THE INDUSTRIAL TRIBUNALS

CASE REFS:  1195/16
1753/16

CLAIMANT:	Marie Claire McLaughlin

RESPONDENT:	Charles Hurst Limited

DECISION 

The unanimous decision of the tribunal is that all the claims are dismissed.

Constitution of Tribunal:

Vice President:	N Kelly
	
Members:	Ms F Cummins
	Ms E Gilmartin

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr P Bloch, of the Engineering Employers Federation.

BACKGROUND

1.	The respondent operates a group of garages selling and servicing cars in Northern Ireland.  

2.	The claimant was employed as a sales advisor in the Toyota garage in Belfast from 23 July 2012 to 24 May 2016, when she resigned from her employment.

3.	During the relevant times, the claimant suffered from depression and anxiety and this had been accepted by the respondent as a disability for the purposes of the Disability Discrimination Act 1995 (the 1995 Act).  

4.	The claimant had brought previous claims in 2015 alleging unlawful discrimination, harassment and a failure to make reasonable adjustments, all contrary to the 1995 Act.  These claims had been determined by a tribunal in a decision issued on 21 December 2016.

5.	That earlier tribunal determined, in relation to different facts, in relation to a different period and on different evidence, that her earlier claims of unlawful discrimination, victimisation and harassment had been unfounded.  It upheld her earlier claim of a failure to provide reasonable adjustments, contrary to the 1995 Act.  

6.	An adjustment, which the claimant had accepted, was put in place on 12 May 2015.  That adjustment (the initial adjustment) allowed the claimant to reduce her weekly hours from approximately 50 hours to 40 hours and allowed her to take Wednesdays off work.  Difficulty was experienced in the operation of that adjustment.

7.	The claimant lodged two further tribunal claims; one before she resigned on 24 May 2016 and one after that resignation.  In those claims, which are the subject of the present decision, she alleged constructive unfair dismissal contrary to the Employment Rights (NI) Order 1996 (the 1996 Order) and direct discrimination, a failure to provide a reasonable adjustment, harassment, and victimisation in relation to the operation of the initial adjustment and in relation to her treatment by the respondent leading up to her resignation, contrary to the 1995 Act and to Council Directive 2000/78/EC.  She had also alleged that the respondent had been in breach of contract in not paying her notice pay following her resignation.  That allegation appeared in the list of issues for determination.  It was pursued for much of the hearing by the claimant but was eventually discontinued.

Procedure

8.	The claims had been case managed and directions had been given in relation to the interlocutory process and in relation to the use of the witness statement procedure.  

9.	The claimant gave evidence on her own behalf and called Mr Ian Redpath, her husband.  Both gave evidence in chief by way of a witness statement.  The claimant also called Ms Louise McQuillan and Ms Norma Bolton, both of Disability Action who attended on foot of Witness Attendance Orders.  Ms Bolton was recalled at the end of the evidence to clarify the position in relation to any subsidy allegedly payable to the respondent from publicly provided funds.

10.	The respondent called;

	(i)	Ms Barbara Armstrong, who had been placed by the respondent to stand in as service adviser in the Toyota garage on Wednesdays as part of the initial adjustment.

	(ii)	Mr James Thompson, who had been appointed as the claimant’s line manager in November 2015.

	(iii)	Mr Richard Hillis, who had been the claimant’s manager when the initial adjustment had been put in place and who had retained responsibility for the operation of that adjustment and for the management of the difficulties experienced in relation to that adjustment.

11.	The witness statement procedure was used in this hearing.  With the exception of the two witness who attended on foot of witness attendance orders, each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statement as their evidence in chief and moved immediately into cross-examination and then brief re-examination.  The two witness who attended on foot of Witness Attendance Orders gave oral evidence in chief before being cross-examined and re-examined.

12.	There were significant but unavoidable delays in bringing this case to a hearing due to serious illnesses suffered by witnesses.

13.	The evidence was heard on 6, 7 and 11 June 2018.  Submissions were heard on 12 June 2018.  A panel meeting was held on 3 July 2018 to consider the evidence and the submissions, and to reach a decision.  This document is that decision.

RELEVANT LAW

Disability Discrimination

Direct Discrimination

14.	Section 3A(5) of the 1995 Act provides that a person directly discriminated against a disabled person if:

		“On the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from those of a disabled person.”

Harassment 

15.	An employer, or an individual, may subject an employee to unlawful harassment where, for a reason relating to that person’s disability, he engages in unwanted conduct which has the purpose or effect of violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.  Conduct will only be regarded as having the effect of creating such an environment if, having regard to all the circumstances, including in particular the perception of the employee, it should reasonably be considered to have had that effect.

16.	Under Section 58, an employer will have a defence to any claim of vicarious liability for the discriminatory actions of an employee if that employer has taken “such steps as were reasonably practicable” to prevent the occurrence of that discrimination.

Victimisation

17.	As the Court of Appeal stated in Rice v McEvoy [2011] NICA 9 when it remitted a claim of unlawful victimisation for complete re-hearing:-

“In order to establish that discrimination by way of victimisation has occurred –

	(a)	circumstances relevant for the purposes of the provision of the Order must apply; 

	(b)	the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (‘the less favourable treatment issue’); and

	(c)	he must have done so by reason of the fact that the person victimised has done one of the protected acts (‘the reason why issue’).”

18.	In Paragraph 33 of its decision, the Court stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious.  If on such consideration it appears that a protected act had a significant influence on the outcome, victimisation is established.  (See Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576.)  The question is why did the alleged discriminator act as he did?  What consciously or unconsciously was his reason?  Unlike causation this is a subjective test.”

19.	The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation.  A claimant in a discrimination claim must prove facts upon which the tribunal could reasonably infer, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant (in this case unlawfully victimised the claimant).  In other words, the claimant must establish a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.

Reasonable adjustments duty

20.	Section 4A of the Act provides:-

			“(1)	Where –

(a)	any provision, criterion or practice applied by or on behalf of an  employer …

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

21.	Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.  The EAT in Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made. 

22.	The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

		“The paragraph in the DRC’s Code is correct.  The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some apparently reasonable adjustment which could be made.  That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift.  It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”

23.	The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions.  Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.  

	The Code sets out various factors which may be relevant in determining whether an employer has complied with its duty to provide reasonable adjustments in compliance with the 1995 Act.  At paragraph 5.42 it indicates that one such factor may be:

		“the extent to which the disabled person is willing to co-operate”.

24.	The purpose of the 1995 Act was described by the EAT and its decision was upheld by the Court of Appeal (GB) in O’Hanlon –v- Revenue and Customs Commissioners [2007] ICR 1359.  The EAT stated:-

“69. 	Second, as the tribunal pointed out, the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce.  All the examples given in section 18B(3) are of this nature.  True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what might be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled.  The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the Tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.”

Shifting Burden of Proof

25.	The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law.  The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009.  The court held:-

“22	This provision and its English analogue have been considered in a number of authorities.  The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been.  The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 23	In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.  

24	This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

26.	In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case.  It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof.  At Paragraph 19, Lord Justice Sedley stated:-

“(19)	We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal.  In some instances it will be furnished by a non-response, or an evasive or untruthful answer, to a statutory questionnaire.  In other instances it may be furnished by the context in which the act has allegedly occurred.”

27.	In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

“(71)	There still seems to be much confusion created by the decision in Igen v Wong.  What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

 (73)	No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

 (75)	The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76)	Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling Tribunals in every case to go through each stage.”

28.	In Frank McCorry and Others v Maria McKeith [2016] NICA 47, the Court of Appeal stated:

		“The Shifting Burden of Proof.
 
[35]	While Ms McKeith did not advance a claim for disability related discrimination in relation to the period before the dismissal decision, her background treatment in the preceding months did inform the approach of the Tribunal in relation to the dismissal decision.  The background included the requirement that Ms McKeith remain absent from work for periods to look after her disabled daughter. Had it arisen for decision, the Tribunal would have concluded that the previous treatment of Ms McKeith amounted to disability related discrimination (paragraph 132).
 
[36]	On taking into account that background and the evidence in relation to the dismissal of Ms McKeith, the Tribunal stated that “the shifting burden of proof is going to be crucial” (paragraph 136).  
 
[37]	The Burden of Proof Directive (EEC) 97/80 was extended to the United Kingdom in 1998 and Article 4(1) provided – 
 
“Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them have established, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
 
[38]	Section 17A(1B) of the 1995 Act provides –
 
`Where, on the  hearing of a complaint under sub-section (1), the complainant proves facts from which the Tribunal could, apart from this sub-section, conclude in the absence of adequate explanation that the respondent has acted in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.’”
 
[39]	The approach to the shifting burden of proof was considered by the Court of Appeal in England and Wales in Wong v Igen Ltd (2005) EWCA Civ 142.  It was stated that the statutory amendments required a two-stage process.  The first stage required the complainant to prove facts from which the Tribunal could, apart from the section, conclude, in the absence of an adequate explanation, that the employer had committed, or was to be treated as having committed, the unlawful act of discrimination against the employee.  The second stage, which only came into effect on proof of those facts, required the employer to prove that he did not commit or was not to be treated as having committed the unlawful act, if the complaint is not to be upheld. 
 
[40]	The issue was revisited by the Court of Appeal in England and Wales In Madarassy v Nomura International plc [2007] EWCA Civ 33 which set out the position as follows (italics added) –
 
“56.	The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent `could have’ committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal `could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
 
57.	`Could conclude’ [in the Act] must mean that `a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the complaint to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by [the Act]; and available evidence of the reasons for the differential treatment.  
 
58.	The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.  The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.  The consideration of the Tribunal then moves to the second stage.  The burden is on the respondent to prove that he has not committed an act of unlawful discrimination.  He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant.  If he does not, the Tribunal must uphold the discrimination claim.”
 
[41]	The Tribunal was satisfied that Ms McKeith had established a prima facie case that she had been directly discriminated against because she had been the primary carer of her disabled daughter (paragraph 147).  The Tribunal then found that the Ardoyne Association had not put forward any convincing or coherent explanation for its decision to make Ms McKeith redundant (paragraph 148).  It was accepted on the hearing of the appeal that, if this was a case where the burden of proof shifted to the employer, there had not been a sufficient explanation.  Accordingly, the challenge was concerned with whether the evidence before the Tribunal was such that a prima facie case of associative direct discrimination had been made out.  
 
[42]	In this regard the Tribunal set out a number of facts which concerned Ms McKeith having been sent home on previous occasions because of her disabled daughter, Ms Burns’ belief that she should be at home with her disabled daughter, the reluctant piecemeal and incomplete nature of discovery, the other two persons  who were made redundant at the same time were first re-engaged as volunteers and then rehired, the evasive and unconvincing evidence of the Manager and the non-compliance with statutory dismissal procedures.  The Tribunal stated “. If this is not a case where the burden of proof should shift, no such case exists” (paragraph 147).  
 
[43]	We are satisfied that, as outlined by the Tribunal, there was such evidence of a difference in status, a difference in treatment and a reason for differential treatment that, in the absence of an adequate explanation, a Tribunal could conclude that the employer committed an unlawful act of associative disability discrimination.  The burden on the Ardoyne Association was not discharged. It followed that the Tribunal would find disability discrimination. 
 
[44]	We are not satisfied on any of the appellant’s grounds of appeal.  The appeal is dismissed.”

Constructive Unfair Dismissal

29.	In London Borough of Waltham Forest v Omilaju [2005] IRLR 35, the Court of Appeal (GB) set out the basic propositions of law relating to constructive dismissal.  It stated that they were:-

		“1.	The test for constructive dismissal is whether the employers’ actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1998] IRLR 27.

