Unlawful Deductions Allowed, Discrimination Claims Struck Out in Employment Case

OUTCOME: Allowed in Part

Case Number: 2401525/2024

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents :

[redacted]

Manchester On: 2, 3, 4, 5 March 2026 and 7 April 2026 in chambers Before: Employment Judge Cookson Mrs [NAME]:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT

1. By consent the claim for unlawful deductions from wages from the claimant's wages in the period from 25 December 2023 to 24 January 2024 succeeds. By consent the respondent is ordered to pay to the claimant the gross sum of £839. The claimant is responsible for the payment of any tax or National Insurance.

2. It is the unanimous decision of the Tribunal that

a. The complaint of direct disability discrimination is not well-founded and is dismissed. b. The complaint of harassment related to disability is not well-founded and is dismissed. c. The claim for holiday pay against the first respondent, which was not actively pursued before this tribunal, is not well founded and is dismissed.

Case Number: 2401525/2024

2

Reasons

Introduction 1. This is a case brought by Ms [APPELLANT], the claimant, who is a [NAME]. She brought various complaints of disability discrimination against [NAME] ([RESPONDENT], the first respondent, a [NAME] company providing [NAME] to vulnerable adults; Mr [RESPONDENT], the second respondent, who is the owner and managing director of the first respondent and is also the “responsible [APPELLANT]” for regulatory purposes; and Mrs [APPELLANT] who is the first respondent’s [NAME] manager. Ms [APPELLANT] also claimed unpaid wages and holiday pay from the first respondent.

2. The claimant worked for the respondent between 16 February 2023 and 13 January 2024. She undertook early conciliation between 11 and 13 March 2024 and the claim was lodged on 18 March 2024.

3. In the course of the hearing, the first respondent withdrew its argument that the claimant’s contract with the first respondent was tainted by illegality and consented to a judgment being made in favour of the claimant in respect of the wages she has claimed in the sum of £839. There is a complaint for holiday pay in the list of issues but it is only pleaded in general terms by the claimant’s former solicitors and the claimant has failed to offer any evidence about the holiday she has taken or been paid for in her witness statement, the amount claimed or offered any other evidence which would enable the tribunal to consider that complaint. We therefore concluded that that complaint had not been actively perused.

4. These reasons explain how the Tribunal dealt with the discrimination complaints.

5. There was a case management hearing on 2 December 2024 before Employment Judge Benson at which the legal issues in this case were identified. The claimant had been represented by solicitors when her claim was lodged and she was represented by counsel at that hearing. The usual sort of case management orders had been made, including for disclosure of documents and for witness statements, with a sensible timetable.

6. By the time of this hearing the claimant was representing herself. The case management timetable had not been complied with and, despite the time that has lapsed since the case management hearing, it was clear that matters such as exchange of documents, preparation of the agreed witness statements and bundles had been left until very late in the day. The claimant blamed the respondents for that, but the claimant herself had failed to comply with the case management orders in a number of key respects. This Tribunal did the best it could to consider the case within its allocated trial window.

Case Number: 2401525/2024

3 7. The case management orders had made clear what information the claimant needed to disclose to establish she was a disabled [APPELLANT] including identifying what questions should be answered in a witness statement explaining the impact of the claimant’s mental impairment on day-to-day activities. The case management orders are also clear about what is required in terms of the scope of the liability witness statement including that the claimant would need to set out all facts she relied upon to support her claims. Regrettably the claimant did not comply those orders. Ms [APPELLANT]’ “disability impact statement” did not address the matters Employment Judge Benson had identified and instead referred to the alleged impact of treatment by the respondents. Despite the respondents’ solicitor seeking to point that she had failed to address the correct issues and inviting her to revisit that, the claimant failed to produce a statement as ordered. Her witness statement on the liability issues failed to set out any particular detail and did not cross refer to the bundle. The claimant told us that she had been pampered in preparing the statement due to the inaction of the respondent and her difficult personal circumstances and the pressure she had been under as a result in the weeks leading up to this hearing. However, on any measure the claimant had not done what she should have done to comply with Employment Judge Benson’s orders.

8. From the outset of the hearing the respondent made clear its intention to make an application for the discrimination complaints to be struck out because they had no reasonable prospect of success.

9. The Tribunal was concerned that despite the fact she had previously been represented, Ms [APPELLANT] had not fully appreciated the legal issues to be determined and what was required by the case management orders. We anticipated that perhaps the fact Ms [APPELLANT] had been represented at case management meant she may not have received the same sort of explanations from the judge that she would have received about the process as a litigant in [APPELLANT].

