Written Reasons for the Judgment

This is a long post containing extracts taken directly from the 59 page document containing the written reasons for the Tribunal’s Judgment in the case of Bove (Claimant) v AVOW (Respondent). Paragraph numbers from the original are in [square brackets].

Case Number: 2902546/2008


Claimant: Ms G Bove

Respondent: Association of Voluntary Organisations in Wrexham

Heard at: Abergele

On: 7, 8, 9, 10, 11 and 14 March 2011


Employment Judge B J Clarke

Members Mr L J Boulton, Mrs M P Hughes


Claimant: In person

Respondent: Ms Sky Bibi (RBS Mentor Services)


having been sent to the parties on 17 March 2011 and reasons having been requested by the respondent in accordance with Rule 30(5) of the Rules of Procedure 2004.


The parties

[1] The claimant, Genevieve Bove (known as Genny Bove), claims disability discrimination and unfair (constructive) dismissal. The respondent is the Association of Voluntary Organisations in Wrexham (known by its acronym AVOW); it is a charity and a company limited by guarantee that is run by a combination of unpaid trustees and salaried officers. Its chief officer since June 2000 has been Mr John Gallanders. The case arises from a relatively short period of time – seven months – during which the claimant worked for the respondent.


[2] It is common ground that, on 1 August 2008, the claimant transferred to the respondent’s employment in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The transferor was her previous employer, Denbighshire Voluntary Services Council (DVSC), for whom she had worked since January 2006. She resigned with immediate effect on 3 March 2009, when she had just over three years of continuous service.

[4] The claimant has represented herself throughout the proceedings. The respondent has been represented throughout by Ms Sky Bibi of RBS Mentor Services. We are grateful to them both for sticking to the agreed timetable, which enabled the case to be completed with the allocated time. We apologise for the time it has taken us to produce the written reasons, which is principally due to the pressure of other cases.

[6] In the disability discrimination claim:

[6.1] The claimant contends that she was (and remains) a disabled person as defined by Section 1(1) DDA. She places reliance for this purpose on the fact that she suffers from migraines. The claimant says that it is a particular feature of her condition that such migraines can be triggered by exposure to fluorescent lighting. While accepting that the claimant suffers from migraines and that they constitute a physical impairment, the respondent does not accept that that they have a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. We are therefore required to determine whether the claimant qualifies under the DDA for protection at all.

[6.2] If the claimant qualifies for protection, the thrust of her claim is that, contrary to Section 4(2)(d) DDA, the respondent failed to make reasonable adjustments because it did not install appropriate lighting. The scope of the duty to adjust is set out in Section 4A DDA and a failure to comply with that duty is defined by Section 3A(2) DDA as a form of discrimination. For its part, the respondent contends that it made such adjustments as were reasonable and that, in any event, the claimant did not properly give those adjustments a chance to work before resigning.

[6.3] The claimant additionally contends that the respondent handled her grievances about the lighting in a manner that constituted direct discrimination (Sections 3A(5) and 4(2)(b) DDA) and victimisation (Sections 4(2)(b) and 55 DDA). The respondent resists those contentions.

[6.4] Finally, the claimant contends that the respondent’s failure to adjust and the other alleged discrimination amounted to conduct entitling her to treat her contract of employment as terminated (Sections 4(2)(d) and 4(5)(b) DDA).

[7] In the unfair (constructive) dismissal claim:

[7.1] This is brought under Sections 94(1), 95(1)(c) and 98 of the Employment Rights Act 1996.

[7.2] The claimant contends that the respondent repudiated her contract of employment by acting in breach of the implied term of mutual trust and confidence. Her eight-page resignation letter catalogued numerous complaints. These included the respondent’s alleged failure to adjust, the manner in which it dealt with her grievances about the TUPE and lighting issues, its alleged inappropriate request for enhanced CRB disclosure and its failure to deal with her complaint against the respondent’s chief officer brought under the “whistleblowing” policy. She has not, however, pursued a separate “whistleblowing” claim under Section 103A ERA.

[7.3] The respondent denies that it committed any fundamental breach. It contends that the claimant voluntarily resigned and that there was no dismissal.

[14] The prolixity of the claimant’s witness statement was, however, as nothing compared to the brevity of the statements supplied on behalf of the respondent. They were singularly unhelpful. None exceeded four short sentences in length; most did not exceed two. None were ready by the directed date for exchange (10 January 2011); indeed, one of the respondent’s principal witnesses, its chair of trustees at the time, told us he had no idea that the claimant had even brought Tribunal proceedings until 17 January 2011. The respondent’s statements were limited to an assertion that certain minutes of meetings were true and accurate, accompanied by a request that we look at specific pages of the bundle but with no attempt to provide a factual context or commentary. They told us almost nothing about the position of the respondent’s witnesses on the matters in dispute. They barely complied with the letter, let alone the spirit, of the requirement to disclose evidence in chief by the provision of statements. We found this particularly surprising given that the respondent has been professionally represented throughout the matter. The effect was that the claimant attended the Hearing having given (very) full disclosure of her own evidence in chief but knowing almost nothing about the evidence in chief of the respondent’s witnesses beyond what could be inferred from the documentation.

Fifth preliminary matter: was the claimant a disabled person?

[48] We deal next with the discrete question of whether, at the material time, the claimant was a disabled person qualifying for protection from discrimination. The material time for purpose is the period during which the alleged discrimination occurred (between 1 August 2008 and 3 March 2009) and not the date of the Hearing; see McDougall v. Richmond Adult Community College [2008] IRLR 227 CA. The claimant bears the burden of proving that she meets that definition; the standard of proof is the balance of probabilities. We will state at the outset that we have been easily persuaded that she was (and, indeed, remains) a disabled person.

[64] Before leaving the issue, we wish to point out paragraph 14 of the order of Employment Judge Reed following the CMD on 2 March 2009. He wrote this:

Provided the Claimant can satisfy the Tribunal that she does indeed have migraines (and it is difficult to see what expert opinion can assist on the determination of that question although of course the Respondents are entitled to access the Claimant’s GP records to satisfy themselves that she has brought this to the attention of her doctor) then on the face of it the only issue for the Tribunal will be the effect of her condition on her ability to undertake day-to-day activities. On the face of it, that is a matter that can only sensibly be addressed on the oral testimony of the Claimant herself.

[65] The claimant had in fact volunteered that testimony by preparing an “impact statement”, dated 16 October 2009, which she sent to the respondent. It contained her evidence regarding the effect of migraines on her ability to carry out normal day-to-day activities. The respondent maintained that the claimant was not a disabled person yet did not challenge what she said her in impact statement, either prior to the Hearing or during cross-examination. If it was not going to challenge her in this respect, it should have conceded the point. It was unreasonable not to do so. It added unnecessarily to the issues in dispute, the size of the bundle and the length of the Hearing.

Claimant’s employment by DVSC

[67] The claimant’s period of continuous employment commenced when she started work for DVSC on 2 January 2006. She had also worked for them in 2004 and 2005, but her contract ended and there was a break in her service. When she rejoined, it was on a series of fixed term contracts working as a part-time fieldworker for carers. These contracts were extended on about six occasions so that, by the time of the NEWCIS contract transferred to the respondent on 1 August 2008, she had accrued 31 months’ service.

