th July 2023. We find that the Claimant is correct and that the documents at 356-357 are the notes of [NAME] [NAME] and the notes at pg 360 are the formal notes of the meeting on the 9th August. The reasons for this are i) the Claimant returned to work on the 4th August 2023 and the warnings policy is applied once the employee returns to work and ii) the handwritten notes refer to giving the Claimant a written warning an event which is agreed to take place on the 9th August 2023.

91. The First written warning [pg 380] was said to be live for a period of 12 months.

92. After the meeting had concluded, [NAME] [APPELLANT] said to the [APPELLANT] words to the effect that the warning was an “opportunity to improve her attendance.” The Claimant says that she found this comment to be upsetting.

93. The Claimant appealed the warning by letter dated 15th August 2023 [pg 382]. In relation to the comment by [NAME] [NAME], it is referred to in her appeal letter in the following terms “whilst I am sure that no offence was meant and I have no issue with [NAME] I find this totally unacceptable.” Later on in the appeal letter, the Claimant says “[APPELLANT] comment only further highlights the lack of consideration and credence the [NAME] gives to my disability.”

94. On the 18th August 2023 [pg 397] a further [NAME] meeting took place with [APPELLANT]. The Claimant described the ongoing knee symptoms. It was clear that she was asking not to work consecutive shifts due to the need to rehabilitate. As to what was else discussed, the handwritten note is not clear

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18 but the outcome was that [NAME] [APPELLANT] would be discussing the Claimant’s shift patterns with [NAME].

95. On the 25th August 2023, the Claimant alleges that [APPELLANT], the [NAME] Manager refused to investigate damage that occurred to her car. We find that there was some damage to the Claimant’s car. We have not heard from [APPELLANT], who has retired and no longer works for the [APPELLANT]. The [APPELLANT] has sought to voluntarily obtain the evidence of [APPELLANT] and has provided an undisputed witness statement as to the attempts that it has made to secure that witness evidence. That undisputed witness evidence includes a hearsay assertion from [NAME] [NAME] that she has limited memory of the [NAME] events as it relates to her. The [APPELLANT] has not sought a witness order to compel a reluctant witness, but we decline to draw an adverse inference as to the facts in these circumstances. The [APPELLANT] has explained its position, which is an understandable one. However, even if we do not draw an adverse inference, we must still determine the facts as to what actually happened.

96. The CCTV evidence that the [APPELLANT] requested was not secured and that much is an agreed fact. However, the Claimant did not include this incident in her witness statement beyond referring to the fact of her car being damaged. It is contained as part of her pleading in the [NAME] [pg 77]. The [APPELLANT] has not provided any evidence to link the failure to obtain CCTV to her disability or to her protected acts. In her [NAME] the [APPELLANT] alleges that her adjustments needs were being leveraged against her. We are not able to make this finding of fact which is no more than a bold assertion.

97. On the 30th August, the [APPELLANT] alleges that [NAME] [APPELLANT] required her to take her break on the shift after three hours. The [APPELLANT] says that whilst she was working at the [NAME], she received a telephone call from a [NAME] [NAME] who asked her to take her break whilst she was at the [NAME], not the main [NAME]. The Claimant asks us to infer that this instruction came from [NAME] [NAME] as a targeting of her.

98. In general terms, we accept the Respondents evidence that employees were free to take their break as they wished, subject to any business need such as a delivery arriving or being in the middle of a time sensitive task. As to the 30th August, [NAME] [NAME] positively denies instructing [NAME] [NAME] to this effect. We have not heard from [NAME] [NAME]. We find that there was no instruction from [NAME] [NAME] but this does not mean that there wasn’t a phone call from [NAME] [NAME]. Given that the only direct evidence is that of the Claimant, we accept a phone call was made but do not find that it was an instruction from [NAME] [NAME]. We consider that this was a one off and not a regular occurrence.

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19 99. The Claimant says that on the 31st August 2023 she had a conversation with [NAME], [NAME] [NAME] refers to conversation that occurred on the 2nd September. The Claimant says that she complained regarding the behaviour of [NAME] [APPELLANT].

100. The Claimant commenced Early Conciliation on the 31st August 2023 (Date A).

101. On the 1st September 2023 at a [NAME] meeting, [APPELLANT] asked the Claimant to chase her OH report. [pg 407]

102. A further [NAME] meeting took place on the 22nd September 2023 [pg 425] with [APPELLANT]. The Claimant was asked to provide more medical evidence and the absence of medical evidence was referred to. At this point, the [APPELLANT] still did not have access to the most recent OH report.

103. This is a convenient point to record that one of the key drivers of the problems in this case is the [NAME] process. This includes the following i) we agree with the subsequent recommendation of [NAME] [NAME] in the fair treatment process [pg 549] that a [NAME] which is supposed to be identifying specific adjustments should be a living (organic) document that is amended as the situation changes. This does not mean that records cannot be kept and previous versions of the [NAME] can be stored but a single, living, current [NAME] would serve both employer and employee better. ii) the [NAME] are handwritten rather than typed and are occasionally illegible, and at times the sentences are not complete. If a [NAME] is not decipherable it is hard to see how it of assistance. Iii)Given that the Claimants injury is musculoskeletal and not for example something more amorphous such as ill health related to depression, there is no good reason why what the Claimant can and can’t do be set out in simple terms without any need for ambiguity. For example what is meant by ‘light duties’ what is meant by ‘cereal’. In these proceedings at times the parties have sought to interpret a [NAME] as they would a contract. All that is required is basic common sense. We are unimpressed by the Respondents distinction in these proceedings between low level and picking off the floor. It is a serious knee injury, the bending of the knee is the problem.

104. [NAME] [APPELLANT] heard the Claimant’s appeal against the written warning on the 22nd September 2023 [pg 452]

105. The witness statement of [NAME] [NAME] states “I was satisfied based on the evidence reviewed and my investigation into the [NAME] appeal that Claimant (sic) was treated in the same way we would have treated anybody

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20 that had such significant absences and absence triggers.” We find based upon this statement and the other evidence given by [NAME] [NAME] that she did not take into account the Claimants disability when refusing her appeal nor did she make any adjustments.

106. [NAME] [NAME] and [NAME] [NAME] were asked about the training they received and whether that explained why absence management was utilising the language of [NAME] and [NAME] warnings. Neither witness was able to give any insight as to why this language was used.

107. The Claimant alleges that at some point in September 2023, [NAME] [APPELLANT] expressed frustration that the Claimant could not be fired. She also says that [NAME] [APPELLANT] was talking about the fact that the Claimant had commenced Early Conciliation. The Claimant relies upon what is contained within the texts of someone called [NAME] who worked in the [NAME]. [NAME] has not been called as a witness to the Tribunal. As with some other aspects of this case, the evidence is vague on this point as to what exactly was said and when. On the one hand, we have the assertion by the Claimant utilising a written message from an individual who has not been called as a witness. On the other hand, there are the problems that we have outlined above regarding the credibility of [NAME] [NAME] as witness and in particular the fact that the concerns that we have regarding [NAME] [NAME] as a witness is that she sought to minimise her true feelings which include frustration or defensiveness regarding the Claimant. Frustration or defensiveness could be expressed as a frustration about not being able to remove someone from the workplace.

108. We have considered this carefully. We do find that in general terms it is more likely than not [NAME] [NAME] did in effect warn others (e.g. [APPELLANT] and [APPELLANT]) regarding communication with the Claimant and at the very least infer that she was a troublemaker. We also consider it to be more likely than not that the word ‘fired’ was used.

109. In making this finding, we understand the risk of hearsay evidence. The basis for this finding is the extent to which [NAME] [APPELLANT] was keeping records of some interactions with the Claimant, the content of her subsequent fair treatment interview and also her oral evidence before us whilst being [NAME] in which she openly stated her lack of trust in the Claimant.

110. This is an opportune point to note that both sides have a degree of responsibility for the situation that had developed to this point. The Claimant was plainly a challenge to manage. She would frequently challenge others, in strident terms. She was covertly recording colleagues at work without their permission over a sustained period. There was plainly a lack of trust on both sides and both sides bear a degree of responsibility for that.

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21

111. On the 27th September 2023, the Claimant completed her work in the [NAME] and drives over to the [NAME] , which was closed to the public in order to continue the remainder of her shift. She was unable to gain access. The Claimant made multiple phone calls to the absence line (at least 40). We accept the Claimants evidence that this was the number that she had been told to call.