		2.	It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn).  I shall refer to this as ‘the implied term of trust and confidence’.

		3.	Any breach of the implied term of trust and confidence will amount to a repudiation of the contract; see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; 350.  The very essence of the breach of the implied term is that it is ‘calculated or likely to destroy or seriously damage the relationship’.

		4.	The test of whether there has been a breach of the implied term of trust and confidence is objective.  As Lord Nicholls said in Malik at p464, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

		5.	A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a serious of incidents.  It is well put at para 480 in Harvey on Industrial Relations and Employment Law –

			‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time.  The particular incident which causes the employee to leave may in itself be insufficient to justify him taking that action, but when viewed against the background of such incidents, it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal.  It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship’.”

30.	The Court also stated:

		“Although the final straw may be relatively insignificant, it must not be utterly trivial.  The principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application.”

31.	The Court went on to state:

		“The question specifically raised by this appeal is:  What is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract?  When Glidewell LJ stated that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at page 351 where Browne-Wilkinson J referred to the employer who, stopping short of an actual breach of contract, squeezes out an employee by making the employee’s life so uncomfortable that he resigns.  A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence.  The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term.  I do not use the phrase “an act in a series” in a precise or technical sense.  The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant.”

	The Court went on to state:

		“Moreover an entirely innocuous act on the part of an employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer.  The test of whether the employee’s trust and confidence has been undermined is objective … .”     

32.	In Brown v Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract. 

Unfair dismissal

	To ground a successful claim, a constructive dismissal must, of course, also be unfair.  

33.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

		“130-(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

				(a)	the reason (or if more than one, the principal reason) for the dismissal and

				(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

	(2)	a reason falls within this paragraph if it – 

				(b)	relates to the conduct of the employee, 

   	(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

				(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

				(b)	shall be determined in accordance with equity and the substantial merits of the case.”

Notice Pay

34.	If an employee, whose contract of employment has terminated, was contractually entitled to payment of notice pay, and that notice pay has not been paid, a claim may be to the tribunal in respect of an unauthorised deduction from wages contrary to the 1996 Order or in respect of an breach of contract under the Industrial Tribunals Extension of Jurisdiction Order 2006.

Relevant Findings of Fact

35.	On 12 May 2015, the respondent put in place the initial adjustment to the claimant’s duties, in consultation with the claimant and in consultation with Disability Action who had been advising the claimant and who continued to advise the claimant throughout her employment.  That adjustment meant that her hours were reduced from approximately 50 per weeks to 40 hours per week.  She was to work on Monday, Tuesday, Thursday and Friday each week with Saturday mornings on a rota basis.  That meant that she would be off work every Wednesday and that day off would both facilitate her regular appointments with her therapist and lessen stress and anxiety experienced by the claimant.  Mr Richard Hillis was her manager at that point.  

36.	On 3 June 2015, her contract of employment was formally amended to provide for that initial adjustment.  The amendment meant that there was to be no pro rata pay reduction and no pro rata holiday reduction to take account of the 20% reduction in hours.  The claimant also was to retain the company car with which she had previously been provided for travel to work and for her own use.  That had been a courtesy car which had been available for the use of customers during the working day, while the claimant had been at work.  The fact that the claimant had been allowed to retain that car on Wednesdays when she was not working, and on Saturdays when she had not been working, resulted in a loss of one courtesy car on those days to the Toyota garage and caused disruption and inconvenience to the Service Department and to customers.  

37.	The claimant was pleased with this adjustment and accepted it.  She had no criticism whatsoever of the initial adjustment.  That was confirmed by the claimant’s evidence and by the email from Norma Bolton of Disability Action on 26 June 2015.  

38.	In the negotiation, agreement and implementation of this adjustment, the respondent had worked throughout with the claimant and with Disability Action.  It had allowed Disability Action free access to the respondent’s premises and it had facilitated the necessary meetings with the claimant and with representatives of Disability Action. 

39.	Disability Action provided a financial subsidy of £2,500 which had been granted for one year only.  That subsidy had expressly been granted to cover guidance and support and disability training, together with time spent at meetings to discuss the reasonable adjustment.

	It had not been, as argued on behalf of the claimant, a subsidy for either the claimant’s salary or for the salary of the person (Ms Armstrong) who was to work on Wednesdays to cover the claimant’s post and to facilitate the initial adjustment.  That argument had been made by the claimant but it had been entirely unsupported by evidence.  When Ms Bolton was recalled to explain the subsidy, she clarified the limited nature and the limited amount of the financial support which had available to the respondent.

40.	The claimant also put forward, in argument, the suggestion that her salary had not been reduced pro rata, as part of the initial adjustment, because, if it had been reduced pro rata, it would have breached the national minimum wage legislation.  That had clearly been an erroneous suggestion.  If the claimant’s pay for the original 50 hours per week had been reduced pro rata on the reduction in hours to 40 hours per week, that could not have breached the national minimum wage legislation unless the original arrangement for 50 hours per week had also breached that legislation.  That argument had been put forward by the claimant to counter the suggestion that the initial adjustment had been generous in not reducing pay pro rata.  That argument, and the argument that Ms Armstrong’s employment or the claimant’s employment had been subsidised, tend to suggest that the claimant was and remains reluctant to recognise any efforts made by the respondent in this or in any respect.  That reluctance was apparent in the claimant’s final submissions.  The respondent was alleged by the claimant to have shown a begrudging attitude to the claimant.  The evidence does not support this claim; it suggests the reverse.

41.	In the Toyota garage, at this time, there had been one other full-time service adviser, Ms Stephanie Murray and a service team leader Mr James Thompson.  

42.	To facilitate the initial adjustment, a Ms Barbara Armstrong, another employee of the respondent, had been recruited to cover Wednesdays when the claimant would be off work.  Ms Armstrong had been due to return from maternity leave when the initial adjustment had been agreed with the claimant and with Disability Action.  Ms Armstrong had asked the respondent for a part-time role on her return from maternity leave.  She had previously worked with the claimant for the respondent in the Nissan garage and had known the claimant on and off for nearly 10 years.

43.	Ms Armstrong had a meeting with a Mr Ryan Andrews and Mr Andrew Gilmore of the respondent’s management.  They discussed a possible job-share at a service desk in the organisation.  The particular service desk was not identified by them.  Ms Armstrong however was clear in evidence, and the tribunal accepts, that she had known which service desk had been involved because the claimant had asked her to take the job.

44.	Mr Andrews and Mr Gilmore had made it plain to Ms Armstrong that they had only needed a part-timer for one day ie the Wednesday each week.  Ms Armstrong had stated that she needed employment for two days per week.  The respondent had found it difficult to find someone willing to work for only one day per week.  The respondent agreed to Ms Armstrong’s proposal and the adjustment was to start in May 2015.  

	The tribunal concludes that this shows that the respondent had been making efforts to make the initial adjustment work, by agreeing to two days’ work when it only needed one.  That would have involved a significant cost, even allowing for the small subsidy from Disability Action which had been, in any event, not to cover salaries, as had been initially argued by the claimant, but to cover training, support and the costs of meetings.  In any event, that small subsidy had been time limited for twelve months while Ms Armstrong’s appointment had been open-ended.

45.	Ms Armstrong was given an amended contract for 19 hours per week.  That was expressed to be a permanent amendment to her contract of employment and it was regarded as such by the respondent.  Ms Armstrong however herself accepted the amendment as a trial period, as she wished to “test” the job.  However, she was clear that it had been expressed to be and had been understood by the respondent to have been a permanent amendment.

	Again, the permanent amendment of Ms Armstrong’s contract (on paper and in the respondent’s understanding, at least), does show the respondent’s commitment to the initial adjustment at that point.  It did not need to do any of that.  It could have simply gone back to the claimant and to Disability Action and could have told them that it could not recruit anyone to cover only one day per week.  However the respondent chose to bear the additional cost of employing Ms Armstrong for two days per week, on an open-ended basis.

46.	After approximately two weeks in the new job sharing post, Ms Armstrong concluded that the service adviser post could not be shared with the claimant.  This appears to have been a personal difficulty between Ms Armstrong and the claimant.  She was specific in cross-examination that the post could not be job shared with the claimant – not that it could not be job shared at all or in principle.  

47.	Ms Armstrong’s current description of her experience of working with the claimant seems overstated.  For example she refers to one incident where the claimant went home sick early and then appeared the next day with her hair done and with false eyelashes.  She also alleged that the claimant had taken several holidays per year.  There seems to have been some personal friction between Ms Armstrong and the claimant.  The exact source of that personal friction, and where the blame for that friction lay, is not relevant to this decision.  The source of that friction and the blame for that friction did not lie with the respondent.  It lay with Ms Armstrong or the claimant, or possibly with both.

48.	In the early weeks of the job-sharing arrangement, the claimant came in to work on the Wednesday on two occasions.  On those occasions, she took another day off in lieu.  It may have been that the claimant had been requested to come in on those Wednesdays because of particular work pressures, but again that does not really matter in the context of this case.  Any changes from time to time in the operation of the adjustment had been agreed with the claimant.  The claimant and Disability Action brought forward no evidence to suggest that any such agreed changes in the early operation of the initial adjustment had disrupted her mental health, had disrupted her appointments with her therapist or had been forced on her by the respondent.  

	However, these changes in the early operation of the initial adjustment caused inconvenience to Ms Armstrong who had been trying to balance childcare and work on her return from maternity leave.  It had also meant that, on those days, Ms Armstrong was not given service adviser duties but was given administrative duties which she regarded as less congenial.  There appears to have been no need for an additional administrative worker.  In particular, Ms Armstrong had been denied the possibility of gaining experience in the service adviser role, a matter which she regarded as an important part of her career development.

49.	Ms Armstrong felt that Mr Hillis, the manager at that point, had favoured the claimant.  Ms Armstrong stated that Mr Hillis would do what the claimant told him to do.  It seems clear that the claimant had been good at her job when present, and that Ms Armstrong did not get as much experience of the service adviser role as she had expected.

50.	Ms Armstrong chose to leave the post.  There was absolutely no evidence that any pressure had been brought upon her to reach that decision by anyone in the respondent’s management structure.  In fact, Mr Hillis and Mr Gilmore had tried to dissuade Ms Armstrong from leaving the post but had been unsuccessful.  Mr Hillis then offered her a post in the CRC (the respondent’s call centre) which she accepted.  Ms Armstrong left the job-sharing arrangement after approximately eight weeks in total.  However, she had made the firm decision to leave after about two weeks of the arrangement.  

	The fact that the respondent offered Ms Armstrong another post in the call centre does not seem in the least sinister, as suggested by the claimant.  Ms Armstrong had been returning from maternity leave.  If the respondent had not tried to accommodate her and to retain her in employment, it could have experienced further significant problems.  It had been in reality inevitable that it would bend over backwards to facilitate Ms Armstrong’s retention in employment.  It does not detract from the evidence pointing towards the respondent’s real attempts to make the initial adjustment work.  It also seems clear that Ms Armstrong’s decision to leave the job-sharing arrangement had been her own decision and that it had not been anyone else’s decision.

51.	At about the same time as Ms Armstrong left the job-sharing arrangement in August 2015, Ms Stephanie Murray, the other full-time service adviser resigned her post.  That left the claimant as the only full-time, or nearly full-time, service adviser in the Toyota garage.  She remained working on her agreed adjustment for Monday, Tuesday, Thursday and Friday each week with Saturdays on rota.  There was no evidence put forward by the claimant that the adjustment was halted or temporarily suspended by the respondent at this stage, or indeed at any stage.