[68] The claimant’s manager for most of this time was Carys Williams. Ms Williams gave us unchallenged evidence that DVSC was fully aware that the claimant suffered from migraines and had no difficulty making “informal” arrangements by which the fluorescent strip lighting in the office was simply replaced with desk lamps and a standard lamp using incandescent lighting. She recalled that the entire cost of the arrangements came to £20, which she met from petty cash. Given the limited steps that were involved, this sum seemed about right to us.

Brief period of employment by the respondent in July 2007

[69] On 7 May 2007, while working for DVSC, the claimant applied to the respondent for a part-time job as a Direct Payments Support Worker. “Direct payments” are sums of money paid by local authorities to people receiving social care services (instead of the local authority providing the service directly).

[70] The claimant’s application was successful. On 4 June 2007, she completed a pre-employment medical questionnaire for the AVOW job (pages 140-141). In answer to the question “Do you consider yourself to have a disability?” she wrote “Not sure” and volunteered the following information:

I suffer from migraines, the main trigger for which is exposure to fluorescent lighting. I can generally tolerate fluorescent lights fairly well provided that I’m facing a window with good natural light. Bright spotlights can also cause me problems.

[71] Prior to starting, the claimant had a number of telephone conversations with Becky Davies, an administrator for the respondent who had offered her the role. The claimant gave unchallenged evidence that she sought and received from Ms Davies reassurances that the lighting situation would be “sorted out” and a number of solutions were discussed.

[72] The claimant duly started the role on 2 July 2007. It was not a happy experience. She arrived to find all the fluorescent lights were switched on and that her workstation was not by a window. For any other person who did not suffer with migraines as the claimant, these physical arrangements would have involved no disadvantage. For the claimant, they did. When she tried to negotiate turning off the lights, another employee complained. (Not without justification – that other employee had Seasonal Adjustment Disorder and wanted the lights kept on; such are the practical difficulties that employers may encounter from time to time when balancing the needs of one employee with the needs of another.) The claimant left work at lunchtime, with nausea and head pain. It developed into her first full migraine for some time.

[73] Two days later, the claimant attended a meeting with Mr Gallanders and Ms Ross where they discussed the respondent’s dress code and the lighting arrangements for the office. During this meeting, Mr Gallanders said “But what did you expect in an office? All offices have fluorescent lights. I don’t see how we can ensure that you don’t get exposed to them”. The claimant was not challenged about her recollection of this remark and indeed Mr Gallanders accepted saying something along those lines. It was an insensitive thing to say and it demonstrated a lack of understanding of the claimant’s condition.

[74]After the meeting, Ms Ross wrote to the claimant in the following terms (page 242):

As I agreed with you this morning I can arrange for the tubes in the lights at your end of the office to be changed for those which are regarded as daylight tubes. I hope this will help the situation. However, as discussed, you work in a shared office where other members of staff have other lighting requirements. You said that you appreciate the difficulties of this situation. AVOW will not be able to control the lighting arrangements in many of the rooms in which you will have to work. These will include people’s homes and meeting rooms.

… while AVOW is prepared to change the lighting tubes in your work area it is difficult for us to control lighting in other areas. You have been unable to come up with any suggestions for how we may be able to accommodate your needs while remaining fair to others with whom you are working.

[75] It was clear from this letter that Ms Ross thought it was the claimant’s responsibility to come up with suggested adjustments rather than the respondent’s obligation, where reasonable, to make them. The simplest solution was to use incandescent lighting but this was considered “difficult”.

[76] The claimant replied the following day and resigned with immediate effect… It would be fair to describe the claimant as someone who prefers to make her points in correspondence: her letters are intelligent and articulate but often very long. This was the first of many such letters in the bundle. Her reply dealt with both the dress code and, at greater length, the lighting issue. There are two points in particular we drew from this letter: first, the claimant repeated that only incandescent or low energy bulbs would offer a “guaranteed solution which would totally solve the problem in the office and meet everyone’s need for light”; secondly, she would have been prepared to look at daylight tubes as an “interim solution” but not in circumstances where only the ones above her desk were changed. She made clear that one of the reasons for her resignation was the lack of “any commitment by senior management to take responsibility for resolving the lighting issue” and in particular Mr Gallanders’ insensitive remark.

[77] Ms Ross wished to treat the claimant’s resignation letter as a formal grievance… This was followed by protracted correspondence, the thrust of which was that the claimant did not wish to pursue a grievance or an Employment Tribunal claim but wanted the respondent to “understand its responsibilities under the Disability Discrimination Act”. Eventually, Mr Peter Webber (then chair of trustees) said that he had “closed the matter” in view of the claimant’s desire not to pursue a grievance… We have included the incident in our judgment by way of background; it tells us quite a bit about the characters of both the claimant and Mr Gallanders and offers an explanation for why, as we shall see, Mr Gallanders took against the claimant at an early stage.

The TUPE transfer from DVSC to the respondent

[78] In or around March 2008, Wrexham County Borough Council put the NEWCIS contract out to tender. The respondent won the contract. We ought to acknowledge in passing that its bid included an assurance that staff having direct contact with carers or visiting carers in their homes would “receive appropriate Criminal Records Bureau checks” (see page 12 of Section D method statement in the AD bundle). So it was that, unplanned, both the claimant and Mr Gallanders would again end up working together.

Findings of fact

Confusion over claimant’s status (and first example of bad faith)

[81] Mr Gallanders was unhappy about the claimant transferring to the respondent’s employment. Irrespective of the shifting advice over whether or not her employment was protected by TUPE, he simply did not want to take her on. This is shown most clearly in his note to his advisers on 29 July 2008 (document C1(1), which we found not to be covered by litigation privilege):

Having had difficulties with employing Genevieve Bove in the past, and having received complaints about poor performance in her current role from Carers accessing the service, we do not feel that she has the skills and qualification to effectively carry out a Carer Support Worker role. Through an open recruitment process it is unlikely that she would be offered an interview.

[82] Mr Gallanders accepted that he wrote this note at the time and he gave evidence to us on what he meant by it. His evidence was unsatisfactory. He was unable to give a single example of a complaint about the claimant’s “poor performance”. He could not recollect whether the complaints to which he had referred came from carers or the Council. When pressed by the claimant to specify the skills she lacked, he was vague. He could offer no criticism of her qualifications. He at first suggested that his remarks reflected a “subjective assessment done at the time, based on comments in the general context of Wrexham Council”. When asked to clarify his remark, he said it was “more to do with interpersonal skills. I can’t say precisely why it was written in that way”.

[83] We find as a fact that the real issue playing on Mr Gallanders’ mind – and his real reason for not wanting to work with the claimant – was his previous experience of “difficulties” in employing her. We are clear that this is a reference to her previous grievance, which was in large measure about alleged disability discrimination. The reference to her lack of skills and qualifications was a smokescreen.

[84] It is tempting to construct, at this stage at least, a narrative sympathetic to Mr Gallanders. His last experience of the claimant had involved a few days’ work, in return for which he faced a complaint about discriminatory lighting and quite a bit of hassle. And here she was again: her name had appeared as a transferring employee and she had not even joined his workforce before bringing another grievance. However, such a narrative would be unfair and overlook the point that both of the claimant’s grievances had been brought in good faith and were legitimate: the respondent had failed to make proper adjustments in July 2007 and, more recently, it had caused her unnecessary confusion over the application of TUPE.