112. We recognise that this was after the Claimant had commenced early conciliation. We also recognise that there is wider evidence of [NAME] [NAME] being most charitably weary and defensive when it came to the Claimant and least charitably suspicious of the Claimant. We have considered this as part of our findings of fact.

113. However, we do not find that [NAME] [APPELLANT] deliberately kept the Claimant out of the [NAME]. There are many reasons for this finding of fact. We accept the evidence as plausible that the absence phone was on charge and whilst someone should have given thought to that, it is an explanation as to why the calls went unanswered. We also consider that it is implausible that [NAME] [APPELLANT] would do as the Claimant suggested. As a matter of basic common sense, the risk/reward ratio would be too high. [NAME] [NAME] would be placing the entirety of her employment at risk in a bold act, witnessed by others who could turn on her or report her in return for keeping the Claimant from coming into work. It is more likely than not that the simple explanation is correct rather than the more unlikely one.

114. The First ACAS Early Conciliation Certificate was issued on 10th October 2023 (Date B).

115. The Claimants First [NAME] was submitted on the 14th October 2023.

116. On the 20th October 2023, the Claimant had a conversation with [APPELLANT]. The Claimant raised her concern that she was not always able to take her rest breaks when she needed. [NAME] [NAME] agreed to speak to [NAME].

117. On the 15th November 2023, the Claimant makes a number of allegations in her pleaded case which are not then repeated in her witness statement regarding the conduct of [NAME] [NAME] and [NAME] [NAME]. Further allegations are made as to [NAME] [NAME] and [NAME] [NAME] failing to follow the [NAME] on the 29th November 2023.

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22 118. Our findings on the approach of [NAME] [APPELLANT] and [NAME] [APPELLANT] to the Claimant’s [NAME] is that they plainly found the situation frustrating and there were plainly communication problems. However, we do not find that on any occasion the Claimant has proven that either [NAME] [APPELLANT] or [NAME] [APPELLANT] deliberately and intentionally gave the Claimant duties which they know she was not able to undertake. We make this finding because there is no evidence of such an instruction. The height of the evidence is words being used that are ambiguous as to their interpretation.

119. The [APPELLANT] points to the fact that at no time has the Claimant been disciplined in relation to failing to follow instructions.

120. The evidence of [NAME] [NAME] and [NAME] [NAME] was to the effect that the underlying instruction to the Claimant was to the effect of ‘do what you can or do what you are able’. We accept that this was the intention of [NAME] [NAME] and [NAME] [APPELLANT]. The issue in this case is the extent to which the Claimant and her managers effectively communicated with each other and the extent to which the [NAME] or the instructions were capable of being interpreted.

121. For example, we accept that items were spotted on the floor of the [NAME], including on aisles on which the Claimant worked. We also accept the evidence of [NAME] [APPELLANT] that the Claimant was not expected at least by him to pick these up.

122. It is right to record that there was low level conflict and there was defensiveness as each party retreated into their positions.

123. On the 28th December 2023, the Claimant alleges that she was injured on the [NAME] floor. Her pleading states that her knee ‘blew out’. 124. The Claimant alleges that this occurred on the cereal aisle. Cereal can include items which are light and items which are heavy. It is the Claimant’s case that she was made to lift heavy items. It is the [APPELLANT]'s case that it accepts that the Claimant was assigned to do the cereal aisle but does not accept that this would require her to do the cereal items which she could not lift and would not be compatible with light duties.

125. The cereal point is a microcosm of the problems with communication that pervade this case. We accept that it is the intention of the [APPELLANT] that the Claimant is doing light duties. We also accept that the Claimant is assigned to ‘cereal’ and that there does not appear to be a distinction (e.g. on the board) between light and heavy. We do not accept the Claimant’s case that she was positively required or instructed to lift heavy cereal. What we do accept is that the packaging of a cage of goods or otherwise would not be done in a way that would assist the claimant in performing her duties.

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23

126. The Claimant raised a grievance on the 28th December 2023 by sending correspondence to [NAME]. It is common ground that [NAME] [NAME] did not respond to this email. We find that this was by omission rather than deliberate and consider this matter further below.

127. There is CCTV footage of an incident on the 11th January 2024. The CCTV footage shows the Claimant working putting goods on the shelves on an aisle. She is using a stick and is sometimes working one handed. The goods are in a cage which has wrapping around it.

128. The CCTV shows goods falling off the cage. As this happens some goods move towards the Claimant and there is a slight step back by her.

129. The parties do not agree on what this footage shows. Our finding is that there does not appear to be any impact of significance on the Claimant. The Claimant refers to the moving back of her leg as being the pain that she was caused.

130. The [APPELLANT] relies upon this as adverse to the Claimant’s credibility. It says that the Claimant reported to [NAME] [APPELLANT] words to the effect of that stock had hit her leg. The Claimant did say that she was ok but that she was concerned that this may not be the position in a few hours.

131. We do not consider that this point totally undermines the Claimant’s credibility, but it does to some extent show that the emphasis put on something by the Claimant is not the full picture.

132. A further [NAME] report was obtained on the 12th April 2024, the referral having been made on 11th Jan 2024. It referred to the Claimant having chronic knee pain and reduced mobility. We pause at this point to note that this appears to be a more understandable medical position given what is known than was in the previous, withheld report. The report refers to the [APPELLANT] possibly not being suitable “for moving and handling activities if she is only able to do so with one hand.” [pg 888].

133. At this point in time, the Claimant was using a stick at work on every shift. This was manual work. Moving stock onto shelves with one hand appears to us as a Tribunal to be problematic.

134. We can understand the perspectives of both sides. The Claimant was in pain. Much of the role she could not undertake. The medical position varied in terms of flare ups but there was no overall improvement. The [APPELLANT] would have been reluctant to say to an employee that she could not attend work

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24 at all on medical grounds. We know that the Claimant ended up going off sick in May.

135. [NAME] [APPELLANT] was appointed to consider the Claimants grievance. He spoke with the Claimant on the 12th February 2024, [NAME] [APPELLANT] on the 26th February 2024, [NAME] [NAME] and [NAME] [NAME] separately on the 2nd March 2024.

136. The February 2024 [NAME] appears to be a significant improvement on previous [NAME] in terms of its clarity.

137. Having covered all of the previous [NAME], it is convenient at this point to deal with a point that the Claimant has raised with witnesses during the hearing. It has been put to a number of witnesses that the Claimant denies that it is her signature on some of the [NAME] documents. One witness, [NAME] denied that it was her signature on one of the [NAME]. This is plainly a concern. However, the Claimant seeks to rely upon the [NAME] in order to establish her case. She has not identified or put to a witness where a [NAME] is said to be to her detriment or otherwise inaccurate.

138. On the 27th March 2024 the [APPELLANT] received her Fair treatment outcome letter [pg 539]

139. On the 2nd April 2024, the Claimant commenced Early Conciliation again (Date A). The second certificate was issued on 16th April 2024.

140. On the 7th April 2024 the Claimant appealed the Fair Treatment Process Outcome [1245]. [NAME] [NAME] was appointed to consider the appeal.

141. On the 15th May 2024, the Claimant went off sick. She did not return to work.

142. There is an initial reference to the Claimant possibly having gout at this point in time, which it appears on the information we have was a misdiagnosis.

143. The [NAME] was submitted on 16th May 2024.

144. On the 18th July 2024, the Claimant had a health review meeting with [NAME] [APPELLANT]. This was referred to by neither party in their witness statements, but is referenced on the [NAME]. We find that it is more likely than not that this conversation took place by way of telephone.

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25 145. On the 14th August 2024, [NAME] [APPELLANT] wrote to the Claimant with the outcome of her fair treatment at work appeal. That appeal decision letter upheld the original decision of [NAME] [NAME]. The letter went through matters in detail, noting a number of points whereby good practice has not been followed.

146. [NAME] [NAME] was subjected to a subsequent [NAME] process as a result of the outcome of the fair treatment process. He was interviewed as part of that process. As with other points noted above, this was not covered in his witness statement at all. Subsequent disclosure relating to this was given to the Claimant on the evening of day 6 of this case as noted above. It follows that these disclosable documents were not referred to in his witness statement either.