52.	During this period, Mr James Thompson had been the service team leader in the Toyota garage.  He, and other staff would have assisted the claimant from time to time in her duties and would have stood in for the claimant on each Wednesday.  However Mr Thompson had also been working for part of his time in the Lexus garage across the road from the Toyota garage.  Therefore, the service department had been short-staffed during this period.

	All of this had resulted in increased pressure on the claimant and increased pressure on her mental health.  It had also resulted in increased pressure on Mr Thompson who had also been suffering from significant health problems which would probably have amounted to a disability for the purposes of the 1995 Act.  Nevertheless the respondent continued to attempt to operate the initial adjustment.

53.	Mr Hillis stated in evidence and in a contemporaneous email that the recruitment process for a replacement for Ms Murray had started in August 2015.  It seems clear that this was correct.   A technician had been recruited internally to replace Ms McMurray at the end of that month. 

54.	At this time, in or around August 2015, Mr Hillis had noticed a “cluster” of customer complaints which had appeared to relate, at least in part, to the claimant and which may have been a result of the increased pressures under which the claimant had been working.  

55.	One of those complaints had been from a Mr Gabriel Traynor.  While much of his complaint had focussed on the performance of the service department, Mr Traynor had criticised in particular the attitude of the claimant who he alleged had told him at one point to “lose the attitude, Gabe”.  That was something which any employer would have wished to raise with an employee who had operated in a customer service role.

56.	These complaints could not have been ignored and had to at least be considered and investigated, even if not in a disciplinary context.  The complaint from Mr Traynor had been quite specific about the claimant, and had compared her unfavourably to Ms Armstrong and Ms Murray who had still been working on the relevant date.

57.	At 12.24 on 20 August 2015, Mr Hillis emailed Ms Rachel Kershaw in the respondent’s central HR Department in England to set up a meeting to discuss the customer complaints which had concerned the claimant.  

	It is notable that Mr Hillis did not suggest a formal investigation or a disciplinary investigation.  He had been careful to suggest the arrangement of a meeting with the claimant and with Disability Action to discuss the complaints.  There had been no suggestion of any punitive action and the involvement of Disability Action suggests that Mr Hillis had been conscious at that time of the question of the claimant’s disability and its potential impact on all of this.  This meeting does not suggest that the respondent had lost interest in the initial adjustment or that the respondent had failed to appreciate the potential influence of the claimant’s disability.

58.	By coincidence, some minutes later, at 13.24 pm on 20 August 2015, Ms Bolton from Disability Action emailed Mr Hillis to raise the staffing difficulties then being experienced in the Toyota service department and to raise concerns about how the extra pressures might be affecting the claimant’s mental health.  

	Ms Bolton stated; 

		“I understand from speaking with Marie-Claire that you are now down a member of staff, and that your deputy manager is also currently working in another franchise.  I appreciate this is an extremely difficult time for you all but would be very concerned about how these extra pressures are impacting on Marie-Claire’s mental health.  Over the past two weeks she has had to take medication in work, for panic attacks, she has also taken anxiety medication – she feels this is directly as a result of the reduction in support the team can currently offer.”

	She went on to state;

		“I was hoping there may be some other supports and reassurances you could give her, that this is only an interim situation.  If possible, I feel it would be useful if we could meet early next week to update and offer some reassurances to Marie‑Claire.”

59.	At 11.35 am on the following day 21 August 2015, Mr Hillis replied to Ms Bolton.  He stated;

		“I agree it would be a good time to have a meeting to discuss the present position in the department, and how Marie-Claire is performing in her role at present as we have had some customer complaints recently which have raised concerns.  Rachel Kershaw from our Manchester HR department is in Belfast on Tuesday and Wednesday and is available to join the meeting.  I am available on Tuesday between 1.00-3.00 pm or Wednesday any time up to 2.00 pm if you could confirm when you are available to attend.”

	Again, the customer complaints could not have been ignored by the respondent.  Its business depended on a satisfactory relationship with customers.  That said, the emphasis from Mr Hillis had not been on any disciplinary or punitive sanction.  He wanted to involve Disability Action in the discussion of how the claimant had been performing in her role and in a discussion of the current situation in the department.  The efforts which Mr Hillis had put in to arranging the meeting and into getting Ms Kershaw to attend, suggest a continuing commitment to the initial adjustment.  The email indicates that he had made considerable efforts to make himself and Ms Kershaw available for the meeting, that he had given Ms Bolton quite a few options for attendance, and that he had responded promptly to her concerns.  The claimant sought to argue that his approach had not been sympathetic, but this does not seem fair.  Mr Hillis could have taken disciplinary action on foot of the complaints, if he had wished to make things difficult for the claimant, or if he had wished to get rid of her.  He did not do so.  That does not suggest discrimination, victimisation or harassment.

60.	The next day, Mr Hillis received clarification from Mr Gilmore, his line manager, about the need for special measures to be taken for the storage of the claimant’s medication on work premises.  The previous arrangement, which appears to have been put forward by Disability Action, and which had been apparently agreed by the respondent’s health and safety officer, had been for the claimant’s anti-anxiety medication to have been retained in the garage safe.  That medication would then be made available to the claimant as required.  That seems to the tribunal to have been an extraordinary measure.  The drug in question, although not a controlled drug, had been a prescription only drug, commonly known to be potentially subject to abuse, which should have been kept by the person, to whom it had been prescribed, in that person’s custody.  It appears inappropriate that such a drug would have been kept elsewhere in a safe to which several people had access and in premises where young people, including apprentices, had been employed.  In any event, Mr Gilmore, who had been Mr Hillis’ manager at that stage, clarified that the medication did not need to be stored under lock and key and that it could be kept in the claimant’s handbag.  It did not require special storage as it was not a controlled drug.  

	The claimant sought to argue that Mr Hillis’ response to Mr Gilmore, which had included the words; “most enlightening!!!!!”, was in some way evidence of a discriminatory attitude.  It is difficult to see this in that way.  The respondent’s willingness to assist the claimant and to co-operate with Disability Action tends to show that again the respondent had been willing to take significant measures at the suggestion of the claimant or of Disability Action to facilitate the claimant.  That does not suggest discrimination, victimisation or harassment.

61.	The meeting between Mr Hillis and Mr Kershaw and Ms Bolton and the claimant was to take place on 25 August 2015.  On 24 August 2015, the claimant did not attend work and did not follow the normal absence notification procedures.  No disciplinary action was taken or, apparently even contemplated, by the respondent.

	This again shows a continuing commitment to the initial adjustment and it tends to disprove any suggestion that the respondent had been out to get rid of the claimant or to discriminate against her, harass her or victimise her.

62.	At the meeting on 25 August 2015, there had been relatively little discussion about the complaints.  The claimant had told Ms Bolton that she could not think of any customer complaints.  That seems unlikely in the context of a small service department.

	The claimant refers at paragraph 10 of her witness statement to the complaint from Mr Traynor and states that much of it related to Mr McHenry in the service department.  She did not refer to and ignored the repeated references in that complaint to her own conduct and in particular to her alleged remark of “lose the attitude, Gabe.”  Mr Traynor had been a customer who had been on his first visit to this Toyota garage and therefore it was unlikely to have been a situation in which she should have been on first name terms with Mr Traynor.  It is also highly unlikely that a paying customer would have appreciated being told to “lose the attitude”.

63.	From Ms Bolton’s note of the meeting on 25 August 2015 it seems that Mr Hillis had however been relatively unconcerned about Mr Traynor’s complaint.  He stated he knew of only one complaint, which must have been Traynor complaint, “which he is aware of and is being dealt with.”  The only other complaint to which Mr Hillis had referred was one relating to not allowing a customer’s dog in the showroom which was being dealt with by Mr Gilmore.  

64.	This meeting seems to be largely positive.  Mr Hillis indicated that they had speeded up the recruitment process to replace Ms McMurray and that a replacement had been appointed internally.  The replacement had been a technician who would be starting on a four week trial on the following Monday.  That seems to have been a relatively quick recruitment exercise and shows that the respondent had been treating the short staffing as a serious matter. 

	Mr Hillis, again according to Ms Bolton’s note, confirmed that the claimant would remain having her day off (the Wednesday) and that support measures would be put in place.  Mr Hillis also agreed that Ms Bolton could “pop in” the following week to see how the claimant’s first week with Ms McMurray’s replacement had gone.  

	All of this seems to have been consistent with Mr Hillis and the respondent, attempting to make the initial adjustment work.  The speed of the recruitment of the replacement for Ms McMurray, the facilitation of Ms Bolton to interpose herself in the working arrangements of the department, and the failure to take any disciplinary steps in relation to any of the customer complaints, do not support the claimant’s allegation that the respondents had been trying to get rid of her or that the respondent had been trying to discriminate against her, harass her or victimise her.

65.	In September 2015, the follow-up meeting with Ms Bolton was postponed for a week because Mr Hillis was in England.  That meeting took place on 10 September.  Mr Hillis indicated that the purpose of the meeting had been “to review recent customer complaints”.  Again, there had been no suggestion of disciplinary action or of “getting rid of” the claimant.

66.	On 9 September 2015, Mr Hillis sent an email to the claimant.  That email stated;

		“As discussed previously we have received a number of customer complaints from customers who you were dealing with recently that I need to discuss with you to investigate the cause of customers’ dissatisfaction.  I have confirmed that you may invite Norma Bolton from Disability Action to accompany you to the meeting with myself and you have confirmed Norma is available to meet with both of us at 11.00 am tomorrow.”

	Mr Hillis gave the names of the customers and details of the vehicles involved.  

	Mr Hillis did not give further details of the complaints in that email.  However the claimant had been the service adviser and these had been complaints about service.  If they were to be investigated, then she would have to be involved.  The fact that Mr Hillis was again willing to allow Ms Bolton to participate in this matter does suggest that at this stage Mr Hillis and the respondent had still been trying to make the initial adjustment work.

67.	Ms Bolton’s records indicate that on receipt of the email from Mr Hillis, the claimant had been able to phone Ms Bolton to state that she now had the list of complaints and that she had been sufficiently familiar with the detail of the complaints to state that “she did not feel there was any foundation for any of them, she now felt that this a witch hunt and she felt that going off on long term leave”.  She did not at that point state that she had still been awaiting details of the complaints or that she had been unsure about the detail of the complaints.  Those complaints had been apparently sufficiently clarified by that email of 9 September 2015.  She would in any event have had access to the customers’ service records.

68.	It is apparent from these notes that Ms Bolton had discussed these complaints internally within Disability Action and that she had decided that she would go to meet Mr Hillis first to “see if he could substantiate all these complaints”. 

	Again it seems extraordinary that Ms Bolton was intervening to this extent in the normal functioning of the business and that this was to be allowed by Mr Hillis.  She had been dealing with customer complaints which had been a matter outside her proper role, which should have been limited to the operation of the initial adjustment.

69.	Ms Bolton met Mr Hillis before the meeting.  She told Mr Hillis that a long list of complaints “could appear as nit-picking”.  She asked him if he could “substantiate these complaints”.  He stated that he could and that his main concern had been that these complaints appeared as a cluster and that the feedback from customers had a common vein running through it; ie that the claimant had not dealt with them in a welcoming and understanding manner and that they had been dissatisfied with her attitude.  Mr Hillis stated that he had been aware of the claimant’s defence that there had been exceptional staffing circumstances which had left them short-staffed and that she had been feeling under pressure.  He told Ms Bolton in the full meeting that he had been surprised at how quickly things had gone wrong.  He stated that the purpose of the meeting had been about informing the claimant, getting feedback and recording this as a concern together with putting in place extra support.  This could not be described as a punitive process; much less a “witch hunt” by the respondent.