[85] In any event, upon advice, Mr Gallanders accepted that the claimant’s employment did have to transfer to the respondent under TUPE. We are clear that he took her on only because he was advised that he had to do so, despite his preferences to the contrary. We are also clear that, from this point on, he acted towards the claimant in bad faith.

Claimant goes off sick

[89] On 28 July 2008, the claimant was signed off work sick for a week with a stress-related illness (page 286). By letter dated 1 August 2008, she maintained her grievance over the manner in which the TUPE issue had been handled (page 294). On 4 August 2008, she informed the respondent that she had been signed off sick for another month (page 297). The sick note said “stress” (page 298). In her accompanying letter to Mr Gallanders, she said the following:

I enclose a letter from my GP about my migraines and exposure to fluorescent lighting.

Because of this condition, I do not believe that I will be able to work for extended periods in an office with no natural light, even if ‘daylight’ fluorescent lighting has been installed. To date, I have found no fluorescent strip lighting – including that which is supposed to be better for people with fluorescent light sensitivity – which has not caused me to suffer with migraines. Very bright spot lighting can also trigger attacks.

I would like to suggest as a possible solution that I have a desk in the second, smaller office/meeting room to be used by the Carers service, which has large windows and good natural light. I believe that this room is not currently used in the mornings.

[90] Importantly, accompanying her letter was a separate note dated 1 August 2008 from Dr Willis, her GP, saying this (page 296):

[The claimant] suffers with migraine, which at times is triggered by fluorescent lighting. Consequently in her case, it is advisable to reduce exposure to this form as lighting as much as possible to reduce risk of her developing further episodes of migraine. Any measures that can be undertaken to achieve this would clearly be of significant benefit.

[97] As can be seen, the claimant could not have been clearer in specifying the physical feature of the working environment that placed her at a substantial disadvantage in comparison with her colleagues (and, in particular, the unsuitability of “daylight” tubes), the nature of that disadvantage (her susceptibility to migraines) and the adjustment she was seeking from the respondent to alleviate it (a mixture of natural and incandescent lighting – an adjustment that her previous employer, prior to the TUPE transfer, had made at a cost of only £20). Pending the adjustment being made, she remained off sick.

The DDA grievance

[99] The claimant received no acknowledgment. Accordingly, on 9 September 2008, she raised the issue about lighting as a formal grievance (page 319). This became known in due course as the “DDA grievance”. The thrust of her complaint was set out in an accompanying DDA questionnaire (pages 95 to 105, especially 102 to 104): in essence, she contended that the lack of any TUPE consultation meant that she had not been asked specifically about the lighting arrangements in the office and that the respondent had failed to comply with its duty to make reasonable adjustments.

[100] On behalf of the respondent, Mr Gallanders replied to the questionnaire (pages 106 to 115). His reply underlined the respondent’s position that it already had made a reasonable adjustment after installing “daylight” tubes following the experience of employing her in July 2007.

[101] In parts, Mr Gallanders’ reading of the medical evidence (as set out in the reply to the questionnaire) revealed a rather pernickety approach. For example, in his letter to the respondent dated 1 August 2008, Dr Willis had observed that the claimant’s migraines were “at times … triggered by fluorescent lighting”. Mr Gallanders’ observation was that “it does not say at all times” (page 113); this reply spoke volumes of his lack of understanding of migraines, seeing it wrongly as an “all or nothing” condition.

The TUPE grievance: the response and the claimant’s appeal

[102] The TUPE grievance continued in parallel. By letter dated 15 September 2008, Ms Ross responded to the TUPE grievance. She apologised to the claimant for the confusion surrounding the transfer of her employment, explaining that the respondent was acting on legal advice received at the time (page 320). She added: “you have transferred on all your terms and conditions and we do not consider you have suffered a detriment as a result of the initial confusion”. Oddly, neither Dr Rosenberg nor Ms Jones, who heard the claimant’s TUPE grievance, featured in the letter from Ms Ross. The grievance decision, for all intents and purposes, was taken by Ms Ross.

[103] In a letter to Mr John Davies (chair of trustees) dated 16 September 2008, the claimant appealed Ms Ross’ decision (pages 321 to 322). She did so because, in her view, it did not deal with all the concerns she had raised; she wanted “to understand why things happened as they did” rather than receive a “blanket apology”. She also confirmed that she was still awaiting a reply about her concerns with the lighting after Ms Ross had confirmed that she would be “look into the issue”.

The CRB check (and second example of bad faith)

[108] A parallel concern in this case was why, in due course, the respondent sought an enhanced CRB disclosure for the claimant in circumstances where (a) her previous employer in the same job, DVSC, had only sought standard disclosure and (b) contrary to the Code of Practice, she had not been told in advance such disclosure would be required. The claimant was confused by this approach and wondered, to put it bluntly, if the respondent was looking for dirt on her. She did not work directly with vulnerable adults and children, only for those individuals who cared for them. In recognition that some of the carers might themselves be vulnerable persons, she accepted that a standard disclosure might be appropriate. She did not accept, however, that an enhanced disclosure was appropriate.

[109]The respondent’s position at the Hearing was that it was required by Wrexham Borough Council under its bid documentation to make sure that all staff underwent enhanced CRB disclosure. This was not correct: the documentation contained in the “AD” bundle showed clearly that, while the Council expected the employees of agencies with whom it worked to undergo CRB checks where appropriate, it was ultimately the responsibility of the chief officer (in this case, Mr Gallanders) to define which jobs required CRB disclosure and at which level (standard or enhanced). On this point, the respondent’s tender said no more than that staff would receive “appropriate” CRB checks. It did not require disclosure for all employees and it certainly did not require enhanced disclosure for a person doing the claimant’s job.

[110] We have introduced this issue at this stage because the true explanation for the respondent’s actions is revealed by an email that Mr Gallanders sent his adviser at RBS Mentor, Ms Egan, on 19 September 2008 (and copied to Ms Ross). The email was at page C1(3) of the C1 bundle; this, it may be recalled, was a document we found not to be covered by litigation privilege (or, alternatively, a document for which any such privilege had been waived). In this email, Mr Gallanders wrote (with our emphasis):

Following on from your discussion re [the claimant] and access to her medical records – if her issue about migraines – she says it is lighting but there has never been any indication that this could actually be to do with the use of a computer. We have a policy here that anyone working on a computer is offered eye testing. If we are trying to now be awkward to her by asking for the medical reports can we actually insist on her going for a VDU workplace eye test whilst she is still on the sick.

We would also require a CRB for the position she is supposed to be doing. – are we ok to start this process of getting the correct id etc from her. It might be a long shot but there may be something that shows up in this which may indicate she is unstable for the job.

[111] When questioned by the claimant, Mr Gallanders confirmed that the “we” in this email was not a reference to him personally but to the respondent organisation as a whole. He also accepted that, as chief officer, he wrote the email with the inferred authority of all the trustees. As to the content of the email, his evidence was, again, unsatisfactory. He said that the phrase “if we are trying now to be awkward” in fact meant that he was trying not to be awkward. He said that the request for a CRB check was simply to check whether the claimant was “unsuitable” for the job and that his computer had likely changed the word to “unstable” through the spell check mechanism.