10. The judge spent some time going through the legal issues in relation to the discrimination complaints to clarify Ms [APPELLANT]’ case. Ms [APPELLANT] was given the opportunity to identify other documents which might set out her evidence in chief, including on disability. In particular Ms [APPELLANT] has given the opportunity to identify any documents before the tribunal which the Tribunal could refer to understand her evidence about the impact of her mental impairment on day-to- day activities, for example by reference to information recorded in the medical records and to explain her discrimination case which given the lack of detail in the witness statement. The hearing was concluded early on the first day to give Ms [APPELLANT] time to go through documents before any strike out application from the respondents was determined.

11. On the second day of the hearing the claimant produced a large number of additional documents, although after going through these with her very few seemed to be relevant to the legal issues. A small number of additional documents were admitted into evidence. Regrettably the claimant had made little effort to do what had been agreed with her by the Tribunal to clarify her case. After further discussion it was agreed that she would be allowed to rely

Case Number: 2401525/2024

4 on the detailed particulars of claim document attached to her claim form in addition to her witness statement.

12. The respondent pursued its strike out application. For reasons which were given in an oral judgment, the tribunal determined that all but one of the claimant’s discrimination complaints had no reasonable prospect of success and they were struck out. A separate judgment has been promulgated in relation to that. The remaining discrimination complaint, pleaded in the alternative, was that the claimant was either directly discriminated against because of her disability or she was subject to harassment related to her disability when her pay was withheld for the period 25 December 2023 to 21 January 2024.

13. The Tribunal granted permission for Ms [APPELLANT]’ witnesses to attend the hearing to give evidence remotely because they had not attended the hearing. Despite Ms [APPELLANT] being allowed more time to secure their attendance after completion of her cross examination, both of her witnesses failed to attend the Tribunal. Mr [NAME] evidence and cross examination was completed on 4 March.

14. Ms [APPELLANT] attended the hearing supported by a friend on the morning of 5 March. She explained that a close family member had died the night before and she applied for an adjournment of the hearing. As noted, by this stage Ms [APPELLANT]’ evidence had been completed, as had Mr [APPELLANT]. We were only due to hear from Ms [RESPONDENT] and after discussion about how to proceed, Mr [RESPONDENT] told us that the respondents would not call Ms [RESPONDENT] to give evidence, accepting the risk that the Tribunal might decide to attach little weight to her witness statement.

15. Although extremely sympathetic to Ms [APPELLANT]’ situation, the Tribunal were mindful of the overriding objective. Very significant amounts of time had been lost to the hearing in allowing Ms [APPELLANT] additional time to clarify her case and secure attendance of her witness. By that stage the respondents had conceded that Ms [APPELLANT] should be paid the amount of wages she claimed, so the outstanding issues were relatively limited, albeit including a serious allegation of discrimination. The Tribunal had all of the evidence. Ms [APPELLANT] wanted us to adjourn day 4 and resume the hearing on day 5 but we were concerned that if she was not able to engage with the issues on day 4 due to the impact of bereavement, that was unlikely to change by the next day. Adjourning the case beyond that risked very significant delay given current case lists in the Manchester Tribunal and that would not be in accordance with the overriding objective.

16. After discussing all of the options with Ms [APPELLANT] and her friend, it was agreed that we would proceed on the basis that we would hear oral submissions from Mr [RESPONDENT], which Ms [APPELLANT]’ friend could record, and then Ms [APPELLANT] would make written submissions in a few weeks’ time. The Tribunal was aware from her correspondence that Ms [APPELLANT] can express herself clearly in correspondence and indeed we found her arguments were often easier to follow in writing that in oral explanations. The Tribunal agreed with the parties that the Tribunal would then reconvene to reach its decision on the remaining discrimination

Case Number: 2401525/2024

5 complaints and produce a reserved judgment. Ms [APPELLANT] subsequently provided written submissions and gave no indication that this had presented with her any difficulty. The respondents did not provide any formal reply, but did invite the Tribunal to consider if the submissions were consistent with our record of the evidence given.