70.	The meeting in full proceeded.  Ms Bolton recorded that the claimant had responded to each complaint and had given an explanation for each complaint.  Again there is no suggestion that insufficient details had been provided to enable any such response, despite the argument made on behalf of the claimant to this tribunal that insufficient details had been provided by the respondent to the claimant.

71.	It is notable that Ms Bolton recorded that the claimant had “said she wanted to apologise to customers and phone them personally.”  In the event, Mr Hillis said he had dealt with the customers himself and that it had not been necessary for her to phone them and apologise.  

	The tenor of the case before us was that this focus on complaints had been entirely unjustified and that it had been a “witch hunt”.  That argument is entirely inconsistent with the claimant wanting to apologise personally to each customer and with this being recorded by Ms Bolton who had clearly been acting on the claimant’s behalf and who had been seeking to further her interests at this time.  The claimant had been in a customer service role.  Complaints from customers could not have been ignored, even if it were eventually determined that the complaints or some of them had been misconceived or exaggerated.  A “long list” of complaints, or a “cluster” of complaints were properly a matter that an employer could investigate.  That had not been “nit-picking” or a “witch hunt”.

72.	Again this meeting seems to have been largely positive.  Mr Hillis agreed to see if they could put in place further support and regular “catch-ups”.  He agreed that if the claimant was having a bad day she could move off the front desk and do administrative work until she felt able to face the public.  He agreed to further training. 

	Again no mention was made of disciplinary action or of the initial adjustment ending or of any punitive steps.  All of this seems consistent with the initial adjustment being maintained by the respondent.  None of it is consistent with discrimination, victimisation or harassment.

73.	The normal six month review of the operation of the disability action scheme was arranged to take place on 13 October 2015 with the claimant and with Disability Action.  The respondent fully co-operated in making those arrangements.  In the event, the claimant went off on sick leave and the review was cancelled until 19 October 2015, again with the full co-operation of the respondent.  

74.	On 22 October 2015 the claimant emailed HR to determine her holiday entitlement.  Her understanding at that point had been that her holiday entitlement had been reduced pro rata ie that it had been reduced as a consequence of the reduction in her hours in the initial adjustment.  It was clarified the next day by HR that her holiday entitlement had not changed.  

	Mr Hillis replied to HR on that day indicating that his understanding had been that she had been entitled to pro rata holidays only.  That had obviously been the claimant’s own understanding.  He stated;

		“I feel MC is trying to exploit the goodwill of the company as extended to her –”

	It appears to be the case that both the claimant and Mr Hillis had felt that holiday pay entitlement had been reduced pro rata and that HR had felt that it had not been reduced pro rata.  None of this appears to suggest that Mr Hillis or anyone else in the respondent organisation had intended to or had tried to treat the claimant unfairly.  The most that it suggests is that Mr Hillis felt that the claimant’s holidays should have been reduced pro rata with the reduction in her hours and that not doing so was too generous.  He nevertheless accepted the ruling from HR.

	That does not suggest discrimination, victimisation or harassment.  Mr Hillis’ opinion that holiday entitlement should have been reduced pro rata had not been an unreasonable view.

75.	The request for the advertisement to be placed on the Looker’s website for Ms Armstrong’s replacement was made on 16 October 2015. 

	The claimant sought to argue that this had been an excessive delay and that it showed unlawful discrimination.  The replacement for the full-time role of Ms McMurray had already been recruited promptly.  That had been the more significant role, because it had been a full-time service adviser role.  Ms Armstrong’s role had only significantly impacted on the claimant on Wednesdays; her day off.  The claimant had maintained that rota.  When Ms Armstrong’s absence would have had the most impact; on Wednesdays, the claimant remained off work.  Ms Armstrong’s absence would have had less impact on the claimant and more direct impact on the rest of the service team, who would have had to cover that absence.  

	There was no evidence that the respondent had cancelled or suspended the initial adjustment during this period, pending any recruitment of a replacement for Ms Armstrong.  It seems clear that the respondent did its best to maintain the initial adjustment using the staff who had been available.

76.	On 19 October 2015, Mr Hillis wrote to the claimant, Ms Bolton and Ms Kershaw indicating that during the meeting later that day he would like to take the opportunity to discuss;

		“Customer complaints, four day week, and training”.  

77.	On the same day Ms Bolton wrote back to indicate that any outstanding processes should be discussed outside of the review of the disability action programme and that they could be addressed at “another suitable time”.  

78.	The meeting on 19 October 2015 appears in many respects to be positive.  Ms Bolton and the claimant had been happy that the reduction in hours had helped the claimant.  Ms Bolton in particular stated that it had been good that the respondent had made reasonable adjustments to the four working days.  Mr Hillis stated that if the claimant came to him and stated that she was having a low mood, the respondent would be supportive.  The claimant, when asked whether she felt anything needed to change, stated “no”.

79.	Mr Hillis stated that there had been a number of incidents where customers had felt that the claimant’s behaviour had been offhand.  Again, he did not suggest disciplinary action.  He stated “it is a risk factor we have to keep under review”. Given the claimant’s previous intention to apologise and her previous acknowledgement of mistakes, that does not seem an excessive or inappropriate attitude on the part of Mr Hillis.   Ms Bolton suggested that £2,500 could be looked at by way of a further subsidy in respect of a “buddy service” to enable another employee to accompany the claimant on training in England.  That was accepted by the respondent.

80.	Mr Hillis indicated that he would be replaced as manager in about 5-6 weeks.  Mr James Thompson had been promoted to manager and Mr Hillis was moving elsewhere in the organisation.

81.	In relation to complaints, Mr Hillis stated that if the claimant was having a bad day she needed to inform him.  He stated another possibility would be to look at an administrative function “that was not a customer facing role”.  He stated that they had employed Ms Armstrong to “fill in” but that had not worked out.  He stated that;

		“This presents us with a difficulty.”

		“If you are having a bad day we do not have another role we can push you into.  If you come into work and you are suffering from a low mood then what can we do?  I do not have an alternative”.

82.	Mr Hillis made it plain that no disciplinary action had been planned in relation to the customer complaints.  He stated;

		“I have agreed with our GM that with this level of complaints it would have been warning letter.”

	Mr Hillis continued;

		“Need to have an assurance from Marie-Claire that she can deliver.  We are a small team.  Puts us under pressure for resource.  I cannot guarantee.  I cannot move a magic chess board.  The point relates to Barbara.  For a number of reasons it did not work with handover.   Has knock-on effect.  We have gone back to press with adverts.  My concern is the sustainability of this role in a four day week.  Depends on having someone to do the fifth day.   Incoming manager may decide that a four day week will have to be reviewed.  If this does not work out it presents us with an issue.  We have had an update on these three points and we have no option but to try and get a job-share for the fifth day.”

	This had been an indication from the respondent that the initial adjustment had not been working; principally on the Wednesdays when the claimant had been absent.  However, it is notable that the meeting concluded with; “we have no option but to try and get a job-share for the fifth day”.  The respondent had still been attempting to make the initial adjustment work.

	The reference to “gone back to press” had been inaccurate.  The respondent advertised the vacancy in the normal way ie on the Lookers website, approached agencies and used a job fair.  The inaccurate reference does not appear to be significant.

83.	The respondent had tried to recruit a replacement for Ms McMurray for one day per week.  It had used its own website.  That website was well known in the industry and received a significant number of public “hits”.  The respondent had also used a job fair and had tried to interest agencies.  Those agencies had indicated that a part-time role of this nature would not attract much interest.

	The claimant sought to criticise the respondent for not using traditional press advertisements.  That seems unfair.  Such advertisements are less used today than previously.  A great deal of job recruitment is conducted on line.  In any event, the tribunal accepts the clear evidence from the respondent that significant and reasonable efforts had been made to recruit a replacement for the Wednesdays and that those efforts had been unsuccessful.

84.	A further review meeting was arranged for 5 November 2015.  Again the respondent facilitated both that meeting and the attendance of Ms Bolton from Disability Action at that meeting.  

85.	The respondent again agreed to the provision of a “travel buddy” to facilitate training in England.  This was again not consistent with a plan being in place to get rid of the claimant, or a plan being in place to persuade the claimant to resign.  It was not consistent with discrimination, victimisation or harassment.

86.	At the meeting, Mr Hillis confirmed that they had received no response to their advertisement for an employee for one day to replace Ms Armstrong.  They had found it difficult to occupy Ms Armstrong on her additional day with administrative duties.  The tribunal cannot conclude that the respondent had been required to advertise for a two day employee when an employee had been required for one day only.  That would not have been a reasonable step in all the circumstances of the case.  When she left, the respondent had tried operating the initial adjustment using the existing staff.  However Mr Hillis stated “James and myself have been putting in 60 hour weeks which is the impact it is having not having anyone in that role.  Also we need to bear in mind that James also has a disability and we have a duty of care to him”.  The claimant and Disability Action did not appear concerned about the impact on other staff, particularly about the impact on Mr Thompson.  The claimant’s only reaction had been to ask if the respondent did not have a duty of care to her.  Mr Hillis stated that they now had to look at the viability of the current adjustment, ie carrying out the service adviser post on a four day week with Saturdays on a rota.  It was not feasible and was not meeting business needs.  He stated that the option would be for the claimant to either move back into a full-time post or to look within the organisation to see if there is any other suitable positions offering suitable hours.

87.	At that point the claimant “made it clear” that she could not return to a full-time role and in particular that she could not take up any other post ie an administrative role, that did not carry a company car with the post.  

	This had been a definite position on the part of the claimant.  It had effectively ruled out viable alternatives and it showed both a failure to co-operate and an unrealistic attitude on the part of the claimant.  

	It was also clear that the claimant could have leased a car on a PCP arrangement.  With her staff discount and with the avoidance of the company car tax penalty, the cost of owning her own car may not have been as significant as she now argues.  It was in any event a possibility that the claimant had not been prepared to even consider.

88.	The claimant felt unwell and went home.  She informed Ms Bolton that she would take annual leave the next day.  When the respondent did not permit annual leave, she went off on sick leave.  She was then signed off on sick leave for two weeks on 10 November 2015.  

89.	At the meeting on the 5 November, the claimant had also stated that she knew somebody who had wanted to work for one day a week to replace Ms Armstrong.  She stated that it had been “Valerie from CRC”.  Mr Hillis was clear that Valerie did not want to take the role.  The claimant appeared to accept that position at that meeting.  She stated that “her exact words were I wanted to apply but I decided not to because I know how girls are treated in this company they never get promoted”.  

	That argument was again put forward in the tribunal ie the argument that Valerie would have taken the one day job.  However it is clear, and it had been clear to the claimant as early as 5 November 2017, that Valerie had not wanted to take the job.  It was not for the claimant to speculate about why Valerie had claimed not to want to take the job.  The fact is she did not want to take the job.  It is unclear why the claimant wished to persist with the argument that Valerie had been an obvious replacement for Ms Armstrong.

90.	It was clear that at this meeting on 5 November Mr Hillis had stated that the replacement post for Ms Armstrong had been advertised on the website.  It is also clear that he had stated that it had been marketed in a job fair and that it had been “promoted” to a number of agencies at the job fair.  There had been no interest.  He stated that the agencies to whom the first-named respondent had spoken had felt that the vacancy was completely unsuitable for somebody who was looking for a part-time job.  Mr Hillis stated in evidence this had been due to the particular skill set applicable to the job rather than to the hours ie rather than to the fact that it had been for one day per week.

91.	Mr Hillis also made the point that while Mr Thompson had been helping out in the operation of the initial adjustment, he had also suffered from a medical condition (which in the event had involved surgery and several delays to hearing of this case).  The claimant had probably not been the only disabled person whose needs had to be taken into account by the respondent.