147. We have expressly excluded from our consideration of the facts the [NAME] outcome given to [NAME] [APPELLANT]. The Claimant was not interviewed or asked questions as part of this process. Neither party has suggested that it is [NAME] to the question of liability. What is [NAME] is any statements made by a witness as to what occurred in relation to events that the present claims are concerned with.

148. A further health review meeting took place between the claimant and [NAME] [APPELLANT] on the 7th November 2024. [pg 1124].

149. A further health review meeting took place on the 8th January 2025.

150. The final health review meeting took place on the 6th February 2025.

151. On the 6th February 2025, the Claimant was dismissed by [NAME] [APPELLANT] in a meeting with a payment in lieu of notice. The stated reason was capability.

152. On 6th February 2025, the Claimant commenced ACAS Early Conciliation for a third time (Date A)

153. On the 20th February 2025, the Claimant submitted her appeal against dismissal.

154. The appeal against dismissal meeting took place on the 18th March 2025 with [NAME] [NAME].

155. By letter dated 19th March 2025, [NAME] [NAME] dismissed the Claimants appeal against her dismissal. He gave clear reasons for his decision which are recorded in his decision letter. We accept these reasons as being genuine.

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26 156. In evidence before us, the Claimant accepted that the medical position at the time of her dismissal and her appeal was the same. She had been on long term sickness absence. There was no clear period of return nor any indication that the Claimant would be capable of returning within any sort of broad reasonable period.

157. The Third ACAS Certificate was issued on 20th March 2025.

158. The third [NAME] was submitted on 1st April 2025. This [NAME] brought a claim of unfair dismissal regarding the Claimant’s dismissal and her appeal against that dismissal.

159. The third [NAME] also referenced complaints, including explicit regulatory complaints regarding [RESPONDENT] conduct of the litigation, including disclosure. The SRA is referenced. The Claimant gave no positive evidence on this to the Tribunal. What we do have in the bundle of documents is an email of the 23rd January 2025 from the claimant to [RESPONDENT] [pg 557] and a complaint to the Tribunal on the 27th January 2025 [pg 184].

160. This correspondence is not easy to follow. It is alleging fraud on the part of [RESPONDENT] and its legal team. The correspondence contains hyperbole and assertion. Essentially, the Claimant is saying that things appear to be missing from the bundle or that what is being included in the bundle is fake.

The Law

161. As to the complaints of discrimination, we must ensure that we only consider the complaints that are before us: Chapman v Simon [1994] IRLR 124.

162. However, in considering the complaints that are before us, we must look at all [NAME] facts found and then apply the language of the statute. This includes permitting the Tribunal to look at and consider [NAME] background evidence.

163. It is understood that discrimination is rarely overt. It can be subtle and fact sensitive. Evidence of discrimination may come from a range of sources but often depends on inferences being drawn from facts found. Recognising the difficulty that exists in proving discrimination, s.136 of the Equality Act provides for a specific application of the burden of proof.

164. Section 136 Equality Act 2010 provides:

(1) This section applies to any proceedings relating to a contravention of this Act.

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27 (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

But subsection (2) does not apply if A shows that A did not contravene the provision.

165. Section 136 provides for a two stage process for determining whether the burden shifts to the employer. It is not obligatory for Tribunals to resort to the burden of proof and in appropriate cases, the Tribunal can ask ‘the reason why’ the treatment occurred. Where there is room for doubt as to the facts necessary to establish discrimination, the burden of proof provision is of particular assistance. In contrast, where the Tribunal is in a position to make positive findings on the evidence, there is little to be gained by returning to the burden of proof: [NAME] v Grampian Health Board [2012] ICR 1054.

166. Where the burden of proof provisions are applied, the longstanding authority is that of [NAME] v Nomura International PLC [2007] ICR 867 following on from Igen v Wong [2005] ICR 931. Mere difference in treatment is not ‘without more’ sufficient to reverse the burden of proof. However, the ‘more’ is not required in and of itself to be something substantial.

167. The mere existence of unreasonable behaviour does not in and of itself lead to an inference of discrimination. At the same time, the fact that conduct is unreasonable does not mean that it cannot be discriminatory. c.f. [NAME] v [COMPANY] & Others [2004] IRLR 799

168. Section 26 Equality Act 2010 provides (1) A person (A) harasses [NAME] (B) if— (a) A engages in unwanted conduct related to a [NAME] 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.

169. Section 26 further provides: (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

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28 (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

170. In [NAME] v Dhaliwal [2009] IRLR 336 Underhill J (as he then was) considered the threshold for harassment. He noted:

“We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.” (para 22)

171. It is not suggested that a proposition of law exists that intent is irrelevant. Rather, the statutory language must be applied carefully.

172. Underhill J continued:

“While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” (Para 22)

173. Further context was provided by the Court of Appeal in Grant v HM Land Registry [2011] IRLR 748 in which the following passage from [NAME] was submitted by the Equality and Human Rights Commission (intervening) to be in error as conflating purpose and effect:

“One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.”

174. [ADDRESS] of Appeal rejected this:

“I do not agree. When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be [NAME] to assessing effect. It will also be [NAME] to deciding whether the response of the alleged victim is reasonable.” (para 13 per [NAME] LJ)

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29 175. A single isolated incident can be an act of harassment and that there is no obligation for there to be more than one act for it to amount to harassment. Again, context is essential and the wording of the statute must be applied.

176. Section 27 of the Equality Act 2010 provides:

(1) A person (A) victimises [NAME] 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.

(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 [NAME] or [NAME] person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

177. The duty to make reasonable adjustments is provided for within sections 20 & 21 of the Equality Act 2010. For reasons of brevity, we do not repeat them in full. However, we do summarise the position as follows:

a. There must be a provision criterion or practice. (PCP) b. The [APPELLANT] must apply or would apply that PCP to the Claimant c. That PCP must place the Claimant at a substantial disadvantage in comparison with persons who are not disabled d. The [APPELLANT] must have failed to take such steps as were reasonable to avoid that disadvantage.

178. It is a requirement that the employer is aware or could reasonably be expected to be aware that the Claimant was placed at a substantial disadvantage in order for the duty to make reasonable adjustments to be triggered.

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30 179. In respect of what amounts to a PCP, reliance is placed on [NAME] [2020] ICR 1204 and the Judgment of [NAME] LJ as she then was.

“The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the statutory code of practice that the phrase PCP should be construed widely. However, it is significant that [NAME] chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words “act” or “decision” in addition or instead. As a matter of ordinary language, I find it difficult to see what the word “practice” adds to the words if all one-off decisions and acts necessarily qualify as PCPs… If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice”. It is just done; and the words “in practice” add nothing.” (para 35)

180. She continued: “The function of [NAME] in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. [NAME] serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers … but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether [NAME] is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course … that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.” (Para

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31 36)

181. In respect of s.15 Equality Act 2010, the leading authority is that of City of York Council v Grosset [2018] EWCA Civ 1105. The Council was liable for the unfavourable treatment even though it was unaware of the ‘something arising’.

182. As to ‘unfavourable’ we direct ourselves in accordance with the Judgment of the Supreme Court in [NAME] v [COMPANY] Scheme [2018] UKSC 65 in that the Tribunal must identify the [NAME] treatment and then identity whether it was unfavourable to the Claimant.

183. In a claim under s.15 Equality Act 2010, the Claimant must prove that the [APPELLANT] has treated them unfavourably. They must also prove that the unfavourable treatment was because of something arising in consequence of their disability. If these points are established, then the [APPELLANT] bears the burden of proof to prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

184. In respect of justification, the burden of proof is on the [APPELLANT].

185. [COMPANY] v O’[NAME] (2017) UKEAT/0230/17 the EAT considered the factors that applied in a situation whereby an employer was seeking to justify the imposition of a warning for absence. The focus is not on procedural failings but rather on the identification of the legitimate aim and whether the warning is a proportionate means of achieving that.

186. As to the language of warnings being used in an absence situation, this has been commented upon at Court of Appeal level. In [NAME] v Secretary of State for Work and Pensions [2017] ICR 160 the Judgment of [NAME] LJ contained the following obiter statement: In this context I would observe that it is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound [NAME] in nature. This suggests that the employee has in some sense been culpable. That is manifestly not the situation here, and will generally not be the case, at least where the absence is genuine, as no doubt it usually will be. But an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee’s absences any longer. There is nothing unreasonable, it seems to me, in the employer being entitled

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32 to have regard to the whole of the employee’s absence record when making that decision. As I mention below, the fact that some of the absence is disability- related is still highly [NAME] to the question whether [NAME] action is appropriate.