[112] We reject his evidence. The reality, we find, was simply that Mr Gallanders was fed up of the claimant and wanted to find a reason to get rid of her, whether that came through medical reports casting doubt upon the truth of her migraines or, worse, by trying to dig up dirt with a belated enhanced CRB check.

The TUPE grievance: further letter (and third example of bad faith)

[114] On 26 September 2008, a letter was sent to the claimant in the name of John Davies; he had now taken over as chair of the respondent’s board of trustees (pages 334 to 336). The ostensible purpose of the letter was to respond to her appeal against the rejection of her TUPE grievance. There had been no further appeal meeting as such; Mr Davies wrote that he was answering questions that Ms Ross had not answered in her earlier letter. He then gave the claimant an opportunity to request an appeal hearing if she chose. It was certainly a fuller response and Mr Davies repeated the apology Ms Ross had given, although he added: “we are at a loss to [know] what you are now looking for”. In the same letter, he sought permission to contact the claimant’s GP in order to obtain medical information relevant to what was now being described as “the DDA grievance”.

[115] However, there was a major problem with this letter. Mr Davies had not written it. He had not even seen it. He told us so himself at the Hearing and we accept his evidence. He explained that the first time he had seen this letter was when it was shown to him on 17 January 2011. This was when he learned for the first time that the claimant had brought Tribunal proceedings. He was asked to sign a witness statement referring to this letter and he refused, signing an amended version instead. The true author of the letter is revealed by the signature it bears: Mr Gallanders.

[116] We regret to say that this demonstrates the extent to which Mr Gallanders was manipulating the organisation of which he was the chief officer. The role of the trustees of a charity is to take ultimate responsibility for its management and administration. The respondent was also incorporated (as a company limited by guarantee) and so, presumably, its trustees held office as directors and had fiduciary duties to the respondent. A chair of trustees such as Mr Davies would have great authority to speak on its behalf. The members of the Tribunal, who have all had personal experience as trustees of charitable organisations, think it was reprehensible for Mr Gallanders (who was not himself a trustee) to write a letter in Mr Davies’ name, without his consent, giving the deliberate impression that the chair of trustees was “at a loss” to know what the claimant was looking for. It was a further act of bad faith on his part and reflected his desire that the claimant should not work for the respondent. It was also an abuse of his position as chief officer.

[117] In a reply dated 28 September 2008, addressed to both Mr Davies and Mr Gallanders, the claimant pointed out that she had already exercised her right to an appeal against the rejection of her TUPE grievance and could not understand why she was being offered a further choice about whether she wished to appeal (pages 337 to 338). She sought clarity over whether it was Mr Davies or Mr Gallanders who was communicating with her; she did not herself learn until the Tribunal Hearing that Mr Davies had no knowledge at the time of the letter sent in his name. She also pointed out that the correspondence thus far had failed to deal with her complaint about the lack of information and consultation about the TUPE transfer. (This was the letter where the claimant mentioned for the first time the possibility of Tribunal proceedings, to which we referred above in the context of the respondent’s assertion of privilege.)

[118] The bundle contained two undated letters described as having been sent “jointly on behalf” of Mr Gallanders and Mr Davies (pages 339 and 345). Mr Davies told us that he had been shown neither the claimant’s letter addressed to him nor the further letters also sent in his name. The second of these letters, sent on 1 October 2008, asked the claimant to complete an enhanced CRB disclosure application form.

[122] Mr Gallanders’ next step was to set up a little experiment: without the claimant’s consent, he decided to use the forthcoming DDA grievance meeting as a test of how she would react to the “daylight” tubes.

[124] To underline the point: Mr Gallanders deliberately decided to hold the DDA grievance meeting in circumstances that the claimant had previously said would risk triggering a migraine, and he did not tell her that he was doing so. All three members of the Tribunal found this shocking, not a word we use lightly. As we repeat in our conclusions, it was an experiment carried out without the claimant’s knowledge or consent and which exposed her to the risk of pain. When asked by the Tribunal why he took this step, he told us that it was “a chance to assess the lighting in the room”. We firmly reject this explanation. If that were his intention, he could easily have discussed it in advance with the claimant. But instead of being upfront about it, he went about it in a way designed to catch her by surprise. What, then, was his motivation? We have already concluded that, by this stage, Mr Gallanders was looking for an opportunity to get rid of the claimant; also, in his own words, he was “trying to be awkward”. Against that background, we consider that the likeliest explanation is that he was trying to engineer a situation where he could say that the claimant had acted unreasonably by refusing even to try out the new lighting arrangements. We reject the even less generous interpretation that he was deliberately trying to cause injury to the claimant, but we still consider it a further example of his bad faith.

[126] The DDA grievance meeting took place on 7 October 2008. The claimant was accompanied by Ms Helen Webster. The claimant took minutes of the meeting (pages 365 to 367) as did the trustees (pages 368 to 374). The claimant subsequently amended the trustees’ minutes and we accept that the amended version is the more accurate reflection of what was discussed.

[127] The minutes record that, “[o]n entering the office, it became apparent that the only available lighting was the overhead fluorescent lights which [the claimant] had already made clear were problematic for her and which were, in fact, the subject of this grievance meeting” (page 368). We accept the claimant’s evidence, corroborated by Ms Webster, that she asked Ms Roxburgh and Mr Jones if there was another meeting room available with different lighting and was told that there was none. We also accept her evidence that she then explained that she had brought some desk lamps with her and could plug these in so that the meeting could go ahead with the fluorescent lights switched off. Finally, we accept her evidence that Ms Roxburgh and Mr Jones then told her, without checking, that another room was available after all. They then moved to an adjacent meeting room with the lights turned off. Neither Ms Roxburgh nor Mr Jones attended the Tribunal to give evidence, but we consider that the likeliest explanation for their initial reluctance to change the lighting environment for the meeting was that they were seeking to comply with Mr Gallanders’ instructions.

[129] On 8 October 2008, the claimant sent an email to Ms Ross and Mr Gallanders in which she complained about the unsuitable room chosen for the grievance meeting (page 375). She wrote:

You had not consulted me before making the adjustment (of removing two of the six fluorescent strips in the room) to see if this would be suitable. Fluorescent strips, even the ‘daylight’ ones, are not suitable. This is even more of a problem where there is no, or hardly any, natural light available in the room …

There was no additional lighting available in that room yesterday, but even if there had been, to plan a grievance meeting in a room lit in a manner which you know causes me problems and which is the subject of the same unresolved grievance, is totally unacceptable. It is akin to holding a meeting for a mobility impaired person, who has been having trouble with stairs at work, in an upstairs room with no lift access.

For our part, we consider that the claimant’s analogy is accurate.

[130] On 13 October 2008, Ms Ross wrote to the claimant regarding the arrangements for her TUPE appeal meeting. The same day, the claimant replied: “I don’t mind where the appeal meeting is held, so long as the lighting is suitable” (page 379).