92.	Mr Hillis stated according to the respondent’s note of the meeting on 5 November 2016;

		“We need to draw a line under this now, as a company.  We have run a four day working week for six months now.  We recruited when you came on board and recruited again.  We are not getting applications for that role.  A four day week does not function in that role; the service adviser role can only be a five day week role.  On that basis we don’t have any further options.  We are open to ideas that you and Norma want to bring.  We have got to move this forward.  The next step will be a formal meeting to review the viability.  We are going to look at other options that might work with a four day week.  Norma and Marie-Claire you can also propose other suggestions.”

93.	As indicated above, the claimant did not attend work on Friday 6 November 2015.  She did not telephone to report her absence.  Mr Thompson, her line manager, had to telephone her.  She had not been due in on Monday 9 November 2015.  She did not attend work on Tuesday 10 November 2015.  Again, her line manager had to telephone her to “find out what was happening”.  The claimant told him she was contacting her doctor.  He heard nothing further form the claimant and so he telephoned her again.  He was told by the claimant that she would be getting a sick line for a few weeks.  She had been unable to tell Mr Thompson the start date or the end date of that sick leave.

	Mr Thompson reported the sequence of events to Ms Kershaw in HR.  There was no suggestion of any disciplinary action being taken against the claimant for failure to follow absence notification procedures.  This was again inconsistent with the claimant’s argument that the respondent had been trying to get rid of her or that it had been discriminating against her, harassing her or victimising her.  Few employers would have regarded it as acceptable that a line manager had to repeatedly contact an absent employee to find out what was happening.

94.	On 11 November 2015, the claimant emailed Mr Hillis and Ms Kershaw to state;

		“Hope you are well.  Regarding our meeting on Thursday 5 November 2015 you explained to myself with Norma from Disability Action in attendance that the company are unable to provide my reasonable adjustment under the Disability Discrimination Act 1995 of a four day week in my role moving forward.  You stated that you wish to hold a formal meeting in relation to my current reasonable adjustment in two weeks’ time, I feel my attendance at this meeting would be inappropriate until I receive some notification as to what was discussed, options given and expectations moving forward in written format.  I also request minutes of the meeting be forwarded to myself”.

	This may be viewed as a less than reasonable response from the claimant.  The respondent had explained the real difficulty that it had been experiencing with the initial adjustment.  It had invited Ms Bolton to a meeting to discuss the way forward with the claimant and had sought their suggestions.  The claimant had ruled out any post that did not carry a company car, or a return to full-time work.  She had expressed a reluctance to take a lower salary.  In essence, she had regarded the initial adjustment, which had clearly not been working, as “my” adjustment and appeared to believe that it could not alter, even where it had been no longer a reasonable or workable adjustment.  The insistence on a “notification” or a “written format” was unreasonable.  There had been a clear history of the respondent meeting regularly with the claimant and Ms Bolton to discuss the claimant’s disability and its impact on work.  There was no reason why this could not have continued.

95.	An appointment was arranged with the respondent’s occupational health doctor on 14 December 2015 to determine whether or not the claimant was fit to attend a further meeting to discuss the viability of her four weeks’ working pattern.  

96.	The minutes of the meeting on 5 November 2015 were eventually forwarded to the claimant.  The brief delay was not suggestive of discrimination, victimisation or harassment.

97.	On 14 December 2015 the claimant wrote to Mr Hillis indicating that she felt that the minutes were inaccurate and that she would forward amended minutes “with Norma’s approval” she stated; 

		“I request a formal letter stating the intentions, expectations and views for the meeting intentions and points of discussion as I am very anxious about the meeting before I can confirm attendance.”

	The claimant was refusing to engage in open discussion about the way forward without having a “formal letter”.  That was unreasonable.  The initial adjustment had not been working and the claimant had been asked to discuss the way forward and had been offered the assistance of Ms Bolton at the meeting.

98.	On 12 December 2015 the claimant was invited to a meeting on 18 December.  That was to discuss the viability of her four day working week.  It would appear that the claimant had read the invitation promptly.  

99.	On 17 December 2015 (199) the claimant wrote to state;

		“I am unable to confirm until I have a formal letter as requested below.”

	The claimant had some responsibility to co-operate with the open discussion which had been offered by the respondent.  She had effectively closed off many alternative adjustments and had still been insisting on a formal letter when none had been required.  The history of the initial adjustment had involved frequent and open discussions between the claimant, Disability Action and the respondent.  Insistence on formality at this stage had been unreasonable and showed a lack of willingness on the part of the claimant to reach a resolution in accordance with the 1995 Act.

100.	The respondent made further efforts to invite the claimant to attend a meeting to discuss the viability of the initial adjustment.  On 7 January 2016 another letter was sent to her requesting her attendance “to discuss the feasibility of continuing your current role on a four day working week”.

	That letter stressed;

		“Again the purpose of the meeting is to discuss the feasibility of continuing your current role on a four day working week including any alternatives and/or any suggestions you may have so that we can consider how to sustain you on a four day week.  This is a consultation meeting only to seek your views and explain the business circumstances.  Following the meeting, the company will consider all the information including any information provided by before considering the next steps.”

	The letter again asked the claimant to bring Ms Bolton from Disability Action.  It expressly and carefully invited suggestions and did not rule out finding some way to sustain the four day working week.  The tribunal concludes that the respondent had again been trying to genuinely engage with the claimant and with Ms Bolton in an open discussion of the way forward.

101.	On 12 January 2016 the claimant indicated that Ms Bolton was unwell and she asked for the meeting to be rescheduled.  The respondent replied on 12 January 2016 to indicate that Rachel Kershaw would be attending from England and had already arranged flights and accommodation.  Mr Hillis suggested that if Ms Bolton was unable to attend, somebody else from Disability Action could attend in her absence.  

102.	The meeting was held on 14 January 2016.  Ms Louise McQuillan, Ms Bolton’s line manager, attended on behalf of Disability Action. 

103.	The claimant attended together with Mr Hillis and Ms Kershaw.  Ms McQuillan compiled notes of this meeting.  It seems clear that Mr Hillis opened the meeting by indicating that the purpose of the meeting had been to look at the current adjustment of a four day week and to consider the feasibility of that adjustment.  He stated that that adjustment needed to be reviewed.  

	He stated that the only role apart from the service adviser role which carried a company car was that of sales executive.  The only other current roles which might become available were administration roles and they would not include a company car.  The claimant objected to those roles in any event because her salary would not be as high.  

104.	Mr Hillis made it plain that there was no criticism of the claimant’s work when she was present.  However they had tried to recruit an individual to stand in for the day on which the claimant was not at work.  They had been unable to do so.  That had had an impact on the working of the team and they also had to be careful of the position of Mr Thompson who also had a significant medical difficulty which had been exacerbated by additional pressure.  

	Mr Hillis stated that there were always positions being advertised.  One option was to look at such a different role but again it would be five day roles.  He stated that the company had no other options at present other than going back to a five day week unless the claimant could bring some suggestions.  

105.	There was a detailed discussion of the claimant’s weekly appointment with her therapist.  Mr Hillis pointed out that this gave difficulties with cover which would be apparent with a five day week role.  He asked how long those appointments would continue and he also suggested that an enquiry should be made to see whether the appointments could be made out of hours or early in the day or late in the day to minimise disruption.  

106.	Mr Hillis was quite clear that the service adviser role was unique and specialised.  The role could not be left unmanned.  Given the requirement to cater for holidays and sick leave, a “further 44 days of non-productivity” could not be managed within that post.  In the absence of someone who would be willing to work when the claimant was not present and given the failure to recruit such a person, the current arrangement had not been working.  

	It seems plain that by this point the respondent had reached a very settled decision that unless something surprising happened, the initial adjustment had not been working.  It is equally clear that the claimant was unwilling to contemplate any administrative role which would be a role which did not attract a company car and which would attract a lower salary.  It seems that her only suggestion was to work 9-5 five days a week as a service adviser.  That again would create significant difficulties at the busier parts of the day early in the morning and late in the afternoon which would then have to be covered by others including Mr Thompson who was himself probably disabled for the purposes of the 1995 Act.  

107.	On 19 January 2016 Ms Kershaw wrote to the claimant as a follow-up to the meeting on 14 January 2016.  She had stated;

		“I refer to our meeting on 14 January 2016 when we considered the best way forward in conjunction with Disability Action to accommodate your wish to work reduced hours.

		We considered various options but in particular one of the difficulties was your psychologist appointment currently each Wednesday.  You advised the appointment is mid-morning and with travel time would normally last approximately 1-1½ hours.

		In order for us to consider accommodating you to attend this appointment we require the following information in writing from your psychologist.

		1.	the normal appointment working hours and days for appointments each week

		2.	the times for the first appointment and last appointment each day

		3.	how long your appointment lasts

		4.	if your appointment could be rearranged to either the first or last available appointment each Wednesday or another day?

		5.	Approximately how long it is likely that you will attend these appointments?

		6.	Confirmation of whether the appointments are held during school term time?

	On receipt of this information we will consider the feasibility of offering you a five day working week from 8 am to 6 pm Monday to Friday with the accommodation of allowing you to attend your psychologist appointment.”

	It seems that the respondent had been willing to accommodate the ongoing therapist appointments as part of any new reasonable adjustment.  It does not seem unreasonable that it should have tried to minimise the disruption that would be caused by those ongoing appointments should the claimant be moved to another post within the organisation.

108.	On 22 January 2016 the therapist replied indicating that she was unable to put a timeframe on the need for appointments and indicating a lack of flexibility in relation to appointment times.  She also stated she would be on leave for most of July and August.

	That letter did not allow for any flexibility to accommodate the needs of the employer and to minimise the disruption caused by the appointments.

109.	On 19 January 2016, the trainee, Adam Henry who had been moved from a technician post to replace, on trial, Ms Anderson, mocked the claimant’s depression in front of Mr Thompson by stating “sure why don’t we all sit behind our desks and cry and get everything we want”.  The claimant accepts that Mr Thompson immediately told him to stop those remarks.  It seems clear that Mr Thompson had spoken to Mr Henry immediately thereafter and that he had warned him that if there was a repetition there would be disciplinary action.  It seems equally clear that there had been no repetition.  This seems to have been effective and appropriate action taken by the respondent in relation to a trainee.

	The claimant made much of this isolated incident.  However it appears that the respondent had acted quickly and effectively.  It also seems clear that Mr Henry had been young and a trainee.  The respondent had engaged in detailed disability awareness training arranged by Disability Action and had dealt firmly and appropriately with the incident when it occurred.  Given the prompt and effective action taken by the employer in this matter, and its commitment to training, any allegation for harassment against the employer, as opposed to any allegation of harassment against Mr Henry (which has not been made) must fail.    They had done everything practicable to prevent the incident and to prevent any recurrence.

110.	The claimant alleges that on 21 and 22 January 2016 she had conversations with Mr Thompson, who had been her line manager.  She alleges that he told her not to submit a grievance because it might have an impact on her keeping a job and that “they” were simply waiting an opportunity to terminate her employment.  She also stated that he had told her that a district manager from Toyota had described her as a problematic member of staff.  

	Mr Thompson denied having made such remarks.  

	This is a straight “he said/she said” type of situation.  However it seems unlikely that Mr Thompson, given everything that had been going on, would have been as unwise as is alleged in making such statements to the claimant.  The tribunal also has some concerns about the claimant’s credibility: in particular about the way in which she reported incidents to Dr McGarry.  That is dealt with later in this decision.  Furthermore Disability Action did not raise these matters with the respondent even though the claimant states that she raised those matters with Ms Bolton and although it seems Ms Bolton had advised her to take legal advice.