187. As to what is meant by ‘related to’ the Tribunal was referred to [NAME] v Nailard [2018] EWCA Civ 1203 [2019] ICR 28 in which a broader submission that a failure to investigate an allegation of sexual harassment was rejected by the Court of Appeal in favour of a construction in which there is some form of discriminatory basis (para 98). However, this does not mean that there must be a ‘mental element’ – see the Judgment of the EAT in [NAME] v [COMPANY] and [NAME] [2024] EAT 169. Something can be unknowingly discriminatory and still be ‘related to’.

188. In relation to unfair dismissal, the burden of proof is on the [APPELLANT] to prove the reason for dismissal. If the [APPELLANT] proves that they acted for a potentially fair reason, then the Tribunal must move on to consider reasonableness as provided for in s.98(4) Employment Rights Act 1996. Neither party bears the burden of proof in respect of s.98(4). Whilst this is not a conduct case, the concept of reasonableness still defines reasonable as ‘the range of reasonable responses’. It is not our role to substitute our view as to reasonableness for that of the employer. Rather, we must consider whether the actions of the [APPELLANT] were within the range of reasonable decisions open to the [APPELLANT] in the circumstances. Points such as the fairness of the process, whether it was pre-judged or other factors all come to fall under this.

Conclusions

189. Before turning to the specific claims, we make some broad observations as to the case that was before us.

190. There are a number of strands to the Claimant’s case. One of those strands relates to the treatment that she says that she received and that there was an intent on behalf of those to act negatively towards her. On this point, our findings are nuanced. Regretfully, it is our experience that on some occasions, a Claimant comes before the Tribunal, making wide ranging allegations and upon proper consideration, there is no basis whatsoever for the allegations made. This is not such a case. There was clearly poor management of the Claimant, which the [APPELLANT] has sought to minimise in this litigation. This in turn influenced the Claimant’s perception of the [APPELLANT] and its employees which in turn has led to the Claimant making serious allegations about the [APPELLANT] and its employees. Some of those allegations have

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33 kernel of truth. However, it is also clear that in making allegations the Claimant has gone much further than is reasonable.

191. We are also critical of the [APPELLANT] for recording her work colleagues on multiple occasions without their knowledge or consent. We consider that this should only happen in extreme situations and is not consistent with the implied term of mutual trust and confidence.

192. As to relevance, these recordings have added limited value to this case. We understand and accept the Claimants submission that she provided these recordings and transcripts to the Respondents solicitors a year ago. Her assertion that the first she knew that there was an issue over the accuracy of the transcripts was shortly before the trial was due to commence has not been contradicted. At the same time, based on the recordings that we have heard, our reading of the transcripts that we have been taken to the transcripts are clearly not transcripts upon which a fact finding Tribunal can place reliance. Matters are editorialised, omitted and on occasion inaccurate.

193. Both sides bear some responsibility for this sorry state of affairs. That is to say - the [APPELLANT] (for some of its conduct towards the [APPELLANT]) and the Claimant, because she is responsible for the allegations that she chooses to make bear some responsibility for this. In many of the situation where we have found an allegation not proven, it is because there is a more straightforward, obvious explanation for what happened which is the finding of fact that has been made. Whilst we criticise the Claimant for making so many, wide ranging allegations in this litigation, which has inevitably increased the length of the list of issues and in turn this Judgment, we also recognise that it can be legitimately said that the [APPELLANT] is in part responsible for the state of affairs.

194. Having heard all of the evidence in this case, our core regret as a panel is that the poor initial management of the Claimants disability and the Claimants increasingly strong views led to a situation whereby people were just talking at each other. Neither side was really listening to the other. It is telling that [NAME] [APPELLANT] and [NAME] [APPELLANT] who were not part of the Claimant’s [NAME] and had a degree of objectivity, could see both the evolution of the problem and how there was genuine, sensible feedback as to how the situation could have been handled differently.

195. [NAME] [APPELLANT] and [NAME] [APPELLANT] were suspicious of the Claimant, they were defensive and sometimes frustrated. This stems from the fact that the Claimant had an accident at work. We do not consider that they managed this situation well. If there is a basis for suspecting the Claimant, then that would be a matter for more senior managers than Team Leaders at [RESPONDENT] to deal with. The situation from there on in was not managed well by [NAME] [NAME] who had overall

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34 responsibility as [NAME] Manager, [NAME] [NAME] whose management of the [NAME] process has been a factor in the difficulties experienced by the Claimant, [NAME] [APPELLANT] and [NAME] [APPELLANT] as to the position on the [NAME] floor. At the same time, we accept that both [NAME] [APPELLANT] and [NAME] [APPELLANT] had an approach in so far as the Claimant was concerned of ‘do what you can’ or words to that effect.

196. Having referred to the recordings made by the Claimant above and our criticisms of them, it is essential that we should also record that she has been unfailingly polite before us and respectful to the Tribunal. Her conduct in the hearing room has been exemplary and has helped us as a Tribunal. In terms of the [APPELLANT], we would like to place on record our thanks to [COUNSEL] who has been of significant assistance in discharging his duties to the Tribunal whilst also representing his lay client to the fullest.

Section 15 Equality Act 2010 197. There are four allegations of unfavourable treatment.

198. Paragraph 36 of the amended grounds of resistance is a broad denial of treating the Claimant unfavourably because of something arising in consequence of disability. We are critical of this pleading. Where a warning is given for disability related absence, we would expect a professional pleading to straightforwardly accept this and move on to justification. Creditably, the Respondents written submissions accept in plain terms the unfavourable treatment and the something arising on this point.

199. The [NAME] hearing and the [NAME] appeal outcomes were plainly unfavourable treatment. The cause of these warnings was the [APPELLANT] absence from work. The Claimant’s absence from work was related to her disability. The key issue in respect of 2.1.1 and 2.1.2 is whether or not the unfavourable treatment was a proportionate means of achieving a legitimate aim.

200. The legitimate aims pleaded in the amended grounds of resistance (para 37) are: a. Following the Respondents policies and procedures b. The appropriate management of the Claimant’s absence records c. Ensuring steps were taken with the aim of improving her workplace attendance.

201. When considering justification, we remind ourselves that the [APPELLANT] bears the burden of proof to prove justification. We further remind ourselves that this test is distinct from the range of reasonable responses.

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35 202. The first two pleaded legitimate aims are somewhat broad in nature. The first aim is to follow the Respondents policies and procedures. It is not pleaded what policy is being referred to or why that is a legitimate aim for the purposes of a warning. It is not pleaded that the Claimant has breached a policy. The written policy does not require a warning.

203. The second pleaded legitimate aim is the appropriate management of the Claimant’s absence records. The reference to ‘records’ in this context of giving a warning is puzzling. A more charitable interpretation would be ‘appropriate management of the Claimant’s absence’. Appropriate management of absence is a legitimate aim.

204. We consider that it is plainly a legitimate aim to ensure that steps are taken with the aim of improving the Claimant’s workplace attendance.

205. The factual situation is that we do not consider that there was more that the Claimant could have done at this stage to improve her attendance.

206. The [APPELLANT] points to the fact that the Claimant was working for [APPELLANT]. We accept the Claimant’s evidence that this was a sedentary role that she could do in the most comfortable position, including lying on her bed.

207. The medical situation was that when the Claimant was off work, she was not fit for work. There were no additional steps the Claimant could take to make her fit for work.

208. The tills are to a certain degree a red herring. For a significant proportion of the shift the tills were not open. The Claimant was not under a duty to alter her contractual hours. The [NAME] was open for around an hour longer. As of the point of the warning, we find that the Claimant was prepared to work in the [NAME] in so far as it was open and that the implications of this were not sufficiently considered or discussed.

209. The [APPELLANT] cites incorrect physio advice [pg 356] as being the cited reason for the recovery being put back. That page references the wrong physio advice, but the conclusion that this was the cause of the length of the disability isn’t made out on the note or in fact. In any event, [NAME] [NAME] should be proceeding on the basis of the best and correct medical information. The basic position is that the Claimant has injured her knee, she has not been malingering, her absence was genuine and not avoidable. The [APPELLANT] is entitled to manage that absence, what it has not proven is why a [NAME] warning was a proportionate means of achieving a legitimate aim.