17. On the morning of day 4 Ms [APPELLANT] also sought to leave to introduce further documents into evidence. However, by that stage the Tribunal had completed her evidence and cross examination, Mr [APPELLANT] who had made the decision not to pay Ms [APPELLANT] her wages,the remaining alleged discriminatory act, had given his evidence and been cross examined and the respondents had decided no evidence from Mrs [APPELLANT] was required. Ms [APPELLANT] had not provided any additional witness evidence to explain any additional document or why she had not disclosed these documents earlier in the week given se had been given more time at the beginning of the week and indeed had produced a significant number of additional documents then. If new documents were to be introduced we would need additional evidence from Ms [APPELLANT], despite the fact she had told us she was not able to participate in this hearing and to enable cross- examination. Mr [NAME] might also need to be recalled to give him the opportunity to address new documents put forward by the claimant. It was hard to see how this would be proportionate. The potential problems with Ms [APPELLANT] seeking to introduce additional documents were explained by the judge. Mr [RESPONDENT] made clear he would object to the introduction of new documents and to any suggestion that witnesses should be recalled. In the circumstances the application to introduce new documents was not pursued.

Evidence considered in reaching our decision 18. In reaching our decision we took into account the following: a. A joint bundle of documents running to 238 pages to which a small number of additional documents were added as explained above; b. Oral and written evidence from Ms [APPELLANT] and [NAME]; c. Written statements from Mrs [APPELLANT] [NAME] and Mr [APPELLANT] for the claimant and from Mrs [APPELLANT]; d. Oral submissions from Mr [RESPONDENT]; e. Written submissions from Ms [APPELLANT].

The weight we could attach to written statements 19. The statement of Mrs [NAME], insofar as it contains evidence relevant to the remaining complaint of discrimination, contains no direct evidence. All of her evidence is hearsay. This witness reports what she believes has happened based on what she has been told by Miss [APPELLANT]. For that reason even we had had sworn evidence from her we would have been able to attach very little weight to the evidence in question.

20. Mr [APPELLANT] is the former partner of Miss [APPELLANT]. His statement purports to give evidence about the nature and severity “of the impact”. He does not explain what he means by that. He refers to Miss [APPELLANT]’ distress and a “loss of independence and identity” he had observed, and he refers to the impact on

Case Number: 2401525/2024

6 their relationship. There are no dates in his statement. At best as this Tribunal can understand what is recorded, Mr [APPELLANT] is reporting a breakdown in Ms [APPELLANT]’ health after the events that she complained about in her tribunal claim form. In the circumstances his evidence only tells us how stressful the claimant has found life and the difficulties in managing her medical condition after her engagement with the respondent concluded. This is not evidence which assisted us determining questions of liability.

21. In terms of the statement of the third respondent, Ms [APPELLANT], we recognised that Ms [APPELLANT] disputed her evidence and wanted to cross examine her. We took that into account in considering how much weight to attach to Ms [NAME] evidence.

The Law Disability 22. The definition of a disabled [APPELLANT] is set out in section 6 of the Equality Act 2010 which provides that “a [APPELLANT] (P) has a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.

23. This definition is supplemented by the provisions of Schedule 1 and the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” issued by in April 2011 (the Guidance).

24. The time at which to assess whether a [APPELLANT] has a disability is the date of the alleged discriminatory act. The word ‘substantial’ has been defined in the Guidance as being “more than minor or trivial” reflecting “the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people.” 25. Paragraph 2 of Schedule 1 provides that: “(1) The effect of an impairment is long-term if— (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the [APPELLANT] affected. (2) If an impairment ceases to have a substantial adverse effect on a [APPELLANT]’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.” 26. In considering whether an effect is likely to recur for the purpose of paragraph 2(2) the House of Lords has determined that likely means “could well happen” rather than “more likely than not” [COMPANY] v Boyle [2009] IRLR 746.

Case Number: 2401525/2024

7 27. Paragraph 6 of Schedule 1 provides that in considering whether or not an impairment had a substantial adverse effect on the ability of a [APPELLANT] to carry out normal day to day activities, the effects of medical treatment should be ignored, and it is necessary to consider the normal day to day activities which the individual will not be able to undertake without the medical treatment. The focus is on the things that the claimant cannot do or can only do with difficulty rather than on the things that she can do. When assessing the effect of an impairment, the comparison is between the way the claimant carries out the activity in question and how she would carry it out if not so impaired.

28. Meaning of employment in the Equality Act (2)“Employment” means— (a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;….

29. The definition of employment under S.83(2) is substantially wider than the corresponding definition in S.230(1) of the Employment Rights Act 1996 (ERA), with the result that protection from discrimination has a much broader sweep than protection from, for example, unfair dismissal and redundancy.

Burden of Proof

30. Section 136 of the Equality Act 2010 states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a [APPELLANT] (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule.

(5) This Section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to – (a) An Employment Tribunal.”

31. Pre- Equality Act 2010 House of Lords decision of Igen v Wong [2005] IRLR 258 set out a two-stage test tribunals must apply when deciding discrimination claims. This two-stage approach was discussed in the Court of Appeal decision of [NAME] v [COMPANY] [2007] EWCA 33, with guidance being provided by Mummery LJ. Since the Equality Act 2010 (although the burden of proof provisions differs in wording to the test set out in Igen), the [NAME] have repeatedly approved the application of the guidance set out by Mummery LJ in [NAME]. In summary the first stage is where the

Case Number: 2401525/2024

8 burden of proof first lies with the claimant who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non-discriminatory) explanation that the respondent had discriminated against him. If the claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the claimant and the respondent, to see what proper inferences may be drawn), then the burden shifts, and the respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The respondent will have to show a non- discriminatory reason for the difference in treatment.

32. Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 (per [NAME] LJ at paragraph 12).

33. The approach laid down by section 136 EqA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of section136 does not come into the equation: see [NAME] v Devonshire Solicitors [2011] ICR 352 (per Underhill J at paragraph 39), approved by the Supreme Court in [NAME] v Grampian Health Board [2012] ICR 1054 (per [NAME] at paragraph 32).

34. It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in [NAME] v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.

Harassment

35. Section 26, EQA 2010 sets out the legislative framework for harassment: “(1) A [APPELLANT] (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant 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 […..]

36. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

Case Number: 2401525/2024

9 37. In [NAME] v Dhaliwal [2009] ICR 724 the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment: (a) Did the employer engage in unwanted conduct, (b) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her, (c) Was that conduct on the grounds of the employee’s protected characteristic?

38. In a case of harassment, a decision of fact must be sensitive to all the circumstances. Context is all-important. For example, the fact the conduct is not directed to a claimant herself would be a relevant consideration, although this does not necessarily prevent conduct amounting to harassment and will not do so in many cases.

39. [NAME] v Dhaliwal confirmed that not every comment that is slanted towards a [APPELLANT]’s protected characteristic constitutes violation of a [APPELLANT]’s dignity etc. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase.

40. Mrs Justice Slade’s comments on how a Tribunal should approach the words “related to the protected characteristic” are helpful in the EAT decision of [NAME] v [NAME]) t/a Stage Coach Manchester [2018] IRLR 906, [2018] ICR 1481 (EAT). She says, whilst it is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant – “related to” such a characteristic includes a wider category of conduct and as such requires a broader enquiry when making a decision (see paragraph 31).

41. Tribunals must not devalue the significance of the meaning of the words used in the statute (i.e., intimidating, hostile, degrading etc.). They are an important control to prevent trivial acts causing minor upset being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. ([NAME] v Land Registry [2011] IRLR 748).

42. Considering whether there has been harassment includes both a subjective and objective element. Underhill J in Pemberton v Inwood [2018] EWCA Civ 564 summarised the position as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub- section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b))”

43. Section 212(1) EqA says “detriment does not, subject to subsection (5)include conduct which amounts to harassment.”

Case Number: 2401525/2024

10 44. Section 212(5) EqA says “Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.”

45. Section 212 EqA means that an action that is complained of must be either direct discrimination or harassment, but it cannot be both. Equally such an action cannot be both harassment and victimisation. It must be one or the other. This is because the definition of detriment excludes conduct which amounts to harassment.

Direct discrimination

46. s13 EqA

“(1) a [APPELLANT] (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” There are two parts of direct discrimination: (a) the less favourable treatment and (b) the reason for that treatment. Sometimes however it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – [NAME] v [NAME] of the Royal Ulster Constabulary [2003] UKHL 11.

“Because of”: reason for less favourable treatment

47. In terms of the required link between the claimant’s protected characteristic and the less favourable treatment she alleges, the two must be “ inextricably linked” - [NAME] v [NAME] acting on behalf of [NAME]: ECLI:EU:C:2017:278.

48. The test is not the “but for” test, in other words it is not sufficient that, but for the protected characteristic, the treatment would not have occurred – [NAME] v Eastleigh Borough Council [1990] IRLR 288.