	The tribunal unanimously concludes on the balance of probabilities that the alleged remarks had not been made.

111.	On 29 January 2016, the claimant states that she had been struggling with the department all day on her own.  She stated that Mr Thompson had been at a meeting and that Mr Henry had not been at his desk.  She stated that several members of the department had complained about Mr Henry and his attitude.  She stated that Mr Thompson had returned from a management meeting and “was in a terrible mood”.  She stated that she had dealt with an extremely rude and aggressive customer, and had asked for help from Mr Thompson.  Mr Thompson told her to deal with it herself.  At that point the claimant lifted her bags and left the premises.  She spoke to Mr Henry in the service department on the way.  She denies telling Mr Henry that she had resigned.  She stated that she telephoned Mr Thompson that evening and he had told her that it would be best if she rested and came in the following day.  

112.	In relation to this point, Mr Thompson stated that when he returned from a management meeting, he had been confronted by the claimant who had wanted him to deal with an issue concerning a customer.  He had stated that Mr Ritchie had replaced him as service team leader and that he could have helped the claimant in his absence.  He stated that he had then been subjected to an outburst of bad temper and bad language from the claimant concerning Mr Henry and the company.  He stated that the claimant had stormed out of the office and that she had yelled that she would not be back.  When passing through the workshop she had shouted to anyone listening that she would not ever be back and she had said goodbye to everyone.  He had advised HR then that she had just walked out of the business and that she had told him that she would not be back.  He accepted that Mr Henry had been a trainee and that he suspected that Mr Henry had been “ducking work” when Mr Thompson had been away at the management meeting.  He accepted that the claimant had taken on more than her fair share of customer work that morning. 

	The claimant rang him when he was driving home that evening.  He stated that he had not come after her because he had thought it would be best to let her calm down.  She offered to come into work the next day as it was her Saturday on the rota.  He told that he had already organised cover with Mr Henry because she had said she was not coming back.  However he told her that if she was up to it she could come in as they were extremely busy.  She did come in but had stayed for only an hour approximately and then left.  

	In reality, there does not seem to be much difference between the two versions of events.  The only significant point of difference is whether the claimant had actually stated that she had resigned.  Given that it was clear that the claimant had been distressed and angry, it is more likely than not that Mr Thompson’s version of events is correct.  He seems to have been, and still seems to be, sympathetic to the claimant.  It is unlikely that he would lie about this point

113.	In any event, the verbal resignation, whether it had been meant or not, was not accepted at that point by the respondent.  The claimant went on a period of sick leave from 1 February 2016.

114.	On the 3 February 2016 Ms Kershaw wrote to the claimant inviting her to a meeting on 11 February 2016 to discuss the information provided by the therapist and the possibility of its impact on any adjustment.  It indicated again that she could be accompanied by somebody from Disability Action.  

115.	On the same date, a further and separate letter issued to the claimant regarding her leaving work.  It stated;

		“A number of matters have come to light regarding your recent behaviour, in particular inappropriate conversations with your line manager, James Thompson on 21 and 22 January 2016 and leaving company premises without permission on Friday 29 January 2016.  

		We would like to speak to you about these matters by way of an investigatory meeting.  

		Richard Hillis and I would like to meet you on Thursday 11 February 2016 at Charles Hurst Toyota, Boucher Road at 4.00 pm.

		You may be accompanied at the investigatory meeting by a current colleague or trade union rep or, should you prefer, a representative from Disability Action.  

	Given the manner on which the claimant had acted on 29 January 2016, the proposal for a disciplinary investigation appears reasonable in all the circumstances.  It cannot reasonably be regarded as an act of unlawful discrimination or as a breach of contract.  The letter had allowed the claimant to be represented by Disability Action, which had been a significant departure from the normal requirement that any representative should be a trade union representative or a colleague.

	In any event, if the respondent had wished to get rid of the claimant, it would simply have accepted her verbal resignation on 29 January 2016.  That fact that it did not do so, is again entirely inconsistent with the claimant’s allegations that the respondent had been trying to get rid of her and trying to force her to resign.  When she did resign, the resignation had not been accepted.

116.	On 5 February 2016 the claimant submitted a grievance. 

	That was a grievance “regarding revoking the reasonable adjustments previously agreed with the company due to my disability”.

	The reasonable adjustment had still been in place and had not actually been revoked.  That said, it was clear that the respondent had by that stage come to a firm conclusion that the initial adjustment was no longer working.  It therefore may be a technical matter as to whether or not it was correct to say that the adjustment had actually been revoked at that point.  The adjustment had clearly been under review.

117.	The claimant stated that;

		“I would feel it highly inappropriate that anyone named or lodged against in the ongoing proceedings (the earlier tribunal proceedings) and my recent meetings would not have any part of this grievance procedure and I am going to request that an independent human resources representative would be considered to investigate this grievance.”

118.	On 9 February 2016, Mr Hillis wrote to the claimant advising her that her grievance would be discussed at the same meeting on 11 February which would discuss the information received from her therapist.  Again she was advised that she could be accompanied by a work colleague or trade union representative or indeed by a representative from Disability Action.  That again had been a significant departure from the normal rules.

119.	On 9 February 2016, the claimant wrote to Mr Hillis stating that she would not be attending any meetings at this stage because of medical advice.  The meeting was cancelled.  The claimant was asked to get clarity from her GP as to when she could attend meetings.  The respondent stressed in relation to the adjustment that “please be advised that no decision has been taken at this moment in time”.  

	Again, while no actual decision had been made, it seems clear that the respondent had reached a firm view at this stage that the initial adjustment was no longer working.  In all the circumstances, that had not been an unreasonable approach from the respondent.

120.	The claimant’s GP provided a letter on 19 February 2016.  That letter seems fairly non-committal.

121.	On 24 February 2016, despite her medical difficulties, the claimant attended the Toyota dealership and spoke to several colleagues.  

122.	On 1 March 2016, Ms Kershaw wrote to the claimant pointing out that she had attended the premises on 24 February 2016 and that the respondent wished to reschedule the meetings for the 8 March 2016.

	Again the claimant was advised that she could be accompanied by a work colleague or trade union representative or indeed by someone from Disability Action.

123.	On 4 March 2016 the claimant wrote to say;

		“As you are aware I am currently on sick leave from work due to heightened anxiety and depression.  You have received a letter from my GP explaining same, I will speak to my GP on Monday for further clarification that you obviously require as I am unfit to attend meetings at present.  Certainly if you require an independent health assessment I am consenting to this.”

124.	On 9 March 2016 the claimant wrote again to Mr Hillis stating;

		“I have had a consultation with my counselling therapist Una Boyd today who has advised that should you seek any further clarity than my GP’s letter the company can contact her on the telephone number provided on her previous correspondence.  Should you need anything in writing I have given my consent for Una to provide this for you?  Also please note I consent to any referral the company may wish to make to occupational health.  My grievance raised with my line manager James has yet to be scheduled for a hearing and therefore I seek clarity as to which neutral party I should be corresponding with as yourself and Rachel are part of the ongoing meetings held in relation to my grievance and be (SIC) inappropriate to correspond with yourselves moving forward.  Please can you provide me with these details?  I have suggested that the grievance at this stage should maybe pass to a third party neutral for independent consideration”.

	Again the claimant seems to insist on an “independent third party” or “neutral party” to deal with her grievance.  This seems to have been an unreasonable attitude on her part.  The claimant had not been suggesting that another manager within the respondent organisation dealt with the grievance.  She was insisting on someone “neutral” or “independent”.  In her grievance she used the term “independent Human Resources representative”.  In this email she referred to a “third party neutral”.  It is therefore not the case, as has been agreed on behalf of the claimant, that her request could easily have been dealt with by appointing another manager from within the respondent organisation.  The claimant had clearly been suggesting that someone from outside the respondent organisation should have been appointed.

125.	An occupational health report was compiled on 22 March 2016.  That report does not seem to be of much assistance.  

126.	On 16 March 2016 her sick pay was reduced to statutory sick pay.  However it seems that this had been an ordinary working out of the employment contract.  There is no evidence or allegation that it had been in any way related to victimisation or harassment or an act of unlawful discrimination.  It would have occurred in the same way with any other employee with the same absences.  It had not been a breach of contract.

127.	On 25 April 2016 Mr Hillis again wrote to the claimant seeking to reschedule the meetings on 12 May 2016.  

	This does not seem unreasonable.  The claimant criticises it at paragraph 39 of her statement.  However if the respondent had ignored her grievance, and her response from the therapist or indeed had failed to progress the consideration of her disciplinary investigation, criticism could equally have been made.  Given that the claimant had attended the premises on 24 February 2016, trying to reschedule the meetings had not been unreasonable.  

	In any event, claimant submitted a further sick note and the claimant did not attend any of the meetings as rescheduled.  

128.	Her last sick line was due to expire on 23 May 2016.  Mr Hillis wrote again to the claimant on 16 May 2016 inviting her to two meetings on her first day back.  He stated;

		“We cannot continue to leave these matters in abeyance”.

129.	The letter of 16 May 2016 stated that;

		“You will not be required to attend work before the first meeting, therefore report to the reception desk at Charles Hurst Toyota at 10.00 am on Monday 23 May 2016.”

	The claimant stated this caused her some alarm (see paragraph 40 of her statement) because on the last occasion when she had been told to attend work late, she had been suspended.  

130.	The claimant replied to Ms Kershaw and not to Mr Hillis, on the same day, 16 May 2016.  She stated;

		“I have been receiving various emails from Richard Hillis throughout my absence on sick leave.  As you are aware I suffer from clinical depression and anxiety disorder.  I am sure you can appreciate each email I receive is causing me copious amounts of stress.  Please also be advised Richard is currently trying to hear my grievance in relation to my reasonable adjustment in his view to returning me to full time work or offer an alternative role.  These are his views and therefore the grievances in relation to him and therefore he should not be hearing the grievance.  Please also note that there are current lodged tribunal proceedings in relation to this matter and it would be inappropriate for me to enter into discussions with anyone in relation to this.  I have not informed my manager James Thompson I am returning to work on 23 May.  This is when my current sick line expires and will need to be reassessed by my GP for her to make that decision.”

	It is notable that in this email to Rachel Kershaw on the same day as the claimant had received the letter from Mr Hillis, the claimant did not raise this issue about a 10.00 am start and did not say how offended and worried she now states she had been at that point.  This seems to be something which only occurred to her at a later date; possibly just before the current tribunal.  The tribunal does not accept that the claimant had been in anyway concerned about the 10.00 am start.  If she had been, she would have raised it with Ms Kershaw at the time.

131.	On 25 April 2016 the claimant produced a further sick line for four weeks which ran until 23 May 2016.  

	The claimant resigned on 24 May 2016, after the expiry of the latest period of sick leave.

132.	On 24 May 2016, the claimant emailed Mr Thompson to resign.  She stated;

		“It is with deep regret that I must inform you that as and from today 24 May 2016, I am resigning my position as service adviser with Charles Hurst Toyota due to the actions and behaviours of the company over the past 15 months and ongoing attempts to remove my reasonable adjustment granted due to disability under the Disability Discrimination Act 1995.  Please call me at your earliest convenience to discuss arrangements.”

	There was no mention of the 10.00 am start on 23 May 2016 causing her “some fear”.

133.	In the present tribunal, the claimant argued initially that she was claiming notice pay in this matter.  However it was apparent from this letter and indeed later conceded on behalf of the claimant that this had been a resignation with immediate effect.  She had sought to argue initially that the reference to “discussing arrangements” had been to deal with notice.  However that argument was inconsistent with the first two lines of her resignation.  Furthermore the words “discussing arrangements” had been more consistent with simple arrangements to return ID, to return keys and above all to return the company car.