The DDA grievance: the response and the claimant’s appeal

[131] On 14 October 2008, the claimant received a response to her DDA grievance (pages 381 to 382). Once again, it is noteworthy that the letter did not bear the name of the two trustees who ostensibly heard her grievance. It was written and signed by Ms Ross in the first person. She had not even been at the grievance meeting. It further supports our interpretation that Mr Gallanders and Ms Ross were usurping the role of the trustees. It is also noteworthy that the letter was composed before the respondent had heard back from Dr Willis.

[132] As for the lighting arrangements for the meeting, Ms Ross wrote: “It was considered a reasonable investigative measure to have part of the meeting in room 16a to allow you the opportunity to experience the new lighting. You were unwilling to try to hold even part of the meeting in the office.” As to the grievance as a whole, she wrote: “I have come to the outcome that AVOW has done everything reasonable at this stage in respect of the lighting in the office”.

[133] On the claimant’s specific request for incandescent lighting, Ms Ross wrote: “you have suggested that use of ordinary light fittings with energy saving light bulbs, however, due to the unknown success of this, we do not consider it reasonable at this stage”. This answer made little sense. Ms Ross did not explain in her letter why she had decided that such alternative lighting arrangements would have “unknown success”. She did not explain why such lighting could not at least be tried; after all, in our industrial experience, “reasonable adjustments” often involve an element of trial and error. In our view, the true position was that Mr Gallanders and Ms Ross had become fixated on the adjustments already made and they stubbornly refused to adjust further, despite the fact that it would meet the claimant’s needs and be both cheap and straightforward.

[134] Ms Ross told us that she and Mr Gallanders would have looked at this letter together before sending it. She could not recall whether it had been shown to the trustees who had heard the grievance, but she accepted that they would not have written it. When asked by the Tribunal why she had written such a letter when she had not been present at the grievance meeting, she replied “I honestly don’t know”. She accepted that she did not have the authority to make the decision set out in the letter and thought it likely that Mr Gallanders would have liaised with the trustees and the respondent’s legal advisers before it was sent.

[135] On 15 October 2008, the claimant appealed against the rejection of her DDA grievance (page 383).

[136] Dr Willis replied to the respondent on 17 October 2008 (page 395). He wrote:

[The claimant] has intermittent cycles of migraine and these are triggered by fluorescent lighting. Previously she has managed to stop the effects of this by a change to the lighting and use of natural light … I believe that her current stress symptoms are likely to improve significantly when the unresolved issues relating to her work environment are resolved. At present she is keen to return to work but would be unable to do so if her immediate environment precipitated migraine … I am hopeful that if some solution can be implemented there is a very real prospect of [the claimant] returning to employment in the very near future.

[137] For completeness, we note that Dr Willis later wrote of the lighting arrangements at the time: “I could not see how under these circumstances [the claimant] would be in a position to return to work” (11 January 2010, pages 130 to 131).

The TUPE grievance: appeal hearing (and claimant’s disclosure)

[138] On 16 October 2008, the claimant attended an appeal meeting in relation to her TUPE grievance. Her colleague Ms Webster again accompanied her. She brought a prepared statement (pages 386 to 388): her focus remained on the lack of information and consultation. The trustees selected to hear her appeal were Ms Gail Thomas and Mr Brian Neale. The respondent produced minutes of this meeting (pages 393 to 394) and the claimant produced amended minutes (C2, pages 2 to 5).

[139] When the claimant arrived at the respondent’s office, the meeting was due to be held in Mr Gallanders’ room. When she entered his room, the blinds were closed and the fluorescent lights were on; the claimant had to request that the blinds be opened and the lights turned off. Although both Ms Thomas and Mr Neale gave evidence to the Tribunal, the claimant did not pursue in cross-examination her contention that this had been done deliberately.

[140] The more important point arising from this meeting is that the claimant asked the respondent’s minute-taker (Ms Kate Davies) to leave the room and then presented Ms Thomas and Mr Neale with a copy of the C1(1) document. We accept the claimant’s evidence, corroborated by Ms Webster, that she explained to Ms Thomas and Ms Neale that this document made clear that, all along, Mr Gallanders had never wanted her to work for the respondent. We accept that she told them that she had only felt strong enough to show them the document after discussing it first with her GP and counsellor.

[141] Ms Thomas and Mr Neale also gave evidence about this meeting. Ms Thomas confirmed that the claimant showed them the C1(1) document and agreed that she might have made a comment about the recruitment process. She said she was taken aback by the document and gave it to Ms Ross. She also told us, although she could not give specifics, that she expressed her concern about the document directly to Mr Gallanders. We accept her evidence. Mr Neale’s own evidence did not take the issue much further: he could not directly recall the C1(1) document.

[142] On 21 October 2008, the claimant wrote directly to Ms Thomas and Mr Neale (page 399). On this occasion, she stated explicitly that, in having provided them with a copy of the C1(1) document, she was making a disclosure under the respondent’s whistleblowing policy. She stated that the disclosure amounted to either “unethical conduct”, “improper conduct” or conduct that fell “below established standards or practice” (as defined by that policy) on the part of Mr Gallanders.

[143] Two days later, Mr Gallanders wrote to the claimant withdrawing the whistleblowing policy with immediate effect (pages 410 to 411). He stated that he was doing so in order to seek clarification on the points she had made. It was in direct response to her disclosure. He also wrote the following:

In the meantime we will continue to provide an open environment were [sic] if staff have any problems there is a structure in which they can report issues. The initial stage would be to report issues to their respective line manager or direct to the Chief Officer. If there were an issue with the Chief Officer a staff member would be able to approach the Chairman or any of the trustees. Staff members are encouraged to raise issues of concern at an early stage either informally or more formal manner [with] any of the senior Management or Trustees. In both instances the disclosure of any information would be confidential and only discussed with the other with the agreement of the staff member.

The TUPE grievance: respondent’s rejection of appeal

[144] On 22 October 2008, the claimant received a letter dismissing her appeal against the rejection of her TUPE grievance (pages 401 to 402). Neither Ms Thomas nor Mr Neale wrote the letter; indeed, in their evidence to us, they confirmed that they had not seen it at the time. Mr Neale said that the first time he had seen it was at the Tribunal Hearing.

[145] Following a pattern that had by now become well established, the letter was in fact from Mr Gallanders. He wrote it in the first person (e.g. “I do not find in your favour”) even though he had not been present at the appeal. Mr Gallanders was not simply manipulating the body of trustees to achieve the outcome he wanted, he was usurping their role by reaching their decisions for them.

[146] In his letter, Mr Gallanders once again explained that the confusion over the TUPE transfer arose from an error on the respondent’s part; an error it had since rectified and for which it had also apologised. However, when questioned by the Tribunal, Mr Gallanders accepted that the respondent’s approach to the claimant’s TUPE grievance was incomplete. Throughout, he had focused on the confusion over whether she should transfer under TUPE or not. This neglected an important part of her grievance, which was why she had not been properly consulted even after the respondent accepted that her employment would be transferring under TUPE. It also neglected an important point that had emerged during the grievance process, namely whether Mr Gallanders had been personally motivated to avoid taking on the claimant under TUPE because of his previous unhappy dealings with her in 2007. Ms Thomas also accepted under cross-examination that Mr Gallanders’ letter did not deal with all the points that had been discussed at the meeting on 16 October 2008.