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36 210. We therefore do not consider the issuing of the warning by [NAME] [NAME] to be a proportionate means of achieving a legitimate aim. It does not achieve nor is it likely to achieve the legitimate aim of improving the Claimant’s workplace attendance.

211. As to appropriately managing the Claimant’s absence, we do not find that the issuing of a [NAME] warning was a proportionate means of achieving that aim.

212. In relation to the first aim of following the Respondents policies and procedures, if this was a legitimate aim then it too fails as not being a proportionate means of achieving that aim. The warning is not a procedural obligation under the policy. If the [APPELLANT] did not issue a warning, it would still be following its policies and procedures.

213. If the first two aims were to amount to legitimate aims, then we do not consider the issuing of a [NAME] warning to be a proportionate means of achieving them.

214. In the appeal decision letter, we do note the reference to the Claimant not being given a warning previously in December 2022. No specific evidence was called by the [APPELLANT] on this point nor was this document regarding ‘[NAME]’ evidenced before us. We do not consider that our conclusion is altered as to the lack of proportionality of the warning.

215. We therefore do not consider [NAME] [NAME] upholding of the first written warning to be a proportionate means of achieving a legitimate aim.

216. This was a situation in which there were significant problems with both [NAME] and [NAME]’s evidence before the Tribunal. This has caused the [APPELLANT] problems evidentially, but it is important that this is not taken too far. It is possible for an employer to provide an ex post facto justification for unfavourable treatment. It does not even need to be in the decision makers contemplation at the time. These problems with the witness evidence do not mean that the justification defence must automatically fail. The problems with the Respondents case on these points was much wider.

217. No time limit point arises on either claim.

218. This is very much a conclusion on these specific facts. An employer is entitled to manage an employee's absence and we do not suggest otherwise. Here, the issue is the issuing of a [NAME] warning for absence in circumstances whereby the employee cannot take any meaningful steps to improve their attendance.

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37

219. The language of ‘warning’ here goes further than the warning that was envisaged in [NAME] as cited above. In the present case, the warning is [NAME] in nature as opposed to [NAME] comment about the use of warning implying that it might be [NAME] when it is not. We do not decide the s.15 Equality Act claim based on the use of language, but we do note that there is positive choice by [RESPONDENT] to continue to use [NAME] warnings in respect of absence in circumstances whereby the use of such warnings in the modern workplace has been questioned. The [NAME] with many decades combined experience hearing this case, in effect as the [NAME] considered that this approach was open to criticism.

220. Issue 2.1.3 is that during the [NAME] hearing on 9th August 2023, the [NAME] Hearing manager [APPELLANT] told the claimant that the warning she had received was an opportunity to improve attendance. Issue 2.1.4. is the describing of the comment by [NAME] [NAME] as “appropriate” in the appeal letter written by [NAME] [NAME].

221. The Respondents submission on both of these linked points is that this is one phrase. It does not fall within the meaning of ‘unfavourable’. It submits that ‘unfavourable’ must place a party at a disadvantage.

222. The [APPELLANT] further submits that the intention of [NAME] was for such matters to be litigated through the harassment regime. On this latter point, whilst it has some attractiveness, we would note that our role in terms of the Equality Act is to apply the statutory language. There is no particular ambiguity in the statutory wording that would require us to apply the wording in a way that goes beyond the plain meaning of the text. We would note in particular that discerning the purpose of the harassment regime in this way would be fraught with difficulty. We are aware of examples whereby claims have been dismissed as harassment because of the statutory language of s.26 and the threshold for establishing harassment but still have been found to be an act of direct discrimination under s.13 whereby the conduct may not meet the harassment test but is nonetheless sufficient to amount to a detriment.

223. We accept that the use of a word is capable of being unfavourable. We do not accept that it was unfavourable to the Claimant on these facts. The language used by the Claimant in her appeal letter is the height of her evidence on the point. We do not accept that the words in and of themselves affected or disadvantaged the Claimant.

224. In so far as it is something that does not make sense on the facts and therefore should not be said or is part of the reasoning for the warning and hurt the Claimant and is unfavourable in that sense, we consider this to be tied up

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38 with our findings in respect of the final warning and appeal and already covered by our findings in respect of the final warning and appeal.

225. It follows that the Claimant’s claims of discrimination arising in consequence of disability succeed in respect of the first warning and the appeal (issues 2.1.1 and 2.1.2) and are dismissed in respect of 2.1.3. and 2.1.4.

Reasonable Adjustments 226. We remind ourselves that a reasonable adjustments claim is not about whether or not the [APPELLANT] failed to consider adjustments or whether it has generally behaved unreasonably. It is about the specific wording of the statute and considering each stage.

227. The first PCP relied upon is ‘A requirement for employees to take breaks at certain times at the line managers request’. We note the wording of [NAME] uses the word ‘request’ which is a word that is distinct from ‘required’. We have found that on the facts that the height of the evidence was that on the night shift, the taking of breaks was a loose, flexible arrangement that was a mixture of employee request, manager request taking into account the employees wishes and also the needs of the shift at any time. We consider that this is capable of amounting to a PCP, albeit it is at risk of being somewhat nebulous.

228. However, we do not find that [NAME] placed the Claimant at a substantial disadvantage in comparison to a non-disabled person. It was plainly a loose arrangement, and it has not been shown that the Claimant was disadvantaged by the taking of her breaks. We have not found an occasion whereby the Claimant was refused a break or otherwise wanted to take a break but could not. In terms of more generally, the arrangement was sufficiently loose so as to accommodate her needs.

229. If we were wrong in that conclusion and that the Claimant was at a substantial disadvantage, then we find that the arrangements in place were already sufficiently flexible so as to amount to a reasonable adjustment.

230. The second PCP is “A requirement to bend down and pick up stock at low levels.” We find that this plainly does amount to a PCP that the [APPELLANT] had in place and would apply to other members of staff. It is part of the role of replenishing stock in a [NAME], whether it is bending down and taking stock off a trolley or bending down and taking stock off the floor, which is known as ‘spotting’.

231. This PCP placed the Claimant at a substantial disadvantage in comparison to persons who are not disabled. The Claimant’s knee was unable to or had great difficulty in bending. She either could not do it or would be in

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39 significant pain if she did do it. The [APPELLANT] was aware that the Claimant had significant difficulty in bending down and picking up stock.

232. The key issue in respect of these reasonable adjustments claim is whether there were reasonable adjustments that the [APPELLANT] failed to make.

233. The adjustments in the list of issues that the Claimant relies upon for this PCP are 3.6.2 and 3.6.3.

234. The contradiction here stems from the poor communication. We accept that the general instruction to the Claimant, however specifically phrased was along the lines of ‘do what you can’. We also accept that the Claimant would be presented with work, such as cages in which items were not stacked in a way that would enable her to do all of her work.

235. We consider there was poor management, we consider there was poor communication but we consider that the instruction to do what you can was a genuine instruction and represented the correct position. The Claimant was not obliged to do work that she could not and did not face [NAME] consequences.

236. We note that the [NAME] improve with the February 2024 [NAME]. We also consider that this accords with [NAME] [NAME] evidence that there was some improvement in tensions ‘towards the end’.

237. Adjustment 3.6.2 - we find that the claimant was instructed to work on aisles with lighter products. That element of the adjustment proposed was already made. The outstanding point of contention is the cereal aisle. There is evidence in the bundle of the Claimant being instructed to work the cereal aisle. The distinction is whether or not this meant the Claimant was being required to do all cereal or only the cereal that she could. We have made findings of fact on this above.

238. We note that the Feb 2024 [NAME] does not suggest that the Claimant is capable of working cereal [pg 529] at this point in time. It specifically lists the aisles to work.

239. We consider that the instruction ‘to do what you can’ meant that the Claimant was not instructed to do cereals that she could not and therefore the [APPELLANT] had a reasonable adjustment in providing the Claimant with lighter duties.

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40 240. Adjustment 3.6.3 does not succeed. By instructing the Claimant to do what she can, the [APPELLANT] had made a reasonable adjustment. The Claimant was not instructed to perform tasks that required prolonged or excessive walking or required her to bend down.

241. The claims in respect of a failure to make reasonable adjustments are dismissed. Harassment Related to Disability – s26 Equality Act 2010 242. Regrettably, the list of issues was not in date order. We shall consider the list of issues relating to harassment chronologically as we have sought to make our findings of fact in chronological order and a chronological approach allows the nature of the relationship between the Claimant and the [APPELLANT] to be considered. It is also the clearest and most structured way to consider causation between a protected act and a detriment.

243. Issue 4.1.9 - On 25th August 2023 – it is alleged that [APPELLANT] refused to investigate the Claimant’s car vandalism. We have found that some damage occurred to the Claimants vehicle and we have discussed our approach to the absence of [NAME] [NAME] in these proceedings. Whilst the lack of an investigation may be unwanted conduct, we do not find that it was related to disability. No real positive evidence linking the lack of action by [NAME] [NAME] back to disability has been advanced. This claim is dismissed.

244. Issue 4.1.6 - On 20th October 2023. We do not see how this can be an act of harassment. The point is that [NAME] acknowledged the existence of a previous complaint. That is not unwanted conduct, it has not been explained how it is unwanted conduct related to a disability nor has it been shown that it has the proscribed effect as required by s.26. This claim is dismissed.

245. Issue 4.1.1 - On 27th September 2023 it is alleged that [NAME] [APPELLANT] left the Claimant outside in a storm and ignored the Claimant’s calls to return to the [NAME]. In light of our findings above, this is plainly not an act of harassment. The unwanted conduct alleged, i.e. the deliberate locking out of the Claimant in the storm did not occur. What did occur is a different factual scenario. We accept that the Claimant being locked out of the [NAME] unintentionally whilst there is a storm on is something that would be unwanted by her, but there is nothing in what we have found that relates what did happen to the Claimant’s disability. The need for the unwanted conduct to be related to disability is an essential part of the test for harassment and this claim must be dismissed.

246. We do consider the situation to have been inadequate management. We recognise that we have the benefit of hindsight and that no one should be

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41 held to a standard of perfection, but even allowing for that, some more thought should have been given to this. Even in evidence before us, the Respondents evidence focused on the perceived failings of the Claimant rather than the lack of prior thought as to what the arrangements for the Claimant were in a situation where the [NAME] would be locked. There was little if any thought given to how the Claimant would access the [NAME] or the effect of the absence line being on charge in a different room for a number of hours on charge. We do not regard the position of there being an expectation that someone would know to call the [NAME] when it is closed and still be able to speak to someone to be a reasonable one, particularly given the fact that the Claimant had used the absence line number which she had been given. We can be somewhat critical of the [APPELLANT] for this incident, but it is not harassment. We note that because the Claimant framed this allegation as a deliberate act by [NAME] [APPELLANT], she did not pursue this matter under either s.15 Equality Act or as a failure to make a reasonable adjustment.

247. Issue 4.1.2 - On 15th November 2023 – we have already found on the facts that there was not a failure to make reasonable adjustments. No wider conduct beyond that alleged failure is alleged in this issue. This claim is dismissed.

248. Issue 4.1.3 - On 29th November 2023 - we have already found on the facts that there was not a failure to make reasonable adjustments. No wider conduct beyond that alleged failure is alleged in this issue. This claim is dismissed.

249. Issue 4.1.8 - On 28th December 2023 – The email is at pg 503. It is not replied to. The [APPELLANT] asks the Tribunal to place reliance on the decision of [NAME] [NAME] that this was not intentional, though of course the conclusion on this is a matter for us. We consider that this was poor management and unreasonable for the Claimant to not get a reply. It was unwanted conduct.

250. The [APPELLANT] relies upon Nailard and submits that it is not sufficient for the conduct to arise against a background of disability or touch on the issue of disability.

251. In the present case, the alleged discriminator is someone who has not given live evidence before us. Whilst we have declined to draw adverse inferences from that specific decision not to call the witness, we must still determine the mental processes.

252. In [NAME] the failure was to properly investigate an allegation of sex harassment. The failure to consider the mental processes caused the remission. The mere fact of the failure to investigate was not sufficient.

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42

253. On the facts that we have before us; we have considered the interview notes [pg 1229] the explanation given is that the email was missed.

254. In the circumstances and making a decision on the balance of probabilities it is possible that an email, including an important one can be missed by a busy manager. We do not see what [NAME] [NAME] if she was motivated by something inappropriate would hope to achieve by ignoring such a formal and clearly important piece of correspondence. All she would achieve is more difficulties, more scrutiny and more criticism. Not dealing with the email would always result in the Claimant taking further action. Therefore, this is not related to disability and the claim is dismissed.

255. Issue 4.1.4 - On 10th January 2024- we have already found on the facts that there was not a failure to make reasonable adjustments. However, this allegation includes an allegation of hostility. The pleaded case contains detail as to what is meant by hostility. Both the Claimant and [NAME] [APPELLANT] have problems regarding their credibility and their recollection of events. The Claimant has not proven the words that she attributes to [NAME] [NAME].

256. Issue 4.1.7 - On 10th January 2024 – the words ‘lifestyle and not your health’ was used. [NAME] evidence was that accepts that she did refer to it but does not recall doing so. In cross examination, her answer was that she does recall the meeting but that she put an end to it as both she and the Claimant were talking at each other and getting nowhere. The surrounding facts are that [APPELLANT] perceived the Claimant as prioritising external factors outside of [RESPONDENT] over her [RESPONDENT] role. This was an argument with competing views. It was unwanted conduct but it was not related to the Claimants disability. Indeed, the comment was pointing to factors which are external to the Claimant’s disability. If we are wrong on ‘related to’ then we do not consider that the words used had the proscribed effect as set out in s.26. Two people disagreeing in circumstances where they are putting competing contentions to the other does not meet the threshold for harassment. To so find would place the threshold far too low. The fact it is an argument with competing contentions doesn’t in and of itself mean it can’t be harassment, but the statement made was not of a nature that would be self-evidently harassing and therefore the context as to why it does not fall within s.26 is important.

257. Issue 4.1.5 - On 1st March 2024 - we have already found on the facts that there was not a failure to make reasonable adjustments. However, this allegation includes an allegation of hostility. We are left to infer what the hostility is. The pleaded hostility is asking the Claimant about where she was going. We do not find this to be related to the Claimants disability; this was a necessary interaction by a manager managing one of their staff.

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43

258. Issue 4.1.10 - On 8th May 2024 – it is alleged that [NAME] [APPELLANT] was hostile with the Claimant on the [NAME] floor after her appeal meeting with [NAME] [APPELLANT]. The Tribunal has heard limited evidence on this point. [NAME] [NAME] denies mentioning it to [NAME] [NAME] and we consider [NAME] [NAME] to be a credible witness on this point, particularly given the findings he was prepared to make that were adverse to [RESPONDENT]. It is for the Claimant to provide the detail and prove the fact of the allegation. The fact of [NAME] [NAME] being hostile on this occasion has not been established, nor has any causation been established between a protected characteristic and this event. We do not uphold this allegation. Victimisation

259. The [APPELLANT] accepted in its amended grounds of resistance that the following amounted to protected acts:

a. Issue 5.1.2 - Commencing ACAS Early Conciliation on the 31st August 2023 b. Issue 5.1.13 - Submitting an [NAME] in October 2023 c. Issue 5.1.14 - Submitting an [NAME] in May 2024 d. Issue 5.1.17 (this is numbered twice and therefore should be 5.1.18) - Lodging Tribunal claims – though it is not clear why this is distinct from

the protected acts already noted above.

260. This concession is plainly too restrictive and we consider the majority of the potential protected acts to be to be protected acts. A protected act is widely defined within s.27 Equality Act 2010. The [APPELLANT] was repeatedly asserting her rights under the Equality Act 2010.

261. The broadest and most favourable interpretation of the [APPELLANT] case is proceeding on the basis that the detriments occurred because of the weight of the protected acts rather than specific evidence linking one act to one detriment. The Claimant has not sought to persuade us that a particular protected act stands out as being particularly causative of a particular detriment.

262. In making the findings that we do, we have considered each matter individually, that is to say as an individual claim, but we have also considered the question of totality. That is to say we have considered whether the combined or cumulative effect of the matters that were protected acts led to a detriment.

263. We have also given particular thought as to the relevance of our findings on the extent to which there were problems between the Claimant and [NAME] [APPELLANT] and [NAME] [APPELLANT]. We have also considered the relevance of the extent to

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44 which the initial approach of the [APPELLANT] was to minimise these concerns. Our general view is that the Claimant was not being targeted whether consciously or subconsciously. Rather, there was poor management in circumstances, with individuals, both the Claimant and those managing her not effectively communicating with each other.

264. Issue 5.2.1 - is an allegation that on the 1st September 2023, [NAME] [APPELLANT] ignored the Claimant’s reasonable adjustment plan. We have already made findings regarding reasonable adjustments and have not found the [APPELLANT] in breach of the duty to make reasonable adjustments. However, we would also record that the very first protected acts relied upon are the Claimant speaking to [APPELLANT] on the 31st August 2023 and the Claimant contacting ACAS on the same day. A further conversation with [NAME] [NAME] on the 1st September 2023 is also relied upon. These are the only matters that pre-date or have the same date of the 1st September 2023. There is no evidence before the Tribunal that on the 1st September 2023 [NAME] was aware of any of these three potential protected acts. This claim must be dismissed.

265. Issue 5.2.2. - We have made findings of fact that [NAME] [APPELLANT] did speak regarding the Claimant to [APPELLANT] and [APPELLANT]. What was said does amount to a detriment. To have your manager speak negatively about you to a work colleague is detrimental to you.

266. The issue here is causation. The vast majority of protected acts are after September 2023 with only a small number being prior to this.

267. The evidence before us was that the lack of trust between the Claimant and [NAME] [APPELLANT] pre-dated the protected acts relied upon. For example, we find that there were problems as far back as 2022. [NAME] [APPELLANT] wariness of the Claimant stemmed from the Claimant’s accident. The Claimant has not proven that [NAME] [APPELLANT] was aware of any of the listed protected acts by this unspecified date in September 2023.

268. Therefore, this claim fails on causation and is dismissed.

269. On this particular issue, although we have dismissed this claim as victimisation, because of causation, we wish to be clear that the Claimant was entitled to be managed by a manager who did not have suspicions about her or consider that she needed to be defensive. We do not consider the behaviour or the actions of [NAME] [NAME] to have been acceptable.

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45 270. Issue 5.2.3. - for the reasons already given, this detriment is not proven on the facts. The Claimant was not locked out by [NAME] [APPELLANT]. The distinction that we draw is that we think it is more likely than not that [NAME] [APPELLANT] would express her frustrations verbally about the Claimant to others in a way that she should not but we do not consider for the reasons we have already given that it is more likely than not that she would go to the extreme step of positively and deliberately prevent the Claimant from entering the [NAME].

271. Issue 5.2.4 - This appears to cover more than one point. In relation to [NAME] expressing concern regarding whether it was operationally viable for the Claimant to work on the [NAME] floor, we do not consider this to amount to a detriment. There was a legitimate question over the extent to which the Claimant was fit to work on the [NAME] floor. By October 2023, the Claimant was using a walking stick all of the time whilst at work in a job that was essentially manual labour. It is essential that employers and employees can have open, sensible discussions regarding such matters. [NAME] was entitled to ask about and consider the extent to which the Claimant was able to fulfil her role. An open conversation about such matters goes beyond mere tick boxing and OH advice. It is not detrimental for that conversation to take place.

272. The next part relates to the conduct of [NAME] [NAME] and [NAME] [APPELLANT] after the meeting. We do not find that the Claimant was assigned inappropriate tasks or that reasonable adjustments were not made. With regard to the allegation of hostility we do not accept that this occurred after this meeting.

273. Issues 5.2.5, 5.2.6 are not established as detriments for reasons already given in relation to the reasonable adjustments claim.

274. Issue 5.2.7. - We have already made findings in relation to the failure of [NAME], failing to reply to the email. It has not been shown that the cause of this was a protected act.

275. Issue 5.2.8 - this detriment has not been established on the facts, but even if it had been, causation has not been established. The detriment is somewhat nebulous. We recognise that we have found that there were problems in this relationship but both parties were responsible for this, caused by non discriminatory factors such as a failure to communicate effectively or to see a situation from the other persons perspective and it is not causatively linked to a protected act.

276. Therefore, all the claims of victimisation are dismissed. Has the Claimant Conceded the Reason for Dismissal?

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46 277. In submissions, the [APPELLANT] submitted, having read the [APPELLANT] written submissions, it appeared that there was a concession that the dismissal was for reason of capability.

278. The words used by the Claimant do appear to concede this point. At the same time, the written submissions also refer to the whistleblowing claim. Read in the round, the submissions are contradictory.

279. Recognising that the Claimant is unrepresented, we consider that the most appropriate course of action given that we have heard all the evidence, in circumstances whereby the claims appear to be maintained notwithstanding an apparent concession, is to go on to consider the evidence as we otherwise would have done had the ambiguity not arisen.

Automatically Unfair Dismissal – s.103A Employment Rights Act 1996 & The Reason for Dismissal for Ordinary Unfair Dismissal

280. The [APPELLANT] asserts that her dismissal was automatically unfair in that the reason or principal reason for the dismissal was the fact that she made a protected disclosure.

281. The protected disclosure relied upon is the correspondence of the 23rd and the 27th January alleging fraud.

282. We consider that much of that correspondence can be said to be hyperbole and accusation and not a disclosure of information.

283. However, parts of the correspondence do refer to the [APPELLANT] not meeting its legal obligations to disclose documents and it states what those documents are. That is a disclosure of information.

284. That disclosure of information relates to a legal obligation. I.e. the duty to disclose documents.

285. It is in the public interest that a party meets its disclosure obligations in litigation.

286. Applying the mixed subjective/objective test derived from [NAME] v Waltham Forest College [2007] ICR 1026, we would find that much of that correspondence does not meet the second limb of the test, namely that it is objectively reasonable to believe that there was fraud or similar serious wrongdoing.

287. However, taking the ‘lower level’ assertion of simply not complying with disclosure duties then that is capable of meeting both limbs of the [NAME] test.

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47

288. Therefore, there is a public interest disclosure, albeit more limited than is suggested.

289. We now must determine whether the reason or principal reason for the Claimants dismissal was that protected disclosure.

290. Our finding is that no connection between the disclosure relied upon and the dismissal. The Claimant advanced little express evidence before the Tribunal in support of this assertion.

291. We note for example that some of the evidence of pre-Judgment relied upon by the Claimant (e.g. the [NAME] entry of the 28th October 2024) predates the protected disclosure relied upon. We deal with that as part of our consideration under s.98(4) below.

292. Although the case was not expressly run on this basis, we have considered whether this was a [NAME] v Royal Mail Group [2019] UKSC 55 type situation either. Such a contention could be inferred from the Claimant’s cross- examination and submissions regarding the influences of others on the decision of [NAME] [NAME], albeit that contention is based in part on matters pre- disclosure.

293. The set of facts (c.f. [NAME] v [NAME] [1974] IRLR 323) known to [NAME] [NAME], which was the set of facts also known on appeal was the length of the Claimant’s long term ill health absence and the lack of any meaningful prognosis or timeframe to return. These were the core facts that led to the dismissal. That is a set of facts/state of affairs that was objectively true and not influenced by any protected disclosure.

294. We do not consider this to be a dismissal where the reason or principal reason for the dismissal is a protected disclosure as provided for by s.103A ERA 1996; however causation is put.

295. Rather, the [APPELLANT] has proven that the reason for dismissal was capability. Capability is a potentially fair reason for dismissal. Although this finding is made for the purposes of the ordinary unfair dismissal claim, it is convenient to provide reasons for this determination at this point.

296. We do not assess reasonableness at this stage. Rather, we must consider what was in the mind of the [NAME] decision makers.

297. The [NAME] decision makers had capability in mind when taking the decision to dismiss. The reason that the hearings were taking place was the

Case No. 2410963/2023, 2402896/2024 & 2401955/2025

48 [APPELLANT] absence from work and her lack of capability to do the work she was employed to do.

298. The fact that the [APPELLANT] was following a capability process is not conclusive of the Tribunal finding that this was the reason for dismissal.

299. We have also considered the assertion of pre-Judgment at this stage and whether it could be something in respect of which would influence our findings in respect of the dismissal. It does not.

Victimisation Dismissal

300. We give our reasons in respect of 5.2.9 of the issues at this stage because it relates to the dismissal. The [APPELLANT] alleges that the dismissal was because of the protected acts listed.

301. The [APPELLANT] has not proven that her dismissal was because of one or more of her protected acts.

302. The reason for the [APPELLANT] dismissal was the level of her absence and the lack of a clear return period. We are clear that this was the basis for the dismissal of the Claimant by [NAME] [APPELLANT].

303. [NAME] [APPELLANT] nor [NAME] [NAME] were in any way influenced by any of the protected acts. We consider them to be separate and removed from the points of criticism we have made elsewhere in this Judgment.

304. There is no link either conscious or sub consciously between the protected acts and the dismissal.

Unfair Dismissal – s.98(4) Employment Rights Act 1996 305. Having found that the reason for dismissal was capability, we now move on to consider reasonableness as provided for in s.98(4) ERA 1996.

306. We proceed on the factual assumption that the underlying knee injury was as a result of a workplace accident for which the [APPELLANT] was the cause. We direct ourselves in accordance with [NAME] v [COMPANY] [2007] EWCA Civ 806 as to the need for the employer to ‘go the extra mile’ in circumstances whereby the employer is the cause of the illness.

307. The [APPELLANT] case is that the [APPELLANT] should have retained her for a period of around 12 months. Her position is that this would not be a cost to the [APPELLANT].

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49 308. We do not accept this submission regarding the 12-month period. That would be significantly beyond what could reasonably be expected of the [APPELLANT]. There would be an ongoing cost to the [APPELLANT] in the form of holiday pay and the [APPELLANT] would be required to allocate continued management time and other resources to the management of the Claimant and her absence.

309. However, particularly taking into account the fact that the Claimant is unrepresented, we do not confine ourselves to this submission. We have actively considered whether there was a shorter, more reasonable period in respect of which the [APPELLANT] could be expected to wait before taking the decision to dismiss, whilst reminding ourselves, that the [NAME] test is whether the decision to dismiss was within the range of reasonable decisions open to the [APPELLANT].

310. Having considered whether the [APPELLANT] could reasonably be expected to wait longer, we consider that it was within the range of reasonable decisions open to the [APPELLANT] to dismiss the Claimant for capability when it did. The medical evidence at the time was that there was no identified period in respect of which the Claimant could reasonably be expected to return to work. This was a period of long-term sickness without any reasonable period of return.

311. In her oral evidence before us, the Claimant agreed with this medical position. She also agreed that this was the medical position at the time of her appeal and the considerations remained the same.

312. There was no suitable alternative work. Nor was it suggested that there was any suitable alternative work.

313. The Claimant makes additional points, which require serious consideration. She submits that her dismissal was pre-judged. She relies upon the entry on the 28th October 2024 on the [NAME].

314. [NAME] [NAME] and [NAME] [NAME] were questioned regarding this. [NAME] [NAME] position was that he was not influenced by anyone else. However, his witness evidence was somewhat vague on the wider detail surrounding this point. There were additional conversations with [NAME] that are not in his witness statement or evidenced in any other way. The contents of those conversations remain vague.

315. [NAME] [NAME] in particular was an impressive witness on this point. He was unequivocal that he felt completely empowered to allow any appeal against dismissal as he saw fit and had done so in the past.

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50

316. We have considered whether the dismissal was pre-judged. The entry in the [NAME] is a concern and we have not heard live evidence from the [NAME].

317. s.98(4) ERA 1996 requires us to assess the dismissal as a whole, applying the range of reasonable responses. Having done so, we conclude that the dismissal was fair.

318. In light of our earlier findings, it is also important to record some additional points. Firstly, there is no s.15 Equality Act claim before the Tribunal regarding the dismissal. It is not in the list of issues. This was raised at the outset with the parties and this position was confirmed.

319. Secondly, because of the somewhat unusual factual scenario, we record that we do not find the dismissal to be unfair because of our findings regarding the first written warning.

320. We consider the dismissal to be separate from the first warning. The Claimant was aware that her employment was at risk and the Claimant was aware of the medical position with regards to the lack of a return within a reasonable period.

321. The Claimant has not proven a link between the earlier conduct of employees of the [APPELLANT] and the absence that led to her dismissal. The Claimant has a serious knee injury. We have proceeded on the assumption that the knee injury is a workplace injury but beyond that, we must work on the evidence. We note that the April 2024 GP letter which seeks to provide a historical overview post 2022 states “unable to comment on whether the injury being worse now than it originally was as this was not found in her consultations, however her level of pain has increased.”[pg 891] whether this is a quote from the GP or the GP recording the position of [NAME], the link between post accident events at work and the dismissal have not been proven.

322. Finally, in respect of the [NAME] point regarding the need to go the extra mile, we find that the [APPELLANT] did this. There was no sensible path forward and nothing more could reasonably be expected other than maintaining the Claimant’s employment indefinitely. Such a finding is not sensibly open to the Tribunal.

Holiday Pay

323. The Claimant bears the burden of proof to prove the basic facts of her holiday pay claim. However, we also recognise in [NAME], a claim for

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51 holiday pay or wages can be dependent on the documents disclosed by the [APPELLANT]. We have commented on the [APPELLANT]’s disclosure on this point above.

324. The position of the [APPELLANT] is that the Claimant has been paid her holiday pay in full. [NAME] [APPELLANT] witness statement provides a calculation but does not reference a document.

325. There is little positive case advanced by the Claimant beyond the bold suggestion that it is not correct.

326. Notwithstanding our reservations about the lack of cross-referencing in the witness statement of [NAME] [APPELLANT], on first principles, the Claimant has not discharged her burden of proof to demonstrate that upon termination she was paid less than her entitlement would have been. Therefore, this claim is dismissed. Final Thoughts

327. The role of the Tribunal is to find facts and then apply the law to reach conclusions on the claims that have been made. Taking a step back from this Judgment, it is apparent that whilst we made criticisms of the [APPELLANT], the facts found did not fit within the statutory framework save in relation to two of the s.15 claims.

328. We recognise that this process has been a long one with the first claim submitted in 2023. We would urge the parties to resolve their outstanding disputes and enable everyone to move on with their lives.

_____________________________

Employment Judge Anderson

20th May 2026

JUDGMENT SENT TO THE PARTIES ON

8 June 2026

FOR THE TRIBUNAL OFFICE

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52

Notes

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimant(s) and [APPELLANT](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 No. 2410963/2023 2402896/2024 & 2401955/2025

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

HELD AT:

Employment Judge [NAME] [NAME]:

Claimant: [redacted]

In Person

[NAME] [COUNSEL] (Counsel)

JUDGMENT

The unanimous Judgment of the Tribunal is that

1. The claims of discrimination arising from disability as provided for in s.15 Equality Act 2010 are well founded in respect of the written warning and the refusal of the appeal against the written warning. The Claimant is entitled to a declaration that she was discriminated against. All other s.15 Equality Act 2010 claims are not well founded and are dismissed.

2. The claims of a failure to make reasonable adjustments as provided for in s.20 & 21 of the Equality Act 2010 are not well founded and are dismissed.

3. The claims of disability related harassment as provided for in s.26 Equality Act 2010 are not well founded and are dismissed.

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4. The claims of victimisation as provided for in s.27 Equality Act 2010 are not well founded and are dismissed.

5. The claim of automatically unfair dismissal under s.103A Employment Rights Act 1996 is not well founded and is dismissed.

6. The claim of unfair dismissal is not well founded and is dismissed.

7. The claim for unpaid holiday pay under the Working Time Regulations 1998 is not well founded and is dismissed.

8. This matter will now be listed for a remedy hearing with a time estimate of 1 day. A Notice of Hearing will be sent out in due course. The parties are directed to a) no later than 21 days prior to the remedy hearing agree a short bundle of any additional documents to be placed before the remedy hearing and b) No later than 14 days prior to the remedy hearing exchange any witness statements relied upon by either side relating to remedy.

_____________________________

Employment Judge Anderson

18th February 2026

JUDGMENT SENT TO THE PARTIES ON

15 April 2026

FOR THE TRIBUNAL OFFICE

Notes

Case No. 2410963/2023 2402896/2024 & 2401955/2025

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Recording and Transcription

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