134.	There is no evidence at any stage that the claimant had been asked to return her company car during her lengthy period of sick leave.  This had been a courtesy car and its absence must have caused significant difficulty to the operation of the service department during the months in which the claimant was absent.  In fact, it seems clear that the car had not been collected until the end of May 2016.  That had been in itself an extremely generous position taken by the respondent and entirely inconsistent with the claimant’s allegation that the respondent had been trying to get rid of her, to victimise her, to harass her or and to discriminate against her.

Medical History

135.	The claimant stated to Dr McGarry in his 2017 assessment that when “one of the trainees”, who must have been Mr Henry, had “mocked my depression”, “the managers present did not reprimand the trainee for making this dismissive comment.”  That was clearly untrue, even on the claimant’s current version of events.  The claimant has accepted that Mr Thompson had immediately reprimanded Mr Henry and that Mr Thompson had further spoken to Mr Henry immediately thereafter and had warned that any repetition would result in disciplinary action.  It seems plain that she had misrepresented the position to Dr McGarry.  

	The claimant also told Dr McGarry that she had been told that the initial adjustment of reduced hours had only been a trial.  That does not appear in her current evidence and seems to be something that she told Dr McGarry, possibly in an attempt to get his sympathy.  She had again misrepresented the position to Dr McGarry.

	The claimant had also told Dr McGarry that, in relation to the customer complaint, she “had never been given any detail about these complaints”.  That had clearly been untrue.  She had responded in detail to those complaints and had offered to apologise directly to the customers.

	She also told Dr McGarry that she had resigned because she was “aware there was going to be no resolution of the problem with Charles Hurst”.  She did not mention anything about being required to come in at 10.00 am on 23 May 2016 or about being in fear of being suspended at that point.

	These matters give the tribunal some concern in relation to the claimant’s credibility.  

136.	The 2017 report noted that there was no objective sign of clinical depression, although she was still on anti-depressant medication at that stage.  It stated that “currently she is not presenting with features of a clinical depressive illness.”

Decision

137.	The tribunal decided not to read the previous tribunal decision and directed the parties to focus on the matters concerning the present claim; incidents from May 2015.  

	It was not for the tribunal to rerun the earlier tribunal claims or to hear further evidence in relation to those claims.  The tribunal had to be conscious of the need to avoid the issues which were pertinent to the present claims being obscured in a mass of evidence and argument of little or marginal relevance.  As the Court of Appeal (GB) said in Anya;

		“The result of this exercise is that the parties and their advisers may confuse each other (and the tribunal) as to what the tribunal really has to decide: as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background.  It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, or even eclipsed.  In practical terms, this may lead the case to run on for many days or weeks.”

	The comments of the Court of Appeal (GB) in relation to race discrimination cases can apply equally to disability discrimination cases.  The responsibility of the tribunal is to ensure that the focus must be on the relevant evidence.  It must also avoid rehearing or interfering with decisions of a tribunal of equal standing.

	The previous claims had related to different facts at a different time from the present claims.  The earlier tribunal hearing had been before a different panel.  It had involved different evidence from that produced in the present case.

	The tribunal is content that present case only concerned matters from May 2015 onwards and that all the relevant evidence had been produced to the present tribunal.

	For the purposes of the current claim of victimisation, it was sufficient for the tribunal to know that there had been a protected act; the earlier claims.

138.	The tribunal also determined that re-opening or even reading the earlier decision would create a risk of unconscious bias.  Its potential relevance was limited.  It was accepted by both parties that there had been earlier claims and a decision.  That decision had upheld only a reasonable adjustment claim.  By a majority, it had dismissed claims of unlawful discrimination and victimisation.  It had unanimously dismissed claims of harassment.  The fact that a finding had been made of a failure at an earlier period to make reasonable adjustments was not in dispute.  Equally, the initial adjustment, as put in place in May 2015, had remedied that situation.  That had been common case.  The earlier tribunal’s dismissal of claims of discrimination, of harassment and of victimisation could not have assisted the claimant.  Reading that decision might have prejudiced the present tribunal against the claimant’s current claims of direct discrimination, harassment and victimisation which related to a different time period and to entirely different facts.

	Therefore reading a different tribunal’s decision, or allowing evidence and argument in relation to it, when it had been reached on different evidence, and when it had considered different facts, would raise the possibility of unconscious bias to either the claimant or to the respondent.  That had not been justified by its limited relevance to the present case.

139.	The claimant sought to rely on Anya v University of Oxford [2001] IRLR 377.  That decision does not mean that a tribunal is entitled to ignore the issue of potential bias or that a tribunal must weigh in the balance evidence which is of no real relevance.  It does not mean that a tribunal should ignore its responsibility to further the overriding objective and that it should allow evidence and argument to expand exponentially and unnecessarily; increasing costs and extending the length of the hearing.  It does not mean that a tribunal should allow evidence or argument which could effectively reopen an earlier decision of a different tribunal.

140.	The decision in Anya required a tribunal to adopt a holistic approach and to make findings on all background matters raised by the claimant.  As the EAT pointed out in Kimti v Tyne and Wear Fire and Rescue Authority UKEAT/0484/12:

		“10	Where the original ET in Anya went wrong was to simply accept the respondent’s witnesses as honest and reliable.  They did not make findings as to the background issues raised by Dr Anya – “

	In the present case, the necessary findings in relation to the earlier claims are clear and have been recorded by the earlier tribunal.  The parties to the present case do not dispute that these findings had been reached and recorded by the earlier tribunal.  That tribunal had unanimously concluded that there had been a failure to put in place reasonable adjustments in a period before the initial adjustment had been put in place.  By a majority, the earlier tribunal had discussed claims of discrimination and victimisation.  By a unanimous decision, that tribunal had dismissed claims of harassment.

	It is no part of the present tribunal’s function to record different findings or even the same findings.  It is no part of the present tribunal’s function to allow evidence or argument from either party to reopen the earlier litigation, thereby obscuring the issues before the present tribunal and spending a great deal of time in so doing.

REASONABLE ADJUSTEMNTS CLAIM

141.	The first issue which has to be determined is the reasonable adjustments claim.  The question is whether the respondent had fulfilled its duty to put in place reasonable adjustments for the purposes of the 1995 Act.

142.	It is not in dispute that, at the relevant time, the claimant had suffered from a disability for the purposes of the 1995 Act.  That disability had had a substantial impact on the claimant’s day to day activities as defined by the Act.

143.	The requirement to work normal hours in the service advisor post was a provision criterion or practice which had impacted adversely on the claimant.  Those normal hours were 50 hours per week, Monday to Friday, with Saturdays on a rota.

144.	It seems to be clear that the initial adjustment, which had reduced the claimant’s hours from 50 to 40 per week and which had allowed her every Wednesday off, had been a reasonable adjustment for the purposes of the 1995 Act.  There has been no criticism of that adjustment at all from the claimant or from Disability Action.  Indeed, their complaint is that the initial adjustment had not been maintained.

145.	The legislation requires a reasonable adjustment; not a permanent adjustment.  It must be the case that adjustments can be changed as circumstances change.  An employee’s medical condition can deteriorate.  If that should occur, there will be a requirement to reassess any existing adjustment that is already in place.  Similarly, if an employee’s medical condition improves, any adjustment may then be reviewed.  Equally, if other circumstances change, any adjustment may, or depending on the circumstances, must, be reviewed.  An initial reasonable adjustment for the purposes of the 1995 Act is not set in stone.

	A “reasonable adjustment” does not mean an adjustment which is approved by the claimant or by the claimant’s advisers.  The reasonableness of an adjustment must be judged in all the circumstances of the case.

146.	In the present case, the initial adjustment had been tried.  It had failed.  It had been inevitable that it would then have to be reviewed.  Continuing to operate the initial adjustment in the absence of a replacement for the claimant each Wednesday was causing significant difficulty.

147.	The adjustment had become unworkable because of Ms Armstrong refusing to continue working in the job share arrangement with the claimant.  That cannot be laid at the door of the respondent or at the door of any individual manager.  It appears to have been a personal issue between Ms Armstrong and the claimant.  If Ms Armstrong had remained in the job-sharing arrangement, the probability is that the initial adjustment would have remained in place.

	The claimant argued that the respondent had “sought to unpick and to remove the reasonable adjustment” (the initial adjustment).  That submission was inappropriate.  It was clear from the evidence that the respondent had sought to persuade Ms Armstrong to stay but had been unsuccessful.  It had earlier made considerable efforts to recruit Ms Armstrong as a replacement, bearing the additional cost of a further day’s wages each week in doing so.  The tribunal is satisfied that the respondent had done what it could to maintain the initial adjustment.  That adjustment fell apart because of friction between the claimant and Ms Armstrong and for no other reason.  The respondent cannot properly be criticised for that having happened or for Ms Armstrong then being placed elsewhere in the respondent organisation.

148.	At that point, ie from August/September 2015, the respondent then had to consider its position in relation to a reasonable adjustment.  The initial reasonable adjustment had depended on Ms Armstrong; or a replacement, being in place.  It does not seem possible to argue that the existing situation could have continued indefinitely.  If it had, then an excessive workload would have continued to fall on other staff including Mr Thompson who was, himself, probably disabled for the purpose of the 1995 Act.  That additional workload would have been primarily on Wednesdays; the claimant’s regular day off.

149.	While the respondent appears to have eventually come to a clear view that the original adjustment had been no longer working, that itself was not surprising.  It had made considerable efforts to make the initial adjustment work, involving Disability Action at every stage.  The respondent had been under a duty to consult with the claimant and, by extension with Disability Action.  It had sought to involve both.  It made it plain that the initial adjustment was no longer working and it made it plain that it was not working because Ms Armstrong had left the service department.  That had not been the fault of the respondent.

150.	At that point, the claimant did not adequately co-operate and did not adequately facilitate the necessary consideration of a further adjustment.  She refused to contemplate a drop in salary.  While it can be a reasonable adjustment to maintain an existing salary, that is not a positive requirement under the 1995 Act.  It cannot be a requirement of the 1995 Act, that simply because a respondent is a large operation, or simply because it is a profitable organisation, the level of pay must always be maintained, even where hours are significantly reduced or where responsibilities are reduced.  The purpose of the Act is to enable disabled people to remain in employment.  Imposing unreasonable adjustments, which are not required by the legislation and which might price disabled people out of the market, is unlikely to achieve that result.  The claimant had been very reluctant to consider any change in hours.  She had refused to consider any job that did not carry with it a company car.  While the primary onus is on the employer to facilitate a reasonable adjustment, the employee must co-operate and must assist in the process.
151.	The issue to be determined is therefore whether, in all the circumstances of this case, the employer had done its best to put in place a reasonable adjustment.  

152.	While the primary duty is on the employer to provide a reasonable adjustment, the nature and extent of that duty must depend on the circumstances of the case and in particular on the extent to which the employee makes any reasonable adjustment possible.  Intransigence or unreasonable demands by the employee may render any reasonable adjustment impossible.  The Code produced by the Equality Commission notes at page 101 that one of the factors to be considered is “the extent to which the disabled person is willing to co-operate.”

153.	Another point to be considered is the timing and manner of the claimant’s resignation.  She stated that the resignation had been prompted because she had been asked to come in to work at 10.00 am to have the meetings with her employer.  That is not a point which she had mentioned to Ms Kershaw in her email later on the same day.  That is not a fact which she had mentioned to the consultant psychiatrist who had been engaged on her behalf; Dr McGarry.  It is not a point that she had mentioned in her resignation letter.  It seems extremely unlikely that this had been the issue that had prompted her resignation.  If it had been, she would has said so in her resignation letter.  She did not do so.