[147] Neither Mr Neale nor Ms Thomas responded to the claimant’s disclosure about Mr Gallanders’ behaviour. As noted above, Ms Thomas passed the C(1) document directly to Ms Ross and discussed its content with Mr Gallanders. When Mr Gallanders wrote to the claimant on 23 October 2008 withdrawing the whistleblowing policy and making a guarantee of confidentiality, he must have known that Ms Thomas had acted contrary to that guarantee by discussing the claimant’s concerns directly with him (and without her agreement).

The DDA grievance: appeal hearing

[149] Two further trustees were lined up to her the claimant’s DDA appeal: Ms Kathryn Uche and Ms Margaret Brydon. The appeal hearing rook place on 28 October 2010. The claimant again prepared notes in advance (pages 419 to 423). The claimant was accompanied by Ms Janet Tyrell, who took minutes (pages 424 and 425). Kate Davies took minutes for the respondent (pages 440 to 449).

[150] It is not necessary to go through the minutes in detail. Insofar as the appeal was concerned, the focus should have been on the suitability of the lighting arrangements in the office and the feasibility of using an incandescent alternative by way of reasonable adjustment. Two key points arose:

[150.1] The first was that the claimant maintained that the lighting arrangements in the respondent’s office were inadequate and that it had also been entirely inappropriate to hold a previous grievance meeting (on 7 October 2008) in a way designed to test how she would react. On this issue, Ms Uche and Ms Brydon gave no decision at the meeting.

[150.2] The second was that the claimant again sought a private discussion with Ms Uche and Ms Brydon with Ms Davies, as minute-taker, absent. This was to address her concerns that Mr Gallanders had taken against her from the start, as shown by the C1(1) document. In particular, she wanted to know how the trustees would deal with her complaint that Mr Gallanders had acted unethically now that he had withdrawn the whistleblowing policy. We accept the claimant’s evidence that this discussion took place. Ms Tyrell corroborated it. Ms Uche did not give evidence but Ms Brydon confirmed to us that she recalled the claimant raising the issue. The claimant received no answer at the time. When questioned by the claimant at the Tribunal Hearing, Ms Brydon told us that the claimant’s concerns about Mr Gallanders were to be resolved “by discussion with the trustees”. When asked if any such discussion between the trustees ever took place, she could not recall if it had.

The DDA grievance: occupational health referral

[151] Mr Gallanders was not present at the meeting. Nonetheless, on 31 October 2008, he wrote to the claimant to say that he would be referring her for an “Occupational Health Assessment carried out by an Ophthalmic specialist to assess what practical options may be available to assist you with your condition” (page 426). The claimant in due course provided her consent (page 450).

[152] In isolation, this was a reasonable step for the respondent to take. However, we cannot look at it in isolation in circumstances where we have already concluded that Mr Gallanders was acting in bad faith towards the claimant. Put another way: we do not think that this incident demonstrates that he was acting in good faith, since we have concluded that he was looking for a way to get rid of the claimant.

Miscellaneous events

[155] The claimant was continuing to express concerns as to whether it was appropriate of the respondent to ask her to undergo an enhanced CRB check and as to what was happening with the C1(1) document (see, for example, pages 467 to 470). As we have seen, in view of her allegations about Mr Gallanders, the claimant had raised these concerns directly with the trustees. However, at a meeting between Mr Gallanders and the trustees on 11 November 2008, it was resolved that all her future correspondence would have to come directly to the chair of trustees or to Mr Gallanders (page 439). Mr Gallanders had already demonstrated his willingness to write letters in the name of the chair of trustees and without his consent; this resolution was, in our judgment, an attempt on his part to remain in control of the allegations being levelled against him and to obstruct their independent scrutiny by the trustees.

[157] In any case, as instructed, the claimant now wrote to Mr Davies. By letter dated 21 November 2008, among other matters, she again asked what was happening regarding her complaint against Mr Gallanders for the comments he had made about her prior to the TUPE transfer, for the manner in which the DDA grievance meeting had been held, for the withdrawal of the whistleblowing policy and for his request that she undergo an enhanced CRB check.

[158] On 30 November 2008, the claimant presented her second ET1 claim form to the Tribunal, alleging disability discrimination. Shortly afterwards, the respondent filed its ET3 response form with the Tribunal, in which it resisted the claim on its merits and, as a preliminary point, resisted the contention that the claimant was a disabled person under the DDA. A series of letters exchanged in early December 2008 revealed that the parties were getting nowhere: the claimant wrote at length about her concerns and Mr Davies replied with letters based on advice from Mr Gallanders.

[159] On 22 December 2008, the claimant met Mr Llewellyn, the optometrist, for a discussion. It did not get very far because he had not received confirmation that the respondent would meet the cost of the consultation and seemed to be under the impression that the claimant was attending for an eye test. There was evidently a great deal of discussion about the claimant’s employment by the trustees at this time, because Mr Davies prepared a confidential report about her for discussion at a meeting on 13 January 2009 (page 506). The respondent has failed to disclose it.

Further meeting

[160] On 21 January 2009, the claimant met Mr Davies. Two other trustees, Margaret Brydon (who was still in the process of dealing with the claimant’s DDA appeal) and Marjorie Dykins, were also in attendance. The minutes of the meeting (pages 514 to 523) show that seven broad items were discussed: the reduction in her sick pay; the status of the ophthalmic assessment; the enhanced CRB checks; the respondent’s manner for handling staff grievances; risk assessments; the claimant’s stress levels; and the whistleblowing issue.

[161] Nothing specific was decided about the issues with which we are concerned; the thrust of the trustees’ position was either “We are where we are” or “We will get back to you”. Mr Gallanders did not attend but he annotated the minutes afterwards in a manner that shows he was still directing the process. In relation to the claimant’s proposed amendments to the minutes, which emphasised the lack of response from the trustees to her complaints about him, Mr Gallanders refused to accept them even though he had not been present. He told the claimant that “the notes … [did] not reflect accurately all of the issues and it is AVOW’s intention that these will be dealt with thoroughly through the Employment Tribunal legal process” (page 562). Beyond this letter from Mr Gallanders, the claimant received no further outcome to the meeting on 21 January 2009.

The optometrist’s report

[162] The claimant met with Mr Llewellyn again on 30 January 2009. By letter dated 5 February 2009, Mr Llewellyn wrote his report (pages 552 to 553). It was just over a page in length. He commented that the type and standard of lighting used at the respondent’s office was excellent and that the claimant was the first person in 30 years to be troubled by high frequency lighting that he had encountered. He commented that some tinted lenses he had tried on her did not alleviate her concerns caused by the light from the older strip lights in his consulting rooms. In our view, this report was patently inadequate: first, it said nothing about whether incandescent lighting would be of assistance to the claimant; and, secondly, it did not mention the word “migraine” even once.

[163] As an aside, it is unfortunate that Mr Llewellyn failed to obtain the claimant’s consent before sending his report to the respondent, as the conditions of his engagement had stipulated; indeed, this later resulted in him receiving a warning from the General Optical Council (page 628).

[164] On 11 February 2009, the claimant wrote to Mr Llewellyn to seek changes to aspects of his report (pages 560 to 561). In particular, she pointed out that there was a wealth of scientific data showing a connection between migraines and fluorescent lighting and that she was yet to find any type that did not act as a migraine trigger. He replied simply to confirm that his “instructions were to examine your eyes and provide an impartial professional opinion” (page 565). The fact that Mr Llewellyn thought he was merely carrying out an eye examination further demonstrates that his report was not fit for the purpose of being the “Occupational Health Assessment carried out by an Ophthalmic specialist” that Mr Gallanders had promised in response to the claimant’s worries about the lighting in the respondent’s office.

The third and final grievance

[165] On 6 February 2009, Dr Mervyn Rosenberg wrote to the claimant to inform her that he had taken over from Mr Davies as chair of trustees (page 554). In a striking sentence in his letter, Dr Rosenberg also wrote:

In view of the intermeshing nature of the points that you are raising and the link these have to the two Employment Tribunal cases you have lodged against AVOW no further correspondence will be entered into issues that you have raised previously to which you have had various responses.

[166] It is inconceivable that Mr Gallanders was unaware of the contents of this letter. Indeed, as Mr Gallanders told us, Dr Rosenberg took the view that all the claimant’s issues were “operational” and “strategic” and so should “come through the chief officer”, especially as he was the “route into RBS Mentor Services”.

[167] We can understand, to an extent, why the respondent wanted to draw a line under the claimant’s concerns or else defer them to the Tribunal for consideration. However, this would overlook two points. First, the claimant was still an employee and was entitled to be treated in a manner consistent with mutual trust and confidence. Secondly, she had still received no answer to her various complaints against Mr Gallanders that she had been raising, repeatedly and in good faith, since October 2008, and particularly in respect of the comments he had made about her prior to the TUPE transfer in the C1(1) document, the consequent withdrawal of the whistleblowing policy and the requirement that she undergo an enhanced CRB check. It was not enough for the respondent simply to arrange for meetings where the trustees would say, in effect, “we’ll get back to you” and then not do so. The effect of Dr Rosenberg’s letter was to erect a stone wall between the claimant and the trustees on these other issues.

[168] Many employees might well have given up at this point. But the claimant was nothing if not persistent. In a letter of reply dated 11 February 2009, she expressed concern at this “closing [of] correspondence” (pages 558 to 559). She said that, as a result, she had “no other option” but to convert these additional concerns into a third formal grievance. In our view, she was entirely justified in doing so. She also made the point that she would want to correspond over the grievance directly with the trustees, and not Mr Gallanders; this was hardly surprising given that the focus of this new grievance was against him personally.

The DDA grievance: respondent’s rejection of appeal

[170] We would have expected the respondent to reconvene the appeal so that the claimant could discuss Dr Llewellyn’s report with the trustees. That did not happen. Instead, on 24 February 2009, Mr Gallanders simply wrote to the claimant to say that her appeal had been rejected (pages 569 to 570). We accept Ms Brydon’s evidence that she did not see the letter before it was sent. Once again, Mr Gallanders was usurping the role of the trustees.

[171] In his letter, Mr Gallanders said that Mr Llewellyn had “carried out research into the issues surrounding migraines which were induced due to fluorescent lighting”; if so, this research was reflected nowhere in his report. Mr Gallanders indicated that the claimant’s second meeting with Mr Llewellyn had been arranged to enable his research to be conducted when, in reality, the first consultation had led nowhere only because Mr Llewellyn was unsure that he would be paid. Mr Gallanders placed his own gloss on what had happened with the tinted spectacles. He concluded that the respondent had “fully researched the issue over fluorescent induced migraine”, that reasonable adjustments had been made and had “no case to answer”.

[172] We found his reply to be disingenuous: in our view, it was clear to us that, all along, Mr Gallanders had wanted the claimant’s appeal to fail and had been looking for a basis on which to reject it. This explains why he wrote his decision without the input of the trustees who had been chosen to hear the appeal.

Claimant’s resignation

[173] On 25 February 2009, Mr Gallanders responded to the claimant’s third formal grievance with a proposal to hold a recorded meeting on 9 March 2009 “in line with our statutory responsibility” (page 573). His final paragraph to that letter is important, where he wrote (with original capitalisation):

Please note that in respect to any communication between AVOW and yourself all correspondence must be via the Chief Officer. Following advice from our legal advisors we wish to make it clear that all communication between ourselves must be conducted in writing or at meetings when appropriate arrangements have been made to record any discussion. NO officer of Trustee from AVOW will engage in any telephone or face to face conversations with you on any matter related to your employment with AVOW.

[174] We agree with the claimant that this letter was written in a hostile tone. In particular, it added to the height of the metaphorical stone wall that was being erected between the claimant and the trustees, which was entirely inappropriate given that her outstanding complaints were all against him and there was no-one else to whom she could turn to pursue them. This was also contrary to the request that the claimant had made in her letter to Dr Rosenberg, where she had asked to correspond over her new grievance directly with the trustees.

[175] By a lengthy eight-page letter to Dr Rosenberg dated 3 March 2009, the claimant resigned (pages 575 to 582). Her reasons were many and varied but related to all the matters that had occurred during her employment. They included: the respondent’s ongoing failure to adjust; the manner in which it dealt with her grievances about the TUPE and lighting issues; the alleged inappropriate request for enhanced CRB disclosure; its failure to deal with her complaint against Mr Gallanders and his adverse comments about her in the C1(1) document; his subsequent decision to withdraw the “whistleblowing” policy; and so on and so forth. The claimant did not expressly indentify a “final straw” in her letter, but the last act named in the resignation letter was the letter dated 25 February 2009 from Mr Gallanders. We accept her evidence that this was, in her mind, the last straw, since it provided final confirmation that the claimant could seek no redress from the respondent’s trustees.

[175] On 11 March 2009, the claimant applied for permission to amend her second claim to include a complaint of unfair (constructive) dismissal and that amendment was granted.


[208] The adjustment proposed was, in essence, the installation of incandescent lighting. This sort of adjustment is envisaged by the DDA, which refers to “acquiring or modifying equipment”. We know from the evidence of Carys Williams that it would have cost the respondent in the region of £20 to make this adjustment. It would have ameliorated the disadvantage in question; it would have been practicable; it was well within the respondent’s ability to pay; and it would not have disrupted its activities in any way. There was no good reason why the adjustment could not have been made.

[209] So why did the respondent refuse it? The real reason is that it thought it had already made a sufficient adjustment in installing the “friendlier” fluorescent lighting. As Ms Ross said in her follow-up meeting with the claimant on 3 September 2008, “the room [had] just been refurbished [at] significant cost”. It thereafter closed its mind and stubbornly refused to revisit the issue. The scope of the legal duty was not to take reasonable steps to minimise the disadvantage, but to take reasonable steps to prevent it. The claimant had made clear from the outset, both during her brief period of employment in July 2007 and again after the TUPE transfer, that the way to prevent the disadvantage was either for her to work in an office with large windows and good natural light or, that not being feasible, to install incandescent lighting.

[210] We therefore conclude that, throughout the claimant’s employment and up until the moment she resigned, the respondent failed in its duty to make reasonable adjustments. This extended not simply to the initial lighting arrangements in the office but the arrangements at the subsequent meetings she attended.

[211] We also conclude that the respondent victimised the claimant for her protected act of complaining about what had happened during her very brief period of employment in July 2007. She made clear at the time that she considered that the respondent had failed to comply with its duty to make reasonable adjustments and had therefore acted in a manner that contravened the DDA. That victimisation took various forms: the initial reluctance of Mr Gallanders to accept the claimant from DVSC under TUPE; his expressed desire to be “awkward” with her on the issue of medical evidence; his stubborn refusal thereafter to make reasonable adjustments, continuing until the date of her resignation; his control of the respondent’s internal procedures so as to deprive her of a meaningful resolution to her grievances; his subsequent refusal to allow her access to the trustees for redress; his unilateral withdrawal of the whistleblowing policy once she activated it; and, worst of all, his “long shot” of trying to show her instability by seeking an unnecessary enhanced CRB disclosure about her. This last step was reprehensible (a word we do not use lightly) and an abuse of his position; it was also a manifest breach of the implied term of mutual trust and confidence.

[212] The claimant has established a prima facie case that he took such steps because of her previous grievance; in particular, the C1(1) document referred to his “difficulties employing the claimant in the past”. This reverses the burden of proof. The respondent has been unable to show that the actions of Mr Gallanders were “in no sense whatsoever” to do with her previous grievance. The claim of victimisation is well-founded.

[213] As we said above in our factual narrative, the members of the Tribunal were shocked (again, a word we do not use lightly) at the manner in which the respondent conducted the DDA grievance meeting on 7 October 2008. It was used as a mechanism to test the claimant’s ability to withstand the daylight tubes in the office, notwithstanding her clear assertions that such lighting was unsuitable. We note of course that the meeting was held in another room once the claimant requested it. But that is not the point; the point is that it was an experiment carried out without her knowledge or consent and which could have resulted in pain. The claimant’s analogy of a meeting being held upstairs to test whether a person has impaired mobility was a sound one. The fact that the respondent has sought to the last to defend its approach to this meeting in the Hearing before us demonstrates that it still has no appreciation of the nature of migraine and the mechanism of warning signs and delayed response. No explanation was given for why the respondent did not discuss the arrangements for the meeting in advance with the claimant. The only reason the meeting was held in this way was because the claimant suffered from migraines. The respondent would not have treated a person without migraines in this way. It was a clear act of direct disability discrimination.

[214] These matters were also all capable of contributing to a breakdown in mutual trust and confidence. However, there were further matters that contributed to that breakdown:

[214.1] This is a conclusion that we reach in only exceptional cases, but we have reached it in this case without hesitation: from start to finish, the grievance processes were a sham. They did not resemble a fair attempt to deal with the claimant’s concerns. The process was controlled by Mr Gallanders (and, to a lesser extent, Ms Ross). The trustees merely listened to what the claimant said and took no proper decisions in response. They deferred all such decisions to the officers. They failed in their duties to oversee the conduct of the officers. The fact that they are unpaid volunteers is no excuse.

[214.2] This criticism applies equally to the DDA grievance, the TUPE grievance and the third formal grievance. There were outstanding matters in all three. The first involved a misunderstanding and stereotyping of the claimant’s condition. The second never dealt with the claimant’s concerns about why Mr Gallanders had been reluctant to accept her under TUPE. Most serious of all was the lack of any proper attempt to deal with the claimant’s grievance against Mr Gallanders. This included the highly inappropriate remarks he made about her in the C1(1) document as well as her (ultimately correct) assertion that he had sought an enhanced CRB check for improper reasons and his unilateral withdrawal of the respondent’s whistleblowing policy from the moment she sought to rely on it. In those circumstances, it was understandable that the claimant should look to the trustees for redress. The final straw was Mr Gallanders’ refusal in his letter dated 25 February 2009 to allow the claimant even to write to them, closing down for good that final avenue of redress.

[215] We therefore conclude that the respondent acted in fundamental breach of the implied term of mutual trust and confidence. The claimant was entitled to accept that breach and resign; she did so in consequence and without waiving it. She was therefore constructively and unfairly dismissed.


[217] The basic award for unfair dismissal is agreed at £626.70. We also award the sum of £300 for loss of statutory rights.

[218] We are empowered by Section 17A(2)(b) DDA to order the respondentl to pay compensation to the claimant. In relation to her injured feelings arising from the unlawful discrimination, we have had regard to the principles set out by the EAT in Armitage, Marsden & HM Prison Service v. Johnson [1997] IRLR 162 and the guidance of the Court of Appeal in Vento v. Chief Constable of West Yorkshire Police [2003] IRLR 102 (as adjusted for inflation in Da’Bell v. NSPCC [2009] IRLR 19). The claimant gave unchallenged evidence that the experience made her ill; she was diagnosed as suffering from depression. She was hurt and humiliated. That said, she is a strong, persistent and emotionally resilient person who was well able to stand up for herself, as her conspicuously able performance in the Tribunal litigation more than demonstrated. Having regard also to the overall value of the sum, we award her £8,000 as compensation for the injury to her feelings.

[219] Turning to loss of earnings, we note the claimant was on a series of fixed term contracts. They started on 2 January 2006 and the last one was due to end on 30 June 2008 (page 264). Mr Watkin had extended her contract to the transfer date, the effect being that she transferred to the respondent’s employment. Oddly, the respondent did not put her on to another fixed term contract with an expiry date. This is important because it shows that there was not an agreed date by which her employment would have ended in any event by virtue of the expiry of another fixed term. She became, upon the transfer, an indefinite term employee and there is every reason to suppose that, but for the discrimination, she would have remained an employee up to the date of the Hearing. We have decided not to go beyond the date of the Hearing in recognition of our industrial knowledge that the voluntary sector in which the claimant worked (and of which one of the lay members had direct experience) was rather volatile and had a high turnover.

[220] The claimant gave unchallenged evidence that her diagnosis of depression and counseling precluded her, for a while, from obtaining alternative work. She provided us with a commendably clear and detailed schedule of loss and a further statement on mitigation (pages 122 to 124), which included full disclosure of the efforts she has made to find other work and other sources of income. It was not challenged in any meaningful way by the respondent which, after all, bears the burden of proving a failure on her part to mitigate her loss. Having regard to those matters we award the claimant full loss of net earnings up to the date of the hearing at £139.27 x 106 weeks, which is £14,762.62. We subtract the earnings she has received from alternative sources of £2,989.74, producing a figure of £11,772.88. We do not award future loss for the reason given above. We reject the respondent’s suggestion that there should be a deduction for contributory fault because we do not accept that there was any.

[221] By virtue of Regulation 2(1)(b) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, we are required to consider awarding the claimant interest on the award. By virtue of Regulation 6(1)(b) of the same Regulations, in a case involving injured feelings such interest runs from the date of the first discriminatory act (which we have taken to be 1 August 2008) to the judgment date (14 March 2011). Interest accrues from day to day and this is a period of 956 days. Interest on the pecuniary losses accrued from the mid-point, over a period of 478 days. The rate of interest is as prescribed for the Special Investment Account under paragraph 27(1) of the Court Fund Rules 1987. We set out in our original judgment the various rates that operated over the relevant period. Once interest was added, it brought the total award to £21,177.52. The limited award in respect of the photocopying costs is self-explanatory.

Employment Judge B J Clarke
Dated: 19 August 2011



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