49. The correct approach is to determine whether the protected characteristic, here sex and or disability, had a “significant influence” on the treatment – [NAME] v London Regional Transport [1999] IRLR 572. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief [NAME] of West Yorkshire Police v Khan [2001] UKHL 48. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

50. If there is more than one reason for the treatment complained of, the question is whether the protected characteristic relied upon was an effective cause of the treatment – [NAME] v [NAME] of St Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372.

Case Number: 2401525/2024

11

Factual findings

51. When Ms [APPELLANT] began employment she disclosed that she had a history of anxiety and suffered from depression but said that this was under control. She referred in a medical questionnaire to taking sertraline.

52. In July 2023 Ms [APPELLANT] and [NAME], as noted her partner at the time, asked if they could become “self-employed”. That was agreed. A P45 was issued on 10 July 2023. Both were told they would need to register with HMRC as self- employed, which Ms [APPELLANT] accepts that she failed to do, but no new contract was put into place. There is no suggestion that Ms [APPELLANT] was able to offer a substitute to provide services on her behalf. Ms [APPELLANT] seems to have taken on no risk in terms of making a profit which might suggest she was in business on her account. Essentially it seems that Ms [APPELLANT] continued working for the first respondent as she had before. The only change was that each month [NAME] would send Ms [APPELLANT] a note of the hours she had worked so that Ms [APPELLANT] could prepare an invoice which she would submit for payment, rather than being paid through PAYE for hours worked as before.

53. In matters which are now background only, concerns were raised about the conduct of a particular service users’ wife in a residential setting where Ms [APPELLANT] often worked, along with other staff including Mr [NAME]. This led to some staff also raising concerns about Ms [APPELLANT] and her conduct in that service users’ home. They were asked to put concerns in writing. Those concerns were not shown to Ms [APPELLANT], but [NAME] and Ms [APPELLANT] met with her to discuss them. Ms [APPELLANT] was not warned about that advance of the meeting and had thought it was going to be a routine supervision. Ms [APPELLANT] told us that the concerns raised were without foundation and the meeting was hostile. She also made other accusations against Mr [NAME] and Ms [NAME] about what happened in the meeting. Significantly however she has failed to give evidence of any fact which could suggest a connection to her disability. Rather she alleged that what happened was unfair and stemmed from the fact some staff did not like her and those staff were personal friends with Mr [APPELLANT]. Insofar as this related to her disability Ms [APPELLANT] described herself as having a “marmite” personality, but the Tribunal could not see that was something which was intrinsic to the alleged disability. Even taken at its height ,her evidence suggested no more than bias on Mr [NAME] part because of his personal friendship with staff complaining about Ms [APPELLANT].

54. Following the meeting Ms [APPELLANT] alleged she was suspended between 19 December and 23 December but again did not give any evidence to suggest any connection with her alleged disability. Ms [APPELLANT] had also alleged in the claim form that she was forced to reduce her hours of work from 23 December, but her evidence about that was contradictory. This was raised as an allegation of discrimination against the respondents and that was how it had been understood by the judge at the case management hearing. However, in her evidence Ms [APPELLANT] that she had told the first respondent she wanted to reduce her working days. Ms [APPELLANT] appears to have thought it was discrimination

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12 because, at least in part, she reduced her hours because she had been distressed by the unfair investigation and that had made her mental health worse. In other words, it was a response to actions she thought were unfair, but there was no suggestion of any act or decision taken by the respondent to reduce her hours.

55. In the meantime it had been decided that the first respondent would hand back the [NAME] contract for the [NAME] involved in the conduct allegations. It was suggested by respondents that Ms [APPELLANT] and the [NAME]’s wife had wanted Ms [APPELLANT] and [NAME] to take over provision the [NAME] package and that they had tried to poach staff from the first respondent to meet the requirements of the contract. Ms [APPELLANT] denied that was case.

56. It was clear that that there were concerns about this [NAME] package. The NHS became involved to understand how this was being investigated. The Tribunal accepted that as a regulated provider of [NAME], the first respondent would be required to investigate concerns about the conduct of [NAME] staff in the [NAME] setting, even if turned out that those concerns were groundless. In terms of the poaching allegation, the Tribunal accepted that Mr [APPELLANT] and Mrs [APPELLANT] believed that Ms [APPELLANT] had tried to poach staff to enable the transfer of the [NAME] package, based on what staff has told them. We found it unnecessary to make any findings about whether the allegations were true or not. Mr [APPELLANT] and Ms [APPELLANT] may have been misled by Ms [APPELLANT]’ colleagues, but we accepted that the concerns had been raised and concluded that they had contributed to the breakdown in the relationship between [NAME] and Ms [APPELLANT]. We could find no apparent connection between the allegations and Ms [APPELLANT]’ disability. In those circumstances we found no reason to draw any adverse inference from the fact the respondents had decided to ask Ms [APPELLANT] questions about what had happened. No disciplinary procedure was followed but Ms [APPELLANT] had, of her own volition, asked to be treated as a self-employed [APPELLANT] who would not be covered by a disciplinary procedure or the ACAS Code of Practice. We concluded that whether the concerns were well- founded or not, Ms [APPELLANT] had not shown facts which suggest any connection with these events to her alleged disability.

57. Ms [APPELLANT] submitted an invoice for hours during December 2023. She told us that Mrs [NAME] sent her the hours worked and she simply submitted an invoice based on that information, but for reasons not adequately explained to us, we have not seen any evidence of that email from either side. It was not clear that we had seen the correct invoice. Ms [APPELLANT] disputed that the invoice in the bundle is the one she submitted, but she had failed to disclose her version of the invoice. This was not explained. It was a document she had prepared and she would be obliged keep of records for tax purposes for at least 6 years, and it is clearly a relevant document in these proceedings. We could see from WhatsApp messages between Ms [APPELLANT] and [NAME] that Ms [APPELLANT] had produced there does appear to have been an invoice which she had sent included in a message which looks like it contained more lines of text that the one in the bundle but we had no legible document before us.

Case Number: 2401525/2024

13 58. There is clear invoice in the bundle which appears to suggest that the claimant claimed a payment of £839 for 15 hours work at £11.50. It is a simple matter of arithmetic that that invoice was obviously incorrect. The attached schedule of hours, which we understand to be the one Ms [APPELLANT] had sent her that the Ms [APPELLANT] had been expected to work in the deliver [NAME] in blocks of one hour 67 hours. The record shows the exact time worked for each of those hours. The Tribunal did not add up in hours and minutes the record shows. This had not been done by the parties, and the records show sometimes it was more than hour, sometime less. However overall, it appears to be close to 67 hours. Of course 67 hours at £11.50 per hour is also not £839. After clarification from the respondents provided after the claimant’s cross examination had promoted them to check their records, the Tribunal now understands that the amount of £839 was correct. Ms [APPELLANT] had worked 67 hours but the hourly rate for Christmas Day and New Year’s Day was higher.

59. Ms [APPELLANT] says that the mistake was Ms [APPELLANT]. However, even if she is right about that, under the arrangement Ms [APPELLANT] accepted she had agreed with the first respondent, she was responsible for preparing the invoice showing hours worked and hourly rates. Ms [APPELLANT] had not shown us that she had done that.

60. Ms [APPELLANT]’ invoice was excluded from the wages run and she was not paid. She was affronted by that. Mr [NAME] asked her for clarification of the hours she had claimed or an updated invoice, but Ms [APPELLANT] refused to do either, instead simply insisting that she should be paid. Things quickly became very acrimonious between Ms [APPELLANT] and [NAME] and the messages between them became somewhat hostile and abusive, resulting in a total breakdown in communications. It appeared to the Tribunal that neither side was paying any attention to what the other was saying.

61. Ms [APPELLANT] says that [NAME] was paid for the hours he worked in December and suggested that this showed she had been treated less favourably because of her disability. However despite telling us that she was the one who prepared Mr [NAME] invoice, she has not provided the Tribunal with a copy of that invoice to show that he had prepared an incorrect invoice and was still paid. Mr [NAME] told us Mr [NAME] invoice was paid because it was correct. Mr [NAME] had not referred to this at all in his statement. The Tribunal accepted Mr [NAME] evidence that Mr [APPELLANT] was paid because his invoice was correct and Ms [APPELLANT] was not paid because her invoice was, on its face, incorrect.

62. Ms [APPELLANT] ceased working for the first respondent on 13 January.

Submissions

63. As noted above we heard oral submissions from Mr [RESPONDENT]. His position can be summarised in straightforward terms. He argued that Ms [APPELLANT] had failed to establish that she was a disabled [APPELLANT] at the relevant time. He pointed to the lack of evidence of the impact on day-to-day activities of the claimant’s mental health condition. Insofar as the Tribunal might take into account the contents of

Case Number: 2401525/2024

14 the medical records he highlighted that there is reference in late December 2023 to Ms [APPELLANT] telling her GP that she had attempted twice suicide in 2022 but in fact the contemporaneous records from March 2022 show the GP recording that Ms [APPELLANT] had reported feeling suicidal but that she had not made any attempt on her life. Mr [RESPONDENT] argued that this is one example of Ms [APPELLANT] being an unreliable witness and that we should be cautious about attaching weight to what is recorded in the GP records when it was simply a record of information provided to the doctor.

64. Mr [RESPONDENT] also made some submissions about the respondents’ knowledge of Ms [APPELLANT]’ disability, although the Tribunal noted that knowledge is not explicitly required for a complaint of direct discrimination. Ms [APPELLANT] had disclosed her past mental health difficulties when she began employment and if Mr [NAME] had taken a decision not to pay her because of that mental health condition and we concluded that condition amounted to a disability, we did not consider that it would have mattered that Mr [NAME] might not have recognised the condition as a disability. This was not a submission we considered further.

65. More significantly as discussed further below, Mr [RESPONDENT] highlighted that Ms [APPELLANT] had struggled to put any argument to the Mr [APPELLANT] that not paying the invoice had been motivated by disability and also that Mr [NAME] clear evidence was that this had not been his reason.

66. In her written submissions Ms [APPELLANT] submitted that she was a disabled [APPELLANT] within the meaning of the Equality Act 2010, with long‑standing mental health impairments evidenced in medical records predating her employment. She argued the respondents had full knowledge of that from the start of her employment, relying on the health questionnaire she completed.

67. In terms of the reason for non-payment Ms [APPELLANT] asserted that she had been treated less favourably than non‑disabled colleagues. She referred to the fact that Mr [NAME] had been paid and in support referred to other discriminatory conduct she said she had been subject to. She suggested to us that the respondents had not given any credible explanation for refusal to pay her, and that communications show antagonistic responses despite her repeated requests.

Conclusions

68. The Tribunal could see Ms [APPELLANT] feels very strongly that she was unfairly treated and that this has made her unwell and that was why she had sought redress from the tribunal not only for payment of wages owed but on the basis of disability discrimination. However, Ms [APPELLANT] did not, in our view, engaged with the legal issues the Tribunal had to determine in terms of the evidence to suggest that the reason why she was not paid was disability, despite the efforts of the judge to make clear the legal issues being decided.

69. It is not now in dispute that Ms [APPELLANT] was not paid all of the monies she was owed. That non-payment for hours worked in December was clearly a

Case Number: 2401525/2024

15 detriment, but Ms [APPELLANT] had not, despite her assertions in submissions, shown us that a non-disabled employee in the same circumstances as her was treated more favourably than she was. We did not have evidence that Mr [NAME] had submitted an incorrect invoice which had still been paid. Ms [APPELLANT] had failed to prove to the Tribunal on the balance of probabilities that she had submitted a correct invoice. She refused to submit a corrected invoice when asked to by Mr [APPELLANT]. Despite it being Ms [APPELLANT] who had asked to become self-employed, presumably for her own financial advantage, the Tribunal formed the impression she thought she should still be paid in exactly same way as individuals who had remained in employment. She did not see it has her responsibility to prepare and submit invoices, and she appears to have made no attempt to check that her invoice was correct.

70. This Tribunal has not been required to take findings on the correctness of the “self-employment” status requested by Ms [APPELLANT], the respondents having accepted that she met that statutory definition of an employee under the Equality Act and to have dropped its arguments about illegality. However, the fact that Ms [APPELLANT] had asked to become self-employed was a significant factor in what happened in terms of payment. She was not in the same position as her employee colleagues because they were not required to provide invoices as result of requesting that change in status. Only Mr [NAME] was in a comparable position. We accepted Mr [NAME] evidence that he believed Mr [NAME] had submitted an invoice which was correct. We found the fact that [NAME] had asked Ms [APPELLANT] for a corrected invoice was evidence that if she had submitted a correctly calculated invoice instead of taking the somewhat intransigent position she did, that would have been paid. On the evidence presented to us by Ms [APPELLANT] we were satisfied that the reason why she was not paid was the fact that her invoice did not correctly show hours worked at a higher rate and that when asked for correct invoice instead of checking and correcting what she had submitted, Ms [APPELLANT] dug her heels in and demanded payment of her wages as if she was still an employee on the payroll. That was the reason she was not paid, and it was not a reason tainted by disability.

71. As we concluded that there was non-discriminatory reason for the non-payment it was not necessary for us to reach any conclusion on whether Ms [APPELLANT] was a disabled [APPELLANT] for the purposes of the Equality Act 2010. In her submissions Ms [APPELLANT] asserts that “My health records show my disability prior to my employment dating back to 2022 and it also shows the state of my disability at the end of my employment dated 17th December 2023” and “Under the Equality Act 2010 we have already determined that I am disabled”. That is not correct. Ms [APPELLANT] had failed to do what she had been ordered to and provide evidence of the impact of her mental impairment on her ability to carry out day to day activities. Even when her failure to do that had been pointed out by the respondents’ representative before the hearing and Ms [APPELLANT] could have corrected matters, she failed to engage with what she was being told and insisted that she had complied with the orders. She was given time during the hearing to identify relevant evidence in the medical records but did not do that. It seemed to the Tribunal that Ms [APPELLANT] continued to insist that a medical diagnosis of anxiety and depression should be enough to satisfy the statutory

Case Number: 2401525/2024

16 definition of disability despite the attempts of the judge to explain the legal principles.

72. It is unfortunate that Ms [APPELLANT] did not engage with the Tribunal orders despite the careful guidance by Employment Judge Benson. It would have been difficult for this Tribunal to make findings about disability if that had been required but in the circumstances given we were satisfied that this case was, in the end, simply a dispute about a failure to pay wages due and it was not necessary for us to reach any conclusions about that issue.

Approved by: Employment Judge Cookson 7 April 2026 Judgment sent to the parties on: 20 April 2026 …………………………………… For the Tribunal:

……………………………………

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

Case Number: 2401525/2024

17

NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 ARTICLE 12

Case number: 2401525/2024 Name of case: [APPELLANT]

v 1. [NAME] ([APPELLANT] 2. Mr [APPELLANT] 3. Ms [NAME] is payable when an Employment Tribunal makes an award or determination requiring one party to proceedings to pay a sum of money to another party, apart from sums representing costs or expenses.

No interest is payable if the sum is paid in full within 14 days after the date the Tribunal sent the written record of the decision to the parties. The date the Tribunal sent the written record of the decision to the parties is called the relevant decision day.

Interest starts to accrue from the day immediately after the relevant decision day. That is called the calculation day.

The rate of interest payable is the rate specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as the stipulated rate of interest.

The Secretary of the Tribunal is required to give you notice of the relevant decision day, the calculation day, and the stipulated rate of interest in your case. They are as follows:

the relevant decision day in this case is: 20 April 2026

the calculation day in this case is:

21 April 2026

the stipulated rate of interest is:

8% per annum.

For the Employment Tribunal Office

Case Number: 2401525/2024

18 GUIDANCE NOTE

1. There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings- judgment-guide-t426

If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.

2. The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.

3. The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.

4. Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.

5. Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.

6. If the [APPELLANT] paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.

7. If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.

8. If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.

9. The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way.

Case Number: 2401525/2024

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents :

[redacted]

Manchester On: 2 and 3 March 2026 Before: Employment Judge Cookson Mrs [NAME]:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT

1. The complaints of direct disability discrimination under s13 of the Equality Act 2010 and of harassment related to disability under s26 of the Equality Act 2010 made about the following factual allegations are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of success. They are the allegations that: a. the claimant was told that a meeting on 19 December 2023 was an appraisal/supervision meeting when in fact it was a meeting to accuse the claimant of stealing a client b. during that meeting on 19 December 2023 Mr [NAME] and Ms [APPELLANT] behaved in a hostile way and accused the claimant of stealing a client; and Mr [APPELLANT] told the claimant “I’ve got a lie detector test on my phone” and shout that the claimant was “guilty” c. the claimant was suspend from work between 19 December and 22nd December 2023 d. the claimant was forced to reduce her hours of work from 23rd December 2023 e. the claimant was not provided with any work after 13 January 2024

Case Number: 2401525/2024

2 2. The complaint of discrimination arising from disability under s15 Equality Act 2010 is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.

3. The complaint about a failure to make reasonable adjustments in accordance with s20 and 21 of the Equality Act 2010 is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.

4. The remaining complains will be determined by the Tribunal. Approved by: Employment Judge Cookson 3 March 2026 Judgment sent to the parties on: 20 April 2026 For the Tribunal:

…………………………………

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