154.	The tone of her resignation letter and the correspondence preceding that letter is consistent with the claimant having concluded that the initial adjustment which had originally been put in place in May 2015 had been permanent and with the claimant having concluded that the initial adjustment could not be altered even if circumstances had altered.  She appears to have had unreasonable expectations.

155.	When she chose to resign when she did, she refused to carry on with her own grievance.  She had sought to introduce unnecessary complications by seeking the involvement of a neutral third party.  She had refused to carry on with the consideration of what to do with her reasonable adjustment.  She had sought to introduce unnecessary formality by demanding specific written communications rather than attending a meeting with Disability Action to discuss the matter.  She had also refused to co-operate with the investigation into her behaviour in walking out of work and using foul language.  The first two matters were matters which could have assisted her and which she should have pursued.  

156.	By refusing to discuss the future of the reasonable adjustment and by refusing to pursue her grievance, she had effectively jumped before she alleges that she would have been pushed.  She had refused to co-operate in the process of reviewing the initial adjustment and in the process of providing a replacement adjustment in compliance with the legislation.  The respondent’s case is that although it had been clear that the current adjustment had not been working, it had been open to suggestions and to any points made by the claimant or by Disability Action.  The tribunal unanimously accepts that this had been the case.  By acting when she did, the claimant “shot herself in the foot” and brought the process prematurely to an end.

	The claimant has argued that she had not been given a definite and specific offer of a particular adjustment to replace the initial adjustment.

	In the circumstances of this case, that is not surprising.  The claimant had ruled out posts that did not have a company car.  She had ruled out posts which had carried a lower salary.  Her only suggestion had been to work 9-5 in the service adviser post with time off for her therapist appointments.

	The respondent had pointed out the real difficulty with that suggestion, which would have left the busiest times of the working day to others.  Discussions were still continuing.  The claimant and Disability Action had been invited to a meeting where the respondent could explain its position and where the claimant and Disability Action could make suggestions.  The matter would then have been further discussed.  That had been a reasonable approach by the respondent in the circumstances of the case.  There is no statutory or other requirement for an employer in such circumstances to put forward a specific and particular offer before discussions can move forward.

157.	The respondent had made significant efforts to make the initial adjustment succeed; 

	(i)	the initial reasonable adjustment had been generous.  There had been no pro rata reduction in pay, no pro rata reduction in holiday entitlement and the claimant had been allowed to retain her company vehicle even though that vehicle had been a courtesy car and its absence, on Wednesdays and on Saturdays when she was not working, would have caused significant disruption to the service department.  

	(ii)	The respondent had not asked for the return of the car even during her lengthy period of sick leave absence.

	(iii)	The respondent had originally recruited Ms Armstrong and had provided her with two days employment even though it had only required one day’s employment to cover Wednesdays when the claimant was not working.  The respondent played no part in Ms Armstrong’s decision to leave the job sharing post.

	(iv)	The respondent had not suspended the initial adjustment when either Ms McMurray or Ms Armstrong had left even though that adjustment had been causing significant difficulty.

	(v)	The respondent had allowed Disability Action fairly open access to the premises and had even allowed Disability Action to intervene in pre-disciplinary investigation processes and in customer complaints.  

	(vi)	The respondent did not accept the claimant’s verbal resignation when she had stormed out of work on 29 January 2016 shouting that she would not return.

	(vii)	The respondent had recruited the replacement for Ms McMurray very quickly.  It made significant and reasonable efforts to recruit a part-time replacement for Ms Armstrong.

	(viii)	The respondent, through Mr Thompson and other members of the team, had assisted the claimant in her duties as service adviser when they were short staffed, even though Mr Thompson had himself been ill with a condition exacerbated by stress.

	(ix)	The respondent had not opened disciplinary proceedings against the claimant when she had failed to follow absence notification procedures or following the customer complaints.

	(x)	The respondent had still been seeking a replacement for the initial reasonable adjustment and had still been trying to engage with the claimant and Disability Action when the claimant resigned.

158.	There had been a delay in recruiting a replacement for Ms Armstrong.  That said, the respondent was clear that they had difficulty in the original recruitment exercise.  That has not been rebutted.  In relation to the recruitment of a replacement, the respondent had advertised in the Lookers’ website which was open to the public and which is the usual recruitment method used by the respondent.  It had tried to recruit a replacement at a job fair and had tried approaching agencies.  It had been advised by those agencies that this post would not be attractive to anyone seeking part time work.  It had been a post which required a particular skill set. 

	In any event, the absence of Ms Armstrong on Wednesdays did not directly impact on the claimant who had retained her adjusted working pattern. 

159.	The respondent took the view that the service adviser’s post had to be done on a full time (50 hour) basis.  It took the view that the post had to be manned and manned adequately from early in the morning until late in the afternoon to allow drop off and pick up of vehicles and the consequent invoicing etc.  It took the view that to place all of that on one service adviser while the other service adviser worked either on four days a week or on five days a week for limited hours would not be workable.

	That seems a reasonable position for the respondent to have taken in all the circumstances of the case.  It had tried to make the initial adjustment work.  Those efforts had not been successful.

160.	The respondent had decided to seek a replacement for Ms Armstrong for one day only: the Wednesday each week.  The original decision to give Ms Armstrong two days’ work a week had been influenced by Ms Armstrong’s position as an existing employee wanting to return from maternity leave on a part-time basis.  That arrangement had not worked out.  Mr Hillis was clear that there had not been sufficient work to occupy Ms Armstrong or a replacement on a second day each week.

	It would not have been a reasonable adjustment for the purposes of the Act to recruit a replacement for an unnecessary second day per week.

161.	The claimant at one point alleged that there had been a part-time service adviser in the Vauxhall garage in Portadown.  No evidence was presented to the tribunal in relation to the timing or the nature of any such post.  There was no evidence that any such post had been similar to that held by the claimant and no evidence that the work of that service department had been organised in a similar way.

	The argument put forward by the respondent for the need in the Toyota garage for the service advisors to be full time, or for there to be effective job-sharing arrangements seemed to the tribunal to be entirely reasonable.  If the claimant, or Disability Action, had been able to suggest a viable alternative (other than the claimant not working during the two busiest times of the day), that suggestion could and should have been made in the meeting which had been repeatedly offered by the respondent.

162.	In this case, the claimant had refused to consider any other administrative post because such posts would not provide a company car.  She also refused to consider any drop in salary.  She had failed to engage in open discussion with the respondent; she had insisted unrealistically on “formal letters” and on the intervention of “independent” or “neutral” or “third party” individuals in an internal process.  She had chosen to resign rather than engaging in the continuing open discussion or in the resolution of her grievance.

	Whatever had motivated her decision to resign, it had not been the fact that her invitation to meetings had specified a start time of 10.00 am.  The tribunal is unable to conclude what had motivated the claimant to make the decision to resign when she did.

163.	In circumstances where the respondent had made significant efforts to make the initial adjustment work, and then to provide a replacement and reasonable adjustment, the tribunal unanimously concludes that the respondent had complied fully with its statutory responsibility to provide a reasonable adjustment.  The reasonable adjustments claim is dismissed.

DIRECT DISCRIMINATION

164.	The facts of this case are set out above.  There is no prima facie case that the respondent had directly discriminated against the claimant on the grounds of her disability.  To the contrary, the respondent made considerable and continuing efforts to maintain the initial adjustment and to retain the claimant in employment.  It made continuing efforts to engage with the claimant and with Disability Action to fulfil its continuing statutory duty.  Its decision to review the working of the initial adjustment and to consider an appropriate replacement had been an inevitable decision in all the circumstances of the case.  That decision cannot be an act of direct discrimination.  If working arrangements, which had involved an employee with a different disability or with no disability, had similarly caused difficulty, those arrangements would also have been reviewed.  The claimant has not been treated adversely compared to an employee with a different disability, or with no disability.  In any event, the decision to review the adjustment had not been caused in any way by the claimant’s disability.  It had been caused by the failure of the initial adjustment; by Ms Armstrong’s departure and by the respondent’s inability to recruit a replacement.

	There is no prima facie evidence upon which this tribunal can reasonably infer direct discrimination on the ground of disability.

165.	The claim of direct discrimination is dismissed.

VICTIMISATION

166.	The facts of the case are set out above.  There is no prima facie case that the respondent had victimised the claimant because she had brought earlier tribunal proceedings.  Those earlier proceedings had led to the initial adjustment which the respondent had tried to implement.  The fact that the initial adjustment failed had not been the fault of the respondent.  Continuing efforts had been made by the respondent to find a replacement adjustment, and to engage with the claimant in that process.  The claimant chose not to co-operate with the process and the claimant chose to resign prematurely.

	There is no prima facie evidence on which the tribunal could reasonably infer victimisation contrary to the 1995 Act.

167.	The claim of victimisation is dismissed.

HARASSMENT

168.	The decision of the respondent to review the initial adjustment and the manner in which it sought to discuss that with the claimant has been discussed in detail above.  None of that satisfies the definition of harassment.  The actions of the respondent did not create, and had not been intended to create, an atmosphere which had been “intimidating, hostile, degrading, humiliating or offensive”.  As Elias LJ said in Land Registry v Grant [2011] ICR 1390;

		“Tribunals must not cheapen the significance of these words.”

169.	The only incident which provides prima facie evidence of harassment contrary to the 1995 Act was the incident involving Mr Henry, the trainee who had mocked the claimant’s disability in one isolated incident.  The respondent had engaged in disability awareness training provided by Disability Action.  It had worked closely with Disability Action.  Mr Thompson had dealt with the incident promptly and effectively.  There had been no repetition.  The respondent, as the employer, had taken all reasonably practicable steps to prevent that incident occurring.  That provides a defence to any claim of harassment.  There is no claim of harassment against Mr Henry personally.

170.	The claim of harassment is dismissed.

CONSTRUCTIVE UNFAIR DISMISSAL

171.	The facts of the case are set out above.  The respondent had not been in breach of any specific or implied term in the contract of employment.  It had not been in breach of any statutory duty.  The claimant had not been entitled to regard her contract as having been repudiated when she resigned.

172.	The claimant chose to resign prematurely and without sufficient cause.  That decision had not been motivated by the respondent’s decision to invite her to attend work at 10.00 am on 23 May 2016.  That is what the claimant has argued.  However, if that had been the “final straw” or even a factor in her decision to resign, it would have been mentioned in her email later on the same day that she received her invitation to attend on 23 May 2016 or in her resignation letter.

	The tribunal cannot understand why the claimant chose to resign when she did.  The respondent had tried to make the initial adjustment work.  It had not worked.  The respondent had continued to provide assistance to the claimant.  It had continued to work with Disability Action.  The claimant had refused to consider any post that involved a lesser salary, or which did not provide a company car.  The claimant did not wish to consider any post other than a service adviser’s post.  She introduced unnecessary formality into the process of consultation and discussion.  She wanted independent third parties to deal with her grievance.  She refused to engage in discussion, with the assistance of Disability Action.  In such circumstances, no reasonable person would have regarded the respondent’s actions as a repudiation of the contract.

173.	The claim of constructive unfair dismissal is dismissed.

NOTICE PAY

174.	The resignation had been expressly with immediate effect.  There was no entitlement to notice pay.

175.	The claim in respect of notice pay is dismissed.

Vice President:

Date and place of hearing:	6, 7, 11 and 12 June 2018, Belfast.

Date decision recorded in register and issued to parties: