Employment Tribunals

Case No. 2410963/2023 2402896/2024 & 2401955/2025 EMPLOYMENT TRIBUNALS Claimant: Ms M Teixeira Respondent: Sainsbury’s Supermarkets Limited HELD AT: Liverpool ON: 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th, 12th 13th, 16th 17th (in Chambers) & 18th February 2026 BEFORE: Employment Judge Anderson Ms HD Price Mr J Murdie REPRESENTATION: Claimant: Respondent: In Person Mr Carter (Counsel) JUDGMENT The unanimous Judgment of the Tribunal is that 1. The claims of discrimination arising from disability as provided for in s.15 Equality Act 2010 are well founded in respect of the written warning and the refusal of the appeal against the written warning. The Claimant is entitled to a declaration that she was discriminated against. All other s.15 Equality Act 2010 claims are not well founded and are dismissed. 2. The claims of a failure to make reasonable adjustments as provided for in s.20 & 21 of the Equality Act 2010 are not well founded and are dismissed. 3. The claims of disability related harassment as provided for in s.26 Equality Act 2010 are not well founded and are dismissed. Case No. 2410963/2023 2402896/2024 & 2401955/2025 4. The claims of victimisation as provided for in s.27 Equality Act 2010 are not well founded and are dismissed. 5. The claim of automatically unfair dismissal under s.103A Employment Rights Act 1996 is not well founded and is dismissed. 6. The claim of unfair dismissal is not well founded and is dismissed. 7. The claim for unpaid holiday pay under the Working Time Regulations 1998 is not well founded and is dismissed. 8. This matter will now be listed for a remedy hearing with a time estimate of 1 day. A Notice of Hearing will be sent out in due course. The parties are directed to a) no later than 21 days prior to the remedy hearing agree a short bundle of any additional documents to be placed before the remedy hearing and b) No later than 14 days prior to the remedy hearing exchange any witness statements relied upon by either side relating to remedy. _____________________________ Employment Judge Anderson 18th February 2026 JUDGMENT SENT TO THE PARTIES ON 15 April 2026 FOR THE TRIBUNAL OFFICE Notes Case No. 2410963/2023 2402896/2024 & 2401955/2025 Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case No. 2410963/2023, 2402896/2024 & 2401955/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms M Teixeira Respondent: Sainsbury’s Supermarkets Limited HELD AT: Liverpool ON: 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th, 12th 13th, 16th 17th (in Chambers) & 18th February 2026 BEFORE: Employment Judge Anderson Ms HD Price Mr J Murdie REPRESENTATION: Claimant: Respondent: In Person Mr Carter (Counsel) JUDGMENT having been given orally on 18th February 2026 and sent to the parties on 15th April 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided: Case No. 2410963/2023, 2402896/2024 & 2401955/2025 2 REASONS Introduction 1. This is the unanimous Judgment of the Tribunal in case numbers 2410963/2023, 2402896/2024 & 2401955/2025 Teixeira v Sainsbury’s Supermarkets Limited. 2. This is a lengthy Judgment that has arisen from a fact finding process that was more complicated than should have been the case. We consider that the task of the Tribunal has been somewhat hampered by the preparation of this case and made lengthier as a result. There are four central reasons for this: a. The first is the range of claims that have been made and the amount of evidence that flows from that. Given the amount of case management that this case went through, it would be hoped that the issues would have greater focus on the key points of dispute. The Respondent did not assist this either by pleading some points of dispute which should not have been controversial. b. The second reason is that the witness statements in this case from both the Claimant and the Respondent do not adequately address the relevant documents or omit key events or relevant evidence. c. The third reason is that the organisation of the bundle is difficult to follow, much of it being out of chronological order or otherwise included without context. There is a photograph section that is not numbered correctly or adequately cross-referred to. The final two sections of the bundle have been added after the other sections with the reader having to navigate through them d. The fourth reason is the number of procedural issues that arose during the case, most notably in relation to failures of disclosure by the Respondent. 3. We have sought to address the length of this Judgment through the use of sub-headings and attempting where possible to deal with matters in a chronological order. Procedural Matters 4. We have taken this opportunity to set out and record a number of procedural matters. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 3 5. The hearing was listed for thirteen days before a full panel. The days were broken down as follows: a. Monday 2nd February 2026 – Housekeeping and reading day b. Tuesday 3rd February 2026 – Housekeeping and Claimant’s Evidence c. Wednesday 4th February 2026 – Housekeeping and postponement to deal with disclosure issue. d. Thursday 5th February 2026 – Claimant's Evidence e. Friday 6th February 2026 – Ms Hindle, Mr Sumner f. Monday 9th February 2026 – Ms Wilmott, Ms Byrne g. Tuesday 10th February 2026 – Ms Sleyyum, Mr Coulson, Mr Butters h. Wednesday 11th February 2026 – Some initial housekeeping, but Claimant unwell and postponed for the remainder of the day i. Thursday 12th February 2026 – Some initial housekeeping then Claimant unwell and postponed for the rest of the day j. Friday 13th February – Mr Sumner (Recalled) & Ms Byrne (Recalled), Mr Anderson, Mr Thackeray k. Monday 16th February 2026 – Submissions followed by deliberations l. Tuesday 17th February 2026 – Deliberations m. Wednesday 18th February 2026 – Judgment 6. Helpfully, the parties attended the Tribunal on the first day of the hearing. This enabled a discussion as to a range of procedural matters. The majority of the first day was taken as a reading day. Some time was taken at the start of day two to further discuss procedural matters. 7. On day three of the hearing an issue of disclosure arose. Some discussion occurred at the start of the day and the remainder of the day was lost whilst the issue was resolved. This is dealt with separately below. 8. On days 8 & 9 of the case (11th & 12th February 2026) we did not hear any evidence. We did undertake some housekeeping on the morning of each day regarding disclosure and witness availability. The reason for not hearing evidence was that the Claimant felt unwell. The Claimant thought that she may have caught some sort of bug. Whilst she did attend Tribunal, which was of use because it enabled discussion, on day 8 she reported feeling nauseous alongside more generalised symptoms of feeling unwell with a lack of sleep. She did not attribute this to the stress of litigation, indicating that she did not feel unwell at all previously, including whilst being cross-examined. On day 9, the Claimant reported that the nausea had subsided but that she still felt generally unwell. The unanimous view of all parties and the Tribunal was that the Claimant could not be expected to cross examine witnesses whilst this was the case. The Claimant apologised for the fact that this had happened, but we Case No. 2410963/2023, 2402896/2024 & 2401955/2025 4 emphasised that there was no need to apologise and that the overriding consideration was a fair hearing for all parties. 9. The Claimant does have current County Court proceedings in relation to the first incident at work. She is claiming personal injury. Neither party sought a stay or has previously sought a stay. Neither party considered a stay to be desirable. It was understood that liability was denied in those proceedings. For the purposes of these proceedings, the parties proceeded on the basis that the injury in the first incident was caused at work and that the Respondent was responsible for that injury. For the avoidance of any doubt, the Respondent has not and does not make any admission of liability. This is solely for the purposes of allowing this ET hearing to progress and to avoid entering into findings of fact which may embarrass the County Court or necessitate a stay in proceedings which commenced in 2023 and have been listed for 13 days with all the associated cost attached to that. 10. Many of the documents in this case were handwritten notes. They had not been typed up for these proceedings. On occasion it was necessary for the Tribunal to take time and agree with the parties what a particular note said. 11. The Respondent applied to rely upon a late witness statement detailing the efforts made to secure the attendance of Ms Blackett, the former Store Manager as a witness. We allowed the Respondent to rely upon this statement. The Claimant did not wish to challenge the contents of this statement and the witness was not called to give live evidence. 12. The overriding objective requires the Tribunal to in so far as it is possible place the parties on an equal footing. However, we explained to the Claimant that we cannot run her case for her. 13. Because the Claimant was representing herself, we discussed the procedure that was going to be followed in this case. We also discussed cross-examination and the basics of asking a question in the Tribunal, such as identifying a page number, asking a question, keeping it short and the need to put your case to a witness. We also discussed what submissions were and their purpose. 14. In addition to the points covered here and the disclosure issues dealt with below, we also record that at times this was a case that required additional case management to ensure that the case remained within the relevant issues to be determined. We also record and this is not a criticism because it is common in the Employment Tribunal for an unrepresented party to struggle with cross- Case No. 2410963/2023, 2402896/2024 & 2401955/2025 5 examination that we sometimes had to ask that a question be reframed. The common issues were asking multiple questions at once, which was remedied by breaking the question down into individual questions, or taking a witness to a document and then not asking anything or putting a question, to which we emphasised to the Claimant the need to put her case, and on occasion gave her time to rethink her approach. Disclosure Issues 15. We consider it appropriate to go into more detail than we otherwise would in relation to the disclosure issues that have occurred over the course of this hearing. We do so because of the volume of disclosure issues that arose and to demonstrate the relevance or limited relevance of the point as appropriate. 16. We also consider that given the content and tone of the third ET 1 submitted by the Claimant, which specifically refers to disclosure issues, it is important that our Judgment sets out the position clearly as to what occurred during the hearing. 17. Both the parties and the Tribunal wished to have a decision on liability within the hearing window. We managed to consider and deal with the disclosure issues within the hearing window. 18. This matter had been subject to a number of case management hearings. There was ample prior opportunity to understand the scope of the case, to do some factual analysis and to give consideration as to what was disclosable. 19. The first disclosure issue is that a large number of documents were not disclosed a) in accordance with the order of the Tribunal and b) disclosed after the witness statements were completed. This was prejudicial to the Claimant as she did not have the opportunity to comment on these documents in her witness statement. 20. The second disclosure issue was the discovery within the Sainsbury’s Blackpool Store of a box file containing disclosable documents and a thumb drive that was contained within an A4 envelope which had writing on. On that thumb drive was CCTV footage of an incident on the 11th January 2024. 21. Counsel for the Respondent informed the Tribunal that a personnel file had been located in hard copy at the store itself. Within that file there was an envelope with a thumb drive which was said to contain footage of the incident on the 11th January 2024, which was described as the second incident in which the Claimant was injured. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 6 22. These documents needed to arrive at the Tribunal in order for counsel to assess whether they were disclosable. Once that exercise had been undertaken, it was then open to either party to make an application to apply to include any document that they wished to rely upon. 23. This impacted on cross-examination as Counsel did not know whether any document would affect the appropriateness of any question asked. It was also important for there not to be a significant question mark about disclosure existing whilst the Claimant, obviously the key witness in her own case was giving evidence. 24. We therefore agreed to stand down until 12.30 on day three to enable consideration of disclosure to be undertaken. This turned out to be too optimistic and the parties were in a position to return at 2.00pm. At this point, the Respondent indicated that it had a) identified a number of documents that may be disclosable which had been handed to the Claimant but that there was no application from the Respondent to rely on them and b) that in terms of the thumb drive, the Respondent did wish to make an application to rely on it. 25. In reply, the Claimant indicated that there were a number of documents to go through and it is likely that she would be asking to rely on them. She asked for time to do this. She indicated that she had viewed the thumb drive and that the video footage ended at a point that did not show something that she wished to rely on. She was concerned that this could be prejudicial as she says that this additional footage would go to the credibility of Ms Byrne. 26. The Tribunal and the Respondent agreed that the Claimant should have more time. Therefore, we indicated that we would reconvene at 10.00am on day four in order to hear any application to admit documents. 27. On the morning of day four, neither party made an application to introduce late documents. The Respondent did make an application to introduce the CCTV footage that was on the thumb drive together with the envelope that the thumb drive was contained in. The Claimant did not oppose this application. The Claimant did submit that on her case, she does not know why the footage cuts off at the point that it does and that additional footage is missing as a result. We indicated to the Respondent that a witness may need to speak to this point. The CCTV footage and the envelope were admitted into evidence by agreement. 28. The third disclosure issue occurred on the afternoon of Tuesday 10th February. As Mr Butters was being asked questions, it became apparent that Mr Sumner had taken a photograph of the Claimant whilst she was at work. The Tribunal had not previously appreciated this. It then became apparent that Mr Case No. 2410963/2023, 2402896/2024 & 2401955/2025 7 Sumner was the subject of a formal investigation that was fully documented, as opposed to simply being given training. 29. The outcome of any disciplinary process was unlikely to be relevant to liability in this matter. However, if there was a documented investigation, that could include evidence, including hearsay evidence that could have a bearing on whether an event occurred or not. 30. We raised this with the Respondent and were informed that late on Monday afternoon, the existence of these documents were brought to the attention of Counsel, which resulted in their disclosure to the Claimant just after 8pm on the evening of Monday the 9th February. We were told this was roughly around 50 pages. No application had been made to include these documents by either side during normal housekeeping. 31. We were concerned by many aspects of this. It was a clear disclosure breach by the Respondent. The Claimant was representing herself and at a disadvantage. We asked the Claimant to consider the disclosure received overnight and to tell us whether she wanted any documents included on the morning of the 11th February 2026. We also informed the Respondent to attend with sufficient copies and also to secure the attendance of Mr Sumner as he would need to be recalled if anything needed to be put to him. In stating this, we were seeking to avoid delay should there be a need for documents to be admitted. We emphasised that we were not pre-judging the matter and the position would be considered by the Tribunal on the 11th February, once we had heard from the parties. 32. The fourth disclosure issue occurred mid way through the evidence of Mr Anderson. There was evidence on the internal system records of an absence review meeting taking place on the 18th July 2024. No such meeting was referred to in the witness statement of Mr Anderson and the Claimant had no recollection of it. 33. The fifth disclosure issue occurred during members questions to Mr Anderson. Mr Anderson was taken to the Attendance Policy that was in the bundle and had been used throughout the case. Mr Anderson was giving evidence on day ten of the case and was the penultimate live witness. As Mr Anderson was the dismissal witness, the member wanted to be clear on what policy was applied as the policy in the bundle appeared to relate more to short term absence. Mr Anderson was asked whether the policy in the bundle was the policy that he applied, he straightforwardly answered ‘No’. He identified the policy in the bundle as a policy that applied to Sainsbury’s Bank, Sainsbury’s Retail & LFC Management & Others category of staff, whereas the Claimant Case No. 2410963/2023, 2402896/2024 & 2401955/2025 8 was an hourly paid shop colleague. Mr Thackeray, who was called immediately after Mr Anderson was asked by the Tribunal at the commencement of his evidence the same point and he agreed with Mr Anderson. Therefore, both the person who took the decision to dismiss and the person who determined the appeal against dismissal stated that the policy in the bundle was not the one that applied to the Claimant. The Respondent was plainly obliged to disclose to the Claimant the correct policy – the duty of disclosure was ongoing. If there was a distinction between short term absence policy and a long term absence policy, both would need to be disclosed. Given this occurred on the Friday afternoon of day ten of a case with submissions due on the Monday, we proceeded on the basis that the Respondent would provide the correct documents to the Claimant and the Tribunal by Monday and that no further determination would be made on Friday afternoon as to the effect of this. 34. On the Monday morning (day 11- submissions) we were handed up alongside written submissions an Attendance Policy and Long Term absence policy. We discuss the effect of these policies as part of our Judgment. 35. Other points also arose, for example, the Claimant has made a claim for holiday pay. At para 33 of his witness statement Mr Anderson provides specific figures as to the annual leave taken but does not cross-reference any document. 36. At the conclusion of the evidence on Friday afternoon, we indicated to Counsel for the Respondent that the issue of disclosure was likely to feature in the Judgment given what had occurred in the case. It was emphasised that we had not deliberated and as to what would be said was as yet unknown. However, we advised Counsel that in submissions, he could well be asked about the reasons for the disclosure failures and whether there was anything else that the Respondent wished to put forward by way of an explanation. 37. In submissions, Counsel for the Respondent recognised what had occurred and that it was unacceptable. He submitted that the problems that arose were unintentional and that the prejudice to the Claimant had been dealt with through the approach that had been taken. 38. The Tribunal accepts that the breaches were unintentional in the sense that the Respondent has gained no strategic advantage through its approach to disclosure and that there is nothing being held back because it is problematic for the Respondent. Rather, what has occurred here is a lack of attention to detail, for example the placing of the wrong policy in the bundle, a lack of an inquisitive mind performing the necessary analysis as to what proper disclosure looks like with this list of issues or someone taking adequate ownership for the disclosure exercise within the Respondent. We acknowledge that the Respondent was facing a wide ranging case which spanned a significant period Case No. 2410963/2023, 2402896/2024 & 2401955/2025 9 of time and in respect of which there was a lengthy and unfocussed list of issues. However, matters such as the correct policy or the retention of documents in a safe would not be impacted by that, these matters would always need to be disclosed on the Respondent’s own case. The Issues 39. The list of issues was discussed with the parties at the outset of the case. 40. The list of issues was contained within the bundle. It was in Arial font 12 and readable. Due to the length of the issues and formatting difficulties, it has not been possible to include that list within the main body of this Judgment. Therefore, the list of issues is appended to this Judgment. 41. The Respondent accepts that at all material times, the Claimant was a disabled person within the meaning of s.6 Equality Act 2010 in respect of the dislocation of her right knee. The Respondent further accepts that at all material times, it had knowledge of the Claimant’s disability. 42. In relation to the justification defence to the s.15 claim, the legitimate aims had now been pleaded at para 37 of the amended Grounds of Resistance. These aims were inserted to para 2.4. of the list of issues. 43. We discussed para 3.4 of the list of issues at length. The purpose of these items given that they had been included in a list of issues was not immediately clear. The PCP’s and the alleged substantial disadvantage were set out at 3.2 and 3.3 of the list of issues as you would expect. 3.4 stated “The Claimant relies on the following examples as evidence of the application of the PCP and the substantial disadvantage”. However, the matters contained within 3.4 did not self-evidently do this nor was it clear why 3.4 had been inserted into the list of issues at all. At best, some of them could be said to be a failure to make an adjustment or more general background evidence. In discussion with the parties, Counsel for the Respondent indicated that it was his intention to cross-examine on these factual matters and we have considered this as part of the overall factual matrix. Findings of Fact 44. We begin with some observations on the witness evidence that we heard before we turn to specific findings of fact. These observations provide some context to the specific findings that we make below and in particular because some of the witness statements that were placed before had problems with them, this is a method of providing some structure and enabling those problems to be set out Case No. 2410963/2023, 2402896/2024 & 2401955/2025 10 in a way that can be followed. However, we seek to resolve specific findings of fact where there is relevant evidence before us. We direct ourselves in accordance with para 17 of HHJ Tayler (and members) Judgment in Pal v Accenture (UK) Ltd [2026] EAT 12 in which it was stated: “Generalised findings on credibility are rarely a particularly useful tool for resolving specific issues of fact about which there is relevant evidence. It is nearly always better to assess the evidence relevant to the issue and reach a determination on balance of probabilities. Even if a witness is unreliable about some matters it does not mean that they are not telling the truth about the issue to be determined. Witnesses who have generally been reliable on most issues may be mistaken about others.” (Para 17). 45. The Claimant’s witness statement did cross-refer with some documents but given the length of the ET 1’s, the length and breadth of the list of issues and the size of the bundle, it was far too short and did not cover all relevant events and documents. At appropriate points in cross-examination, the Claimant was taken to the pleading contained within her lengthy grounds of complaint. Notwithstanding the number of case management hearings that took place prior to this full hearing, we attribute this state of affairs to the fact that the Claimant is unrepresented. We do record that this inevitably made the cross-examination of the Claimant’s evidence more challenging for the Respondent and it has been more difficult to follow parts of her case as a result of the problems with the witness statement. 46. We find that the Claimant’s complaints as to the hostility that she received whilst at work have a limited basis and are not entirely without foundation. However, we do not take this too far and the position is plainly nuanced. Whilst we consider that on some occasions, the Claimant has seen a conspiracy where one does not exist, on other occasions, it is clear that members of staff, most notably Mr Sumner and Ms Byrne had an issue with their perception of the Claimant and found her a challenge to manage, though it does not follow that these individuals did all of the things that are accused of. We make specific findings below. 47. We now move to the evidence given by witnesses called for the Respondent. There were problems with the witness statement of Mr Sumner. In his witness statement at paragraph 2, he states in reference to his relationship with the Claimant “I believe that we had a professional and friendly relationship.” Later on in the statement he says “I was aware that she had spoken to ER, but this had no bearing on how I managed her.” Neither of these statements survive basic scrutiny. It is clear that the Claimant’s relationship with Mr Sumner was problematic and at times dysfunctional. It was necessary for Mr Sumner to be recalled so as to allow him the opportunity to deal with and respond to some of Case No. 2410963/2023, 2402896/2024 & 2401955/2025 11 the contents of documents that were not referred to in his witness statement. Mr Sumner’s evidence following his recall was to the effect that he was wary of the Claimant. 48. One particularly notable incident was not referenced in the witness statement of Mr Sumner. Mr Sumner took a picture of the Claimant whilst she was on the floor of the shop. He saw her and walked towards her and took the photograph without asking how she was. He was not able to tell us when he did this. He did not retain the photograph and it was not before us. He said he did it as based upon seeing the Claimant on the floor and his wish for there to be evidence of her on her phone. Whilst the Claimant has not included this event as one of her claims, we consider that because this is in contrast to the picture painted by the witness statement of Mr Sumner as to the relationship between the parties, it is evidence of there being problems with the relationship and a lack of trust. This is also borne out by the wider observation that Mr Sumner was taking a picture of the Claimant in the workplace and the Claimant was regularly covertly recording her colleagues in the workplace. 49. The witness statement of Ms Byrne also omitted to deal with relevant evidence. It was necessary for Ms Byrne to be recalled so as to allow her the opportunity to deal with and respond to some of the contents of documents that were not referred to in her witness statement. When recalled, in oral evidence she referred to a lack of trust in the Claimant. There was some evidence that Ms Byrne does not think through the answers that she gives. For example when interviewed by Mr Coulson in February 2024 [pg 1211] and asked “Hows the relationship been?” She answers “Good, always been kind with her, no issues.” yet in the same interview a few pages later when asked “Have you ever had performance conversation with MT?” she refers to not being afraid of her but not being able to talk to her. 50. The effect of this was that we took particular care when assessing the evidence and making findings of fact regarding Mr Sumner and Ms Byrne. 51. Ms Marchant gave evidence remotely to accommodate her maternity leave. Her witness statement was somewhat brief given her level of involvement. We find that she was not particularly engaged with the detail of the case and struggled to answer detailed related questions. 52. Ms Hindle gave evidence in respect of the disciplinary warning. Ms Hindle has retired and is now outside the business. Ms Hindle was not able to assist the Tribunal significantly with regard to her thought processes. We were left with the impression that she viewed the disciplinary warning as somewhat inevitable. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 12 53. The witness statement and subsequent evidence of Ms Hanan Sleyyum was problematic. We are not unworldly and understand the drafting process of a witness statement with the assistance of a solicitor. However, we also understand that a witness statement should use a witnesses normal vocabulary and be in their own words. Ms Sleyyum’s statement included “....this is an opportunity for them to take steps to improve the same.” We are aware that some solicitors use such a phrase in correspondence but it is not a demonstrative pronoun in common use. The witness statement also sought to deal with quasi legal matters in a way that was surprising. Para 16 stated “The outcome of the Claimant’s disciplinary appeal was not made because of the Claimant’s disability or anything arising from that disability.” Given that the Claimant’s appeal related to her absence from work due to her knee, we cannot understand why this was said and then affirmed as true. However, we also wish to be clear that we do not consider that Ms Sleyyum has positively lied to the Tribunal. She has been ill-served by a professionally drafted witness statement and gave us the impression of being naive as to her obligations in the internal process and as a witness before the Tribunal. 54. We found both Mr Coulson and Mr Butters both to be reliable witnesses, who were able to engage with the evidence and give straightforward answers to questions with a view to assisting the Tribunal. We were assisted by the level of detail they went into in their investigation and conclusion documents. We consider it is relevant that they were somewhat removed from the situation and were able to take a more objective view of the situation. A number of their documents were documents that were not included in the bundle in chronological order in the way that they should have been, rather inserted late at the end of the bundle. We consider that this is the responsibility of the Respondent not the individual witnesses. 55. Mr Anderson was a truthful witness. When asked by the panel, he clearly identified the Attendance Policy in the bundle as the incorrect one. On other matters relating to the dismissal, he did struggle with some of the detail. Examples include the extent of and details of his conversations with employee relations, the lack of recall of an absence management meeting on the 18th July 2024, the detail of and content of a PILON letter that appears to be generated prior to the dismissal meeting. 56. Mr Thackeray gave clear evidence regarding the appeal process and did so in a way that the Tribunal could follow. He provided granular detail and was able to emphasise his independence and thought making process. 57. One of the common features of the criticisms made above is that insufficient care was taken by both sides in the preparation of their witness statements. In Case No. 2410963/2023, 2402896/2024 & 2401955/2025 13 a lengthy hearing, evidence is scrutinised, and gaps in the evidence are exposed. 58. We now move on to our specific findings of fact. 59. The Claimant commenced employment with the Respondent as a Trading Assistant on the 22nd August 2019. The Claimant was employed at the Blackpool store, from November 2021 which is a large store with a petrol station. 60. The Claimant worked the night shift between the hours of 7pm through to 5am. She worked two shifts a week, the shift starting on a Friday or a Saturday. 61. Whilst a Trading Assistant can be expected to undertake a range of tasks, the core element of the role is stock replenishment. That is to say, goods are delivered into the store, previously packaged by central warehouses and the staff then take this stock from the storage area onto the shop floor. Items can be taken from the store onto the shop floor in more than one way, depending on the stock, depending on how it has been packaged. One of the methods is ‘cages’ where items are in a horizontal cage and items are then removed and placed on the shelf. 62. On the 5th March 2022, the Claimant had an accident at work. This was a Saturday. No admission is made by the Respondent as to the facts of this and it is defending itself in separate personal injury litigation. 63. The Claimant’s right knee was injured. She suffered a dislocation of her knee. This caused the Claimant to have immediate mobility problems. She experienced pain, had trouble bending down and remaining standing. 64. The Claimant commenced a period of sickness as of her next shift, which was on the 11th March 2022. She did not return to work until the 27th September 2022. 65. Little or no evidence has been placed before us as to what happened during this first period of sickness. It is not the subject of a claim that is before the Tribunal. 66. We do note that the Claimant sent a letter on the 6th September 2022, regarding problems that she was having with her pay and also highlighting her wish to return to work but that there had been a delay affected by a change in manager. This document references commencing Employment Tribunal proceedings. This letter has not formed part of either parties case. We note that a grievance Case No. 2410963/2023, 2402896/2024 & 2401955/2025 14 meeting subsequently took place with Ms Blackett the Store Manager on the 17th December 2022. 67. Upon the Claimants return at the end of September 2022, there is some evidence that there were problems with her return to work. 68. Upon her return a Workplace Adjustment Plan, otherwise known as a WRAP was put into place. [pg311-313]. The relevant manager was Mr Paul Matthews. It was recorded that the Claimant could not walk too far, had problems going up and down stairs, she had pain radiating from her hip down her leg, she had difficulty sitting long periods she was struggling to bend and had a reluctance to put weight or strain on her right leg. Working on the top shelves of the store could also be difficult. Symptoms would vary from day to day. 69. The Claimant suggested adjustments such as shorter shifts and light duties whilst recovering, help with pulling heavier cages and a wish not to use pallet trucks. This appears to be agreed to by Mr Matthews with a review due four weeks later. 70. The next review appears to have taken place on the 7th December 2022 [pg 315]. The note of this meeting could be clearer. The relevant manager was Hanan Sleyyum. The Claimant reports that she is going to physio every three weeks. The Claimant reports that her knee has not healed, she is in pain and has difficulty in moving around, she cannot lift anything heavy and struggles with basic house chores. 71. The Claimant asked to remain on light duties and some other points were discussed. It was agreed that the Claimant would continue on adjusted hours, that she would be able to use a walking stick at work and that she would continue with adjusted hours. A possible referral to Occupational Health was mentioned. 72. On the 9th December 2022, the Claimant alleges that there was a further workplace accident. She said to Ms Byrne words to the effect of that she felt OK at the time but that this may change later. We take this as a reference to the way in which knee injuries can be variable as can swelling or pain levels. . 73. The recalled evidence of Ms Byrne included a note that she had written on the 13th December 2022 referring back to the 9th December 2022. It is titled ‘Honey Byrne statement for MT leaving work early’. 74. The explanation for this note was not that the accident occurred and this was the incident reporting process. This note was said to be evidence of Ms Byrne Case No. 2410963/2023, 2402896/2024 & 2401955/2025 15 feeling that she was walking on eggshells. The evidence of Ms Byrne was that she produced this note ‘because she saw what happened to John Sumner’. One of the events cited that justified the creation of this note was a reference to the car vandalism event that occurred in August 2023 and therefore which could not have been a relevant factor. Whilst the note itself may seem relatively innocuous in its content, we do note at this stage that Ms Byrne appeared to be creating it for her own purpose rather than as internal Sainsbury’s document and that her somewhat confused evidence on this point was not contained within her witness statement. 75. The Claimant was off work after the 9th December, returning on the 15th December 2022. 76. On the 28th December 2022 [pg 319] the Claimant met with Ruth Marchant for a WRAP review meeting. The Claimant stated that her injury was not healing well and that her physio said that she should take some time off work. Her position was that her injury had deteriorated. The Claimant requested to reduce hours and to drop Saturdays. It was agreed that the Claimant would remain on light duties. 77. On the 18th January 2023, the Claimant had a further WRAP meeting with Mr Gittins. [pg 340]. We would note that this appears the fourth manager that the Claimant has met with through part of the WRAP process. There appears to be a lack of continuity in the WRAP process in terms of the manager responsible for considering adjustments. This is linked to or compounded by the fact that the reasoning in the WRAP is not always clear or otherwise open to interpretation. 78. The Claimant says that this document confirms that she should not be working cereals or that they were removed from the list of things that she could do. The document does not refer to cereals either as something the Claimant could or could not do. It does refer to paperware, single pack crisp and nappies. 79. A WRAP review takes place on the 22nd February 2023 with Hanan Sleyyum [pg 344]. This references the possibility of the Claimant working tills albeit with the Claimant wearing a camera. The Claimant says that she is unable to work spotted items. Spotted items are items which are placed on the floor on an aisle with a view to then being placed on a shelf by an employee at a point in the future. The conclusion of the review is written as ‘continue with original plan’. 80. The Claimant says that her condition is deteriorating further. She has a physio appointment in February. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 16 81. On the 15th March 2023 the Claimant goes off sick. Absence review meetings with Ruth Marchant took place on the 22nd May 2023 [pg 346] and the 1st June 2023 [pg 350] 82. At the 22nd May 2023, Ruth Marchant referred to the Claimant’s work with John Lewis using the phrase “which is conflict of interest”. With reference to the Claimant refusing tills it is stated “have explained as this can be seen as conduct and that all training will be given.” 83. An absence review meeting took place on the 21st June 2023 with Ruth Marchant. There are two sets of notes disclosed regarding this meeting. They contain differences. The handwriting is difficult to read and the sentence structure is in note form. [pg 350 & pg 354]. Both notes record the Claimant described her knee as being better, that she was walking with a stick and was attending physio and going to exercise classes. It is recorded that the Claimant is not willing to work on tills due to safety concerns. The second note appears to agree the Claimant going to work in the petrol station between 18.00 and 23.00 on Wednesday and Friday, with the matter to be subsequently reviewed after 2 weeks. 84. On the 19th July 2023 a further OH report was produced. The Claimant did not agree with this report. We can see why. It cited the typical recovery time for a dislocated knee as being 6-12 weeks and then extrapolated that the Claimant would be fit to return by the end of August. We would want to know more as to how or why that conclusion was reached in relation to this specific individual given the history of this specific impairment. 85. On the facts and given the length of the injury to that point, there was at the very least a plausible avenue that there was something more serious going on with the Claimant’s knee at that point. This case generally suffers from a lack of reliable medical evidence. There is no positive evidence that the Claimant was malingering and we consider it is more likely than not that she was in pain and that whilst the impairment would vary, there was not long term and sustained improvement. 86. The Respondent has placed significant weight on the Claimant not disclosing that report to the Respondent at the time or thereafter and submits that she misrepresented the position when asked about the report by Ms Marchant in the months thereafter. In cross-examination, the Claimant did have difficulty in adequately addressing why she did not say in open terms to Ms Marchant that there was a report, that she did not agree with it. Some specialist evidence at this point would have assisted, though we also accept that it may not be proportionate to pay for it privately and that the problems of accessing specialist care on the NHS in good time is well understood. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 17 87. The WRAP of the 29th July [pg 368] is with Ruth Marchant. This refers to petrol shifts being introduced. The details are recorded as 18.15 to 23.15 then moving to the shop to 4.15 am. on a Wednesday and 17.15 to 23.15 on a Friday. Whilst the note does not refer to the Claimant working in the store after 23.15 on a Friday, it is clear from the evidence that we heard and the surrounding information in the note that this is what was agreed despite the lack of it being written down. 88. The WRAP refers to only completing light duties. Bulkies, crisps, cereal, dress clothing if needed are referred to. It expressly refers to extra rest breaks when needed. 89. The Claimant returned to work on the 4th August 2023. 90. On the 9th August 2023, a disciplinary meeting was held. We note that the chronology provided by the Respondent and disagreed with by the Claimant refers to a disciplinary investigation taking place on the 9th July 2023. We note that the handwritten notes are signed as of the 9th July 2023. We find that the Claimant is correct and that the documents at 356-357 are the notes of Ms Hindle and the notes at pg 360 are the formal notes of the meeting on the 9th August. The reasons for this are i) the Claimant returned to work on the 4th August 2023 and the warnings policy is applied once the employee returns to work and ii) the handwritten notes refer to giving the Claimant a written warning an event which is agreed to take place on the 9th August 2023. 91. The First written warning [pg 380] was said to be live for a period of 12 months. 92. After the meeting had concluded, Ms Hindle said to the Claimant words to the effect that the warning was an “opportunity to improve her attendance.” The Claimant says that she found this comment to be upsetting. 93. The Claimant appealed the warning by letter dated 15th August 2023 [pg 382]. In relation to the comment by Ms Hindle, it is referred to in her appeal letter in the following terms “whilst I am sure that no offence was meant and I have no issue with Maureen I find this totally unacceptable.” Later on in the appeal letter, the Claimant says “Maureen’s comment only further highlights the lack of consideration and credence the store gives to my disability.” 94. On the 18th August 2023 [pg 397] a further WRAP meeting took place with Ruth Marchant. The Claimant described the ongoing knee symptoms. It was clear that she was asking not to work consecutive shifts due to the need to rehabilitate. As to what was else discussed, the handwritten note is not clear Case No. 2410963/2023, 2402896/2024 & 2401955/2025 18 but the outcome was that Ms Marchant would be discussing the Claimant’s shift patterns with Employee Relations. 95. On the 25th August 2023, the Claimant alleges that Julia Blackett, the Store Manager refused to investigate damage that occurred to her car. We find that there was some damage to the Claimant’s car. We have not heard from Julia Blackett, who has retired and no longer works for the Respondent. The Respondent has sought to voluntarily obtain the evidence of Julia Blackett and has provided an undisputed witness statement as to the attempts that it has made to secure that witness evidence. That undisputed witness evidence includes a hearsay assertion from Ms Blackett that she has limited memory of the relevant events as it relates to her. The Respondent has not sought a witness order to compel a reluctant witness, but we decline to draw an adverse inference as to the facts in these circumstances. The Respondent has explained its position, which is an understandable one. However, even if we do not draw an adverse inference, we must still determine the facts as to what actually happened. 96. The CCTV evidence that the Claimant requested was not secured and that much is an agreed fact. However, the Claimant did not include this incident in her witness statement beyond referring to the fact of her car being damaged. It is contained as part of her pleading in the ET 1 [pg 77]. The Claimant has not provided any evidence to link the failure to obtain CCTV to her disability or to her protected acts. In her ET 1 the Claimant alleges that her adjustments needs were being leveraged against her. We are not able to make this finding of fact which is no more than a bold assertion. 97. On the 30th August, the Claimant alleges that Mr Sumner required her to take her break on the shift after three hours. The Claimant says that whilst she was working at the petrol station, she received a telephone call from a Mr Cullen who asked her to take her break whilst she was at the petrol station, not the main store. The Claimant asks us to infer that this instruction came from Mr Sumner as a targeting of her. 98. In general terms, we accept the Respondents evidence that employees were free to take their break as they wished, subject to any business need such as a delivery arriving or being in the middle of a time sensitive task. As to the 30th August, Mr Sumner positively denies instructing Mr Cullen to this effect. We have not heard from Mr Cullen. We find that there was no instruction from Mr Sumner but this does not mean that there wasn’t a phone call from Mr Cullen. Given that the only direct evidence is that of the Claimant, we accept a phone call was made but do not find that it was an instruction from Mr Sumner. We consider that this was a one off and not a regular occurrence. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 19 99. The Claimant says that on the 31st August 2023 she had a conversation with Ruth Marchant, Ms Marchant refers to conversation that occurred on the 2nd September. The Claimant says that she complained regarding the behaviour of Mr Sumner. 100. The Claimant commenced Early Conciliation on the 31st August 2023 (Date A). 101. On the 1st September 2023 at a WRAP meeting, Ruth Marchant asked the Claimant to chase her OH report. [pg 407] 102. A further WRAP meeting took place on the 22nd September 2023 [pg 425] with Ruth Marchant. The Claimant was asked to provide more medical evidence and the absence of medical evidence was referred to. At this point, the Respondent still did not have access to the most recent OH report. 103. This is a convenient point to record that one of the key drivers of the problems in this case is the WRAP process. This includes the following i) we agree with the subsequent recommendation of Mr Butters in the fair treatment process [pg 549] that a WRAP which is supposed to be identifying specific adjustments should be a living (organic) document that is amended as the situation changes. This does not mean that records cannot be kept and previous versions of the WRAP can be stored but a single, living, current WRAP would serve both employer and employee better. ii) the WRAPs are handwritten rather than typed and are occasionally illegible, and at times the sentences are not complete. If a WRAP is not decipherable it is hard to see how it of assistance. Iii)Given that the Claimants injury is musculoskeletal and not for example something more amorphous such as ill health related to depression, there is no good reason why what the Claimant can and can’t do be set out in simple terms without any need for ambiguity. For example what is meant by ‘light duties’ what is meant by ‘cereal’. In these proceedings at times the parties have sought to interpret a WRAP as they would a contract. All that is required is basic common sense. We are unimpressed by the Respondents distinction in these proceedings between low level and picking off the floor. It is a serious knee injury, the bending of the knee is the problem. 104. Ms Sleyyum heard the Claimant’s appeal against the written warning on the 22nd September 2023 [pg 452] 105. The witness statement of Ms Sleyyum states “I was satisfied based on the evidence reviewed and my investigation into the disciplinary appeal that Claimant (sic) was treated in the same way we would have treated anybody Case No. 2410963/2023, 2402896/2024 & 2401955/2025 20 that had such significant absences and absence triggers.” We find based upon this statement and the other evidence given by Ms Sleyyum that she did not take into account the Claimants disability when refusing her appeal nor did she make any adjustments. 106. Both Ms Hindle and Ms Sleyyum were asked about the training they received and whether that explained why absence management was utilising the language of disciplinary and disciplinary warnings. Neither witness was able to give any insight as to why this language was used. 107. The Claimant alleges that at some point in September 2023, Ms Byrne expressed frustration that the Claimant could not be fired. She also says that Ms Byrne was talking about the fact that the Claimant had commenced Early Conciliation. The Claimant relies upon what is contained within the texts of someone called Morgan Williams who worked in the store. Morgan has not been called as a witness to the Tribunal. As with some other aspects of this case, the evidence is vague on this point as to what exactly was said and when. On the one hand, we have the assertion by the Claimant utilising a written message from an individual who has not been called as a witness. On the other hand, there are the problems that we have outlined above regarding the credibility of Ms Byrne as witness and in particular the fact that the concerns that we have regarding Ms Byrne as a witness is that she sought to minimise her true feelings which include frustration or defensiveness regarding the Claimant. Frustration or defensiveness could be expressed as a frustration about not being able to remove someone from the workplace. 108. We have considered this carefully. We do find that in general terms it is more likely than not Ms Byrne did in effect warn others (e.g. Brandon and Morgan) regarding communication with the Claimant and at the very least infer that she was a troublemaker. We also consider it to be more likely than not that the word ‘fired’ was used. 109. In making this finding, we understand the risk of hearsay evidence. The basis for this finding is the extent to which Ms Byrne was keeping records of some interactions with the Claimant, the content of her subsequent fair treatment interview and also her oral evidence before us whilst being recalled in which she openly stated her lack of trust in the Claimant. 110. This is an opportune point to note that both sides have a degree of responsibility for the situation that had developed to this point. The Claimant was plainly a challenge to manage. She would frequently challenge others, in strident terms. She was covertly recording colleagues at work without their permission over a sustained period. There was plainly a lack of trust on both sides and both sides bear a degree of responsibility for that. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 21 111. On the 27th September 2023, the Claimant completed her work in the petrol station and drives over to the store , which was closed to the public in order to continue the remainder of her shift. She was unable to gain access. The Claimant made multiple phone calls to the absence line (at least 40). We accept the Claimants evidence that this was the number that she had been told to call. 112. We recognise that this was after the Claimant had commenced early conciliation. We also recognise that there is wider evidence of Ms Byrne being most charitably weary and defensive when it came to the Claimant and least charitably suspicious of the Claimant. We have considered this as part of our findings of fact. 113. However, we do not find that Ms Byrne deliberately kept the Claimant out of the store. There are many reasons for this finding of fact. We accept the evidence as plausible that the absence phone was on charge and whilst someone should have given thought to that, it is an explanation as to why the calls went unanswered. We also consider that it is implausible that Ms Byrne would do as the Claimant suggested. As a matter of basic common sense, the risk/reward ratio would be too high. Ms Byrne would be placing the entirety of her employment at risk in a bold act, witnessed by others who could turn on her or report her in return for keeping the Claimant from coming into work. It is more likely than not that the simple explanation is correct rather than the more unlikely one. 114. The First ACAS Early Conciliation Certificate was issued on 10th October 2023 (Date B). 115. The Claimants First ET 1 was submitted on the 14th October 2023. 116. On the 20th October 2023, the Claimant had a conversation with Ruth Marchant. The Claimant raised her concern that she was not always able to take her rest breaks when she needed. Ms Marchant agreed to speak to Employee Relations. 117. On the 15th November 2023, the Claimant makes a number of allegations in her pleaded case which are not then repeated in her witness statement regarding the conduct of Mr Sumner and Ms Byrne. Further allegations are made as to Ms Byrne and Mr Sumner failing to follow the WRAP on the 29th November 2023. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 22 118. Our findings on the approach of Mr Sumner and Ms Byrne to the Claimant’s WRAPS is that they plainly found the situation frustrating and there were plainly communication problems. However, we do not find that on any occasion the Claimant has proven that either Mr Sumner or Ms Byrne deliberately and intentionally gave the Claimant duties which they know she was not able to undertake. We make this finding because there is no evidence of such an instruction. The height of the evidence is words being used that are ambiguous as to their interpretation. 119. The Respondent points to the fact that at no time has the Claimant been disciplined in relation to failing to follow instructions. 120. The evidence of Mr Sumner and Ms Byrne was to the effect that the underlying instruction to the Claimant was to the effect of ‘do what you can or do what you are able’. We accept that this was the intention of Mr Sumner and Ms Byrne. The issue in this case is the extent to which the Claimant and her managers effectively communicated with each other and the extent to which the WRAPS or the instructions were capable of being interpreted. 121. For example, we accept that items were spotted on the floor of the store, including on aisles on which the Claimant worked. We also accept the evidence of Mr Sumner that the Claimant was not expected at least by him to pick these up. 122. It is right to record that there was low level conflict and there was defensiveness as each party retreated into their positions. 123. On the 28th December 2023, the Claimant alleges that she was injured on the shop floor. Her pleading states that her knee ‘blew out’. 124. The Claimant alleges that this occurred on the cereal aisle. Cereal can include items which are light and items which are heavy. It is the Claimant’s case that she was made to lift heavy items. It is the Respondent's case that it accepts that the Claimant was assigned to do the cereal aisle but does not accept that this would require her to do the cereal items which she could not lift and would not be compatible with light duties. 125. The cereal point is a microcosm of the problems with communication that pervade this case. We accept that it is the intention of the Respondent that the Claimant is doing light duties. We also accept that the Claimant is assigned to ‘cereal’ and that there does not appear to be a distinction (e.g. on the board) between light and heavy. We do not accept the Claimant’s case that she was positively required or instructed to lift heavy cereal. What we do accept is that the packaging of a cage of goods or otherwise would not be done in a way that would assist the claimant in performing her duties. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 23 126. The Claimant raised a grievance on the 28th December 2023 by sending correspondence to Ruth Blackett. It is common ground that Ms Blackett did not respond to this email. We find that this was by omission rather than deliberate and consider this matter further below. 127. There is CCTV footage of an incident on the 11th January 2024. The CCTV footage shows the Claimant working putting goods on the shelves on an aisle. She is using a stick and is sometimes working one handed. The goods are in a cage which has wrapping around it. 128. The CCTV shows goods falling off the cage. As this happens some goods move towards the Claimant and there is a slight step back by her. 129. The parties do not agree on what this footage shows. Our finding is that there does not appear to be any impact of significance on the Claimant. The Claimant refers to the moving back of her leg as being the pain that she was caused. 130. The Respondent relies upon this as adverse to the Claimant’s credibility. It says that the Claimant reported to Ms Byrne words to the effect of that stock had hit her leg. The Claimant did say that she was ok but that she was concerned that this may not be the position in a few hours. 131. We do not consider that this point totally undermines the Claimant’s credibility, but it does to some extent show that the emphasis put on something by the Claimant is not the full picture. 132. A further Occupational Health report was obtained on the 12th April 2024, the referral having been made on 11th Jan 2024. It referred to the Claimant having chronic knee pain and reduced mobility. We pause at this point to note that this appears to be a more understandable medical position given what is known than was in the previous, withheld report. The report refers to the Claimant possibly not being suitable “for moving and handling activities if she is only able to do so with one hand.” [pg 888]. 133. At this point in time, the Claimant was using a stick at work on every shift. This was manual work. Moving stock onto shelves with one hand appears to us as a Tribunal to be problematic. 134. We can understand the perspectives of both sides. The Claimant was in pain. Much of the role she could not undertake. The medical position varied in terms of flare ups but there was no overall improvement. The Respondent would have been reluctant to say to an employee that she could not attend work Case No. 2410963/2023, 2402896/2024 & 2401955/2025 24 at all on medical grounds. We know that the Claimant ended up going off sick in May. 135. Mr Coulson was appointed to consider the Claimants grievance. He spoke with the Claimant on the 12th February 2024, Ms Byrne on the 26th February 2024, Ms Marchant and Mr Sumner separately on the 2nd March 2024. 136. The February 2024 WRAP appears to be a significant improvement on previous WRAPS in terms of its clarity. 137. Having covered all of the previous WRAPS, it is convenient at this point to deal with a point that the Claimant has raised with witnesses during the hearing. It has been put to a number of witnesses that the Claimant denies that it is her signature on some of the WRAP documents. One witness, Ruth Marchant denied that it was her signature on one of the WRAPS. This is plainly a concern. However, the Claimant seeks to rely upon the WRAPS in order to establish her case. She has not identified or put to a witness where a WRAP is said to be to her detriment or otherwise inaccurate. 138. On the 27th March 2024 the Claimant received her Fair treatment outcome letter [pg 539] 139. On the 2nd April 2024, the Claimant commenced Early Conciliation again (Date A). The second certificate was issued on 16th April 2024. 140. On the 7th April 2024 the Claimant appealed the Fair Treatment Process Outcome [1245]. Mr Butters was appointed to consider the appeal. 141. On the 15th May 2024, the Claimant went off sick. She did not return to work. 142. There is an initial reference to the Claimant possibly having gout at this point in time, which it appears on the information we have was a misdiagnosis. 143. The Second ET 1 was submitted on 16th May 2024. 144. On the 18th July 2024, the Claimant had a health review meeting with Mr Anderson. This was referred to by neither party in their witness statements, but is referenced on the employee relations system. We find that it is more likely than not that this conversation took place by way of telephone. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 25 145. On the 14th August 2024, Mr Butters wrote to the Claimant with the outcome of her fair treatment at work appeal. That appeal decision letter upheld the original decision of Mr Coulson. The letter went through matters in detail, noting a number of points whereby good practice has not been followed. 146. Mr Sumner was subjected to a subsequent disciplinary process as a result of the outcome of the fair treatment process. He was interviewed as part of that process. As with other points noted above, this was not covered in his witness statement at all. Subsequent disclosure relating to this was given to the Claimant on the evening of day 6 of this case as noted above. It follows that these disclosable documents were not referred to in his witness statement either. 147. We have expressly excluded from our consideration of the facts the disciplinary outcome given to Mr Sumner. The Claimant was not interviewed or asked questions as part of this process. Neither party has suggested that it is relevant to the question of liability. What is relevant is any statements made by a witness as to what occurred in relation to events that the present claims are concerned with. 148. A further health review meeting took place between the claimant and Mr Anderson on the 7th November 2024. [pg 1124]. 149. A further health review meeting took place on the 8th January 2025. 150. The final health review meeting took place on the 6th February 2025. 151. On the 6th February 2025, the Claimant was dismissed by Mr Anderson in a meeting with a payment in lieu of notice. The stated reason was capability. 152. On 6th February 2025, the Claimant commenced ACAS Early Conciliation for a third time (Date A) 153. On the 20th February 2025, the Claimant submitted her appeal against dismissal. 154. The appeal against dismissal meeting took place on the 18th March 2025 with Mr Thackeray. 155. By letter dated 19th March 2025, Mr Thackeray dismissed the Claimants appeal against her dismissal. He gave clear reasons for his decision which are recorded in his decision letter. We accept these reasons as being genuine. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 26 156. In evidence before us, the Claimant accepted that the medical position at the time of her dismissal and her appeal was the same. She had been on long term sickness absence. There was no clear period of return nor any indication that the Claimant would be capable of returning within any sort of broad reasonable period. 157. The Third ACAS Certificate was issued on 20th March 2025. 158. The third ET 1 was submitted on 1st April 2025. This ET 1 brought a claim of unfair dismissal regarding the Claimant’s dismissal and her appeal against that dismissal. 159. The third ET 1 also referenced complaints, including explicit regulatory complaints regarding Sainsbury’s conduct of the litigation, including disclosure. The SRA is referenced. The Claimant gave no positive evidence on this to the Tribunal. What we do have in the bundle of documents is an email of the 23rd January 2025 from the claimant to Sainsbury’s [pg 557] and a complaint to the Tribunal on the 27th January 2025 [pg 184]. 160. This correspondence is not easy to follow. It is alleging fraud on the part of Sainsbury’s and its legal team. The correspondence contains hyperbole and assertion. Essentially, the Claimant is saying that things appear to be missing from the bundle or that what is being included in the bundle is fake. The Law 161. As to the complaints of discrimination, we must ensure that we only consider the complaints that are before us: Chapman v Simon [1994] IRLR 124. 162. However, in considering the complaints that are before us, we must look at all relevant facts found and then apply the language of the statute. This includes permitting the Tribunal to look at and consider relevant background evidence. 163. It is understood that discrimination is rarely overt. It can be subtle and fact sensitive. Evidence of discrimination may come from a range of sources but often depends on inferences being drawn from facts found. Recognising the difficulty that exists in proving discrimination, s.136 of the Equality Act provides for a specific application of the burden of proof. 164. Section 136 Equality Act 2010 provides: (1) This section applies to any proceedings relating to a contravention of this Act. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 27 (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. But subsection (2) does not apply if A shows that A did not contravene the provision. 165. Section 136 provides for a two stage process for determining whether the burden shifts to the employer. It is not obligatory for Tribunals to resort to the burden of proof and in appropriate cases, the Tribunal can ask ‘the reason why’ the treatment occurred. Where there is room for doubt as to the facts necessary to establish discrimination, the burden of proof provision is of particular assistance. In contrast, where the Tribunal is in a position to make positive findings on the evidence, there is little to be gained by returning to the burden of proof: Hewage v Grampian Health Board [2012] ICR 1054. 166. Where the burden of proof provisions are applied, the longstanding authority is that of Madarassy v Nomura International PLC [2007] ICR 867 following on from Igen v Wong [2005] ICR 931. Mere difference in treatment is not ‘without more’ sufficient to reverse the burden of proof. However, the ‘more’ is not required in and of itself to be something substantial. 167. The mere existence of unreasonable behaviour does not in and of itself lead to an inference of discrimination. At the same time, the fact that conduct is unreasonable does not mean that it cannot be discriminatory. c.f. Bahl v The Law Society & Others [2004] IRLR 799 168. Section 26 Equality Act 2010 provides (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 169. Section 26 further provides: (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— Case No. 2410963/2023, 2402896/2024 & 2401955/2025 28 (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 170. In Richmond Pharmacology v Dhaliwal [2009] IRLR 336 Underhill J (as he then was) considered the threshold for harassment. He noted: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.” (para 22) 171. It is not suggested that a proposition of law exists that intent is irrelevant. Rather, the statutory language must be applied carefully. 172. Underhill J continued: “While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” (Para 22) 173. Further context was provided by the Court of Appeal in Grant v HM Land Registry [2011] IRLR 748 in which the following passage from Dhaliwal was submitted by the Equality and Human Rights Commission (intervening) to be in error as conflating purpose and effect: “One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.” 174. The Court of Appeal rejected this: “I do not agree. When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” (para 13 per Elias LJ) Case No. 2410963/2023, 2402896/2024 & 2401955/2025 29 175. A single isolated incident can be an act of harassment and that there is no obligation for there to be more than one act for it to amount to harassment. Again, context is essential and the wording of the statute must be applied. 176. Section 27 of the Equality Act 2010 provides: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. 177. The duty to make reasonable adjustments is provided for within sections 20 & 21 of the Equality Act 2010. For reasons of brevity, we do not repeat them in full. However, we do summarise the position as follows: a. There must be a provision criterion or practice. (PCP) b. The Respondent must apply or would apply that PCP to the Claimant c. That PCP must place the Claimant at a substantial disadvantage in comparison with persons who are not disabled d. The Respondent must have failed to take such steps as were reasonable to avoid that disadvantage. 178. It is a requirement that the employer is aware or could reasonably be expected to be aware that the Claimant was placed at a substantial disadvantage in order for the duty to make reasonable adjustments to be triggered. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 30 179. In respect of what amounts to a PCP, reliance is placed on Ishola Transport for London [2020] ICR 1204 and the Judgment of Simler LJ as she then was. “The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the statutory code of practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words “act” or “decision” in addition or instead. As a matter of ordinary language, I find it difficult to see what the word “practice” adds to the words if all one-off decisions and acts necessarily qualify as PCPs… If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice”. It is just done; and the words “in practice” add nothing.” (para 35) 180. She continued: “The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers … but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course … that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.” (Para Case No. 2410963/2023, 2402896/2024 & 2401955/2025 31 36) 181. In respect of s.15 Equality Act 2010, the leading authority is that of City of York Council v Grosset [2018] EWCA Civ 1105. The Council was liable for the unfavourable treatment even though it was unaware of the ‘something arising’. 182. As to ‘unfavourable’ we direct ourselves in accordance with the Judgment of the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 in that the Tribunal must identify the relevant treatment and then identity whether it was unfavourable to the Claimant. 183. In a claim under s.15 Equality Act 2010, the Claimant must prove that the Respondent has treated them unfavourably. They must also prove that the unfavourable treatment was because of something arising in consequence of their disability. If these points are established, then the Respondent bears the burden of proof to prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim. 184. In respect of justification, the burden of proof is on the Respondent. 185. In DL Insurance Services Ltd v O’Connor (2017) UKEAT/0230/17 the EAT considered the factors that applied in a situation whereby an employer was seeking to justify the imposition of a warning for absence. The focus is not on procedural failings but rather on the identification of the legitimate aim and whether the warning is a proportionate means of achieving that. 186. As to the language of warnings being used in an absence situation, this has been commented upon at Court of Appeal level. In Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 the Judgment of Elias LJ contained the following obiter statement: In this context I would observe that it is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature. This suggests that the employee has in some sense been culpable. That is manifestly not the situation here, and will generally not be the case, at least where the absence is genuine, as no doubt it usually will be. But an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee’s absences any longer. There is nothing unreasonable, it seems to me, in the employer being entitled Case No. 2410963/2023, 2402896/2024 & 2401955/2025 32 to have regard to the whole of the employee’s absence record when making that decision. As I mention below, the fact that some of the absence is disability-related is still highly relevant to the question whether disciplinary action is appropriate. 187. As to what is meant by ‘related to’ the Tribunal was referred to Unite the Union v Nailard [2018] EWCA Civ 1203 [2019] ICR 28 in which a broader submission that a failure to investigate an allegation of sexual harassment was rejected by the Court of Appeal in favour of a construction in which there is some form of discriminatory basis (para 98). However, this does not mean that there must be a ‘mental element’ – see the Judgment of the EAT in Carozzi v University of Hertfordshire and Another [2024] EAT 169. Something can be unknowingly discriminatory and still be ‘related to’. 188. In relation to unfair dismissal, the burden of proof is on the Respondent to prove the reason for dismissal. If the Respondent proves that they acted for a potentially fair reason, then the Tribunal must move on to consider reasonableness as provided for in s.98(4) Employment Rights Act 1996. Neither party bears the burden of proof in respect of s.98(4). Whilst this is not a conduct case, the concept of reasonableness still defines reasonable as ‘the range of reasonable responses’. It is not our role to substitute our view as to reasonableness for that of the employer. Rather, we must consider whether the actions of the Respondent were within the range of reasonable decisions open to the Respondent in the circumstances. Points such as the fairness of the process, whether it was pre-judged or other factors all come to fall under this. Conclusions 189. Before turning to the specific claims, we make some broad observations as to the case that was before us. 190. There are a number of strands to the Claimant’s case. One of those strands relates to the treatment that she says that she received and that there was an intent on behalf of those to act negatively towards her. On this point, our findings are nuanced. Regretfully, it is our experience that on some occasions, a Claimant comes before the Tribunal, making wide ranging allegations and upon proper consideration, there is no basis whatsoever for the allegations made. This is not such a case. There was clearly poor management of the Claimant, which the Respondent has sought to minimise in this litigation. This in turn influenced the Claimant’s perception of the Respondent and its employees which in turn has led to the Claimant making serious allegations about the Respondent and its employees. Some of those allegations have Case No. 2410963/2023, 2402896/2024 & 2401955/2025 33 kernel of truth. However, it is also clear that in making allegations the Claimant has gone much further than is reasonable. 191. We are also critical of the Claimant for recording her work colleagues on multiple occasions without their knowledge or consent. We consider that this should only happen in extreme situations and is not consistent with the implied term of mutual trust and confidence. 192. As to relevance, these recordings have added limited value to this case. We understand and accept the Claimants submission that she provided these recordings and transcripts to the Respondents solicitors a year ago. Her assertion that the first she knew that there was an issue over the accuracy of the transcripts was shortly before the trial was due to commence has not been contradicted. At the same time, based on the recordings that we have heard, our reading of the transcripts that we have been taken to the transcripts are clearly not transcripts upon which a fact finding Tribunal can place reliance. Matters are editorialised, omitted and on occasion inaccurate. 193. Both sides bear some responsibility for this sorry state of affairs. That is to say - the Respondent (for some of its conduct towards the Claimant) and the Claimant, because she is responsible for the allegations that she chooses to make bear some responsibility for this. In many of the situation where we have found an allegation not proven, it is because there is a more straightforward, obvious explanation for what happened which is the finding of fact that has been made. Whilst we criticise the Claimant for making so many, wide ranging allegations in this litigation, which has inevitably increased the length of the list of issues and in turn this Judgment, we also recognise that it can be legitimately said that the Respondent is in part responsible for the state of affairs. 194. Having heard all of the evidence in this case, our core regret as a panel is that the poor initial management of the Claimants disability and the Claimants increasingly strong views led to a situation whereby people were just talking at each other. Neither side was really listening to the other. It is telling that Mr Coulson and Mr Butters who were not part of the Claimant’s store and had a degree of objectivity, could see both the evolution of the problem and how there was genuine, sensible feedback as to how the situation could have been handled differently. 195. Mr Sumner and Ms Byrne were suspicious of the Claimant, they were defensive and sometimes frustrated. This stems from the fact that the Claimant had an accident at work. We do not consider that they managed this situation well. If there is a basis for suspecting the Claimant, then that would be a matter for more senior managers than Team Leaders at Sainsbury’s to deal with. The situation from there on in was not managed well by Ms Blackett who had overall Case No. 2410963/2023, 2402896/2024 & 2401955/2025 34 responsibility as Store Manager, Ms Marchant whose management of the WRAP process has been a factor in the difficulties experienced by the Claimant, Mr Sumner and Ms Byrne as to the position on the shop floor. At the same time, we accept that both Mr Sumner and Ms Byrne had an approach in so far as the Claimant was concerned of ‘do what you can’ or words to that effect. 196. Having referred to the recordings made by the Claimant above and our criticisms of them, it is essential that we should also record that she has been unfailingly polite before us and respectful to the Tribunal. Her conduct in the hearing room has been exemplary and has helped us as a Tribunal. In terms of the Respondent, we would like to place on record our thanks to Counsel who has been of significant assistance in discharging his duties to the Tribunal whilst also representing his lay client to the fullest. Section 15 Equality Act 2010 197. There are four allegations of unfavourable treatment. 198. Paragraph 36 of the amended grounds of resistance is a broad denial of treating the Claimant unfavourably because of something arising in consequence of disability. We are critical of this pleading. Where a warning is given for disability related absence, we would expect a professional pleading to straightforwardly accept this and move on to justification. Creditably, the Respondents written submissions accept in plain terms the unfavourable treatment and the something arising on this point. 199. The disciplinary hearing and the disciplinary appeal outcomes were plainly unfavourable treatment. The cause of these warnings was the Claimant’s absence from work. The Claimant’s absence from work was related to her disability. The key issue in respect of 2.1.1 and 2.1.2 is whether or not the unfavourable treatment was a proportionate means of achieving a legitimate aim. 200. The legitimate aims pleaded in the amended grounds of resistance (para 37) are: a. Following the Respondents policies and procedures b. The appropriate management of the Claimant’s absence records c. Ensuring steps were taken with the aim of improving her workplace attendance. 201. When considering justification, we remind ourselves that the Respondent bears the burden of proof to prove justification. We further remind ourselves that this test is distinct from the range of reasonable responses. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 35 202. The first two pleaded legitimate aims are somewhat broad in nature. The first aim is to follow the Respondents policies and procedures. It is not pleaded what policy is being referred to or why that is a legitimate aim for the purposes of a warning. It is not pleaded that the Claimant has breached a policy. The written policy does not require a warning. 203. The second pleaded legitimate aim is the appropriate management of the Claimant’s absence records. The reference to ‘records’ in this context of giving a warning is puzzling. A more charitable interpretation would be ‘appropriate management of the Claimant’s absence’. Appropriate management of absence is a legitimate aim. 204. We consider that it is plainly a legitimate aim to ensure that steps are taken with the aim of improving the Claimant’s workplace attendance. 205. The factual situation is that we do not consider that there was more that the Claimant could have done at this stage to improve her attendance. 206. The Respondent points to the fact that the Claimant was working for John Lewis. We accept the Claimant’s evidence that this was a sedentary role that she could do in the most comfortable position, including lying on her bed. 207. The medical situation was that when the Claimant was off work, she was not fit for work. There were no additional steps the Claimant could take to make her fit for work. 208. The tills are to a certain degree a red herring. For a significant proportion of the shift the tills were not open. The Claimant was not under a duty to alter her contractual hours. The petrol station was open for around an hour longer. As of the point of the warning, we find that the Claimant was prepared to work in the petrol station in so far as it was open and that the implications of this were not sufficiently considered or discussed. 209. The Respondent cites incorrect physio advice [pg 356] as being the cited reason for the recovery being put back. That page references the wrong physio advice, but the conclusion that this was the cause of the length of the disability isn’t made out on the note or in fact. In any event, Ms Hindle should be proceeding on the basis of the best and correct medical information. The basic position is that the Claimant has injured her knee, she has not been malingering, her absence was genuine and not avoidable. The Respondent is entitled to manage that absence, what it has not proven is why a disciplinary warning was a proportionate means of achieving a legitimate aim. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 36 210. We therefore do not consider the issuing of the warning by Ms Hindle to be a proportionate means of achieving a legitimate aim. It does not achieve nor is it likely to achieve the legitimate aim of improving the Claimant’s workplace attendance. 211. As to appropriately managing the Claimant’s absence, we do not find that the issuing of a disciplinary warning was a proportionate means of achieving that aim. 212. In relation to the first aim of following the Respondents policies and procedures, if this was a legitimate aim then it too fails as not being a proportionate means of achieving that aim. The warning is not a procedural obligation under the policy. If the Respondent did not issue a warning, it would still be following its policies and procedures. 213. If the first two aims were to amount to legitimate aims, then we do not consider the issuing of a disciplinary warning to be a proportionate means of achieving them. 214. In the appeal decision letter, we do note the reference to the Claimant not being given a warning previously in December 2022. No specific evidence was called by the Respondent on this point nor was this document regarding ‘Becca’ evidenced before us. We do not consider that our conclusion is altered as to the lack of proportionality of the warning. 215. We therefore do not consider Ms Sleyyums upholding of the first written warning to be a proportionate means of achieving a legitimate aim. 216. This was a situation in which there were significant problems with both Ms Hindle and Ms Sleyyum’s evidence before the Tribunal. This has caused the Respondent problems evidentially, but it is important that this is not taken too far. It is possible for an employer to provide an ex post facto justification for unfavourable treatment. It does not even need to be in the decision makers contemplation at the time. These problems with the witness evidence do not mean that the justification defence must automatically fail. The problems with the Respondents case on these points was much wider. 217. No time limit point arises on either claim. 218. This is very much a conclusion on these specific facts. An employer is entitled to manage an employee's absence and we do not suggest otherwise. Here, the issue is the issuing of a disciplinary warning for absence in circumstances whereby the employee cannot take any meaningful steps to improve their attendance. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 37 219. The language of ‘warning’ here goes further than the warning that was envisaged in Griffiths as cited above. In the present case, the warning is disciplinary in nature as opposed to Elias LJ’s comment about the use of warning implying that it might be disciplinary when it is not. We do not decide the s.15 Equality Act claim based on the use of language, but we do note that there is positive choice by Sainsbury’s to continue to use disciplinary warnings in respect of absence in circumstances whereby the use of such warnings in the modern workplace has been questioned. The exceptionally experienced panel with many decades combined experience hearing this case, in effect as the industrial jury considered that this approach was open to criticism. 220. Issue 2.1.3 is that during the disciplinary hearing on 9th August 2023, the Disciplinary Hearing manager Maureen Hindle told the claimant that the warning she had received was an opportunity to improve attendance. Issue 2.1.4. is the describing of the comment by Ms Hindle as “appropriate” in the appeal letter written by Ms Sleyyum. 221. The Respondents submission on both of these linked points is that this is one phrase. It does not fall within the meaning of ‘unfavourable’. It submits that ‘unfavourable’ must place a party at a disadvantage. 222. The Respondent further submits that the intention of Parliament was for such matters to be litigated through the harassment regime. On this latter point, whilst it has some attractiveness, we would note that our role in terms of the Equality Act is to apply the statutory language. There is no particular ambiguity in the statutory wording that would require us to apply the wording in a way that goes beyond the plain meaning of the text. We would note in particular that discerning the purpose of the harassment regime in this way would be fraught with difficulty. We are aware of examples whereby claims have been dismissed as harassment because of the statutory language of s.26 and the threshold for establishing harassment but still have been found to be an act of direct discrimination under s.13 whereby the conduct may not meet the harassment test but is nonetheless sufficient to amount to a detriment. 223. We accept that the use of a word is capable of being unfavourable. We do not accept that it was unfavourable to the Claimant on these facts. The language used by the Claimant in her appeal letter is the height of her evidence on the point. We do not accept that the words in and of themselves affected or disadvantaged the Claimant. 224. In so far as it is something that does not make sense on the facts and therefore should not be said or is part of the reasoning for the warning and hurt the Claimant and is unfavourable in that sense, we consider this to be tied up Case No. 2410963/2023, 2402896/2024 & 2401955/2025 38 with our findings in respect of the final warning and appeal and already covered by our findings in respect of the final warning and appeal. 225. It follows that the Claimant’s claims of discrimination arising in consequence of disability succeed in respect of the first warning and the appeal (issues 2.1.1 and 2.1.2) and are dismissed in respect of 2.1.3. and 2.1.4. Reasonable Adjustments 226. We remind ourselves that a reasonable adjustments claim is not about whether or not the Respondent failed to consider adjustments or whether it has generally behaved unreasonably. It is about the specific wording of the statute and considering each stage. 227. The first PCP relied upon is ‘A requirement for employees to take breaks at certain times at the line managers request’. We note the wording of the PCP uses the word ‘request’ which is a word that is distinct from ‘required’. We have found that on the facts that the height of the evidence was that on the night shift, the taking of breaks was a loose, flexible arrangement that was a mixture of employee request, manager request taking into account the employees wishes and also the needs of the shift at any time. We consider that this is capable of amounting to a PCP, albeit it is at risk of being somewhat nebulous. 228. However, we do not find that the PCP placed the Claimant at a substantial disadvantage in comparison to a non-disabled person. It was plainly a loose arrangement, and it has not been shown that the Claimant was disadvantaged by the taking of her breaks. We have not found an occasion whereby the Claimant was refused a break or otherwise wanted to take a break but could not. In terms of more generally, the arrangement was sufficiently loose so as to accommodate her needs. 229. If we were wrong in that conclusion and that the Claimant was at a substantial disadvantage, then we find that the arrangements in place were already sufficiently flexible so as to amount to a reasonable adjustment. 230. The second PCP is “A requirement to bend down and pick up stock at low levels.” We find that this plainly does amount to a PCP that the Respondent had in place and would apply to other members of staff. It is part of the role of replenishing stock in a store, whether it is bending down and taking stock off a trolley or bending down and taking stock off the floor, which is known as ‘spotting’. 231. This PCP placed the Claimant at a substantial disadvantage in comparison to persons who are not disabled. The Claimant’s knee was unable to or had great difficulty in bending. She either could not do it or would be in Case No. 2410963/2023, 2402896/2024 & 2401955/2025 39 significant pain if she did do it. The Respondent was aware that the Claimant had significant difficulty in bending down and picking up stock. 232. The key issue in respect of these reasonable adjustments claim is whether there were reasonable adjustments that the Respondent failed to make. 233. The adjustments in the list of issues that the Claimant relies upon for this PCP are 3.6.2 and 3.6.3. 234. The contradiction here stems from the poor communication. We accept that the general instruction to the Claimant, however specifically phrased was along the lines of ‘do what you can’. We also accept that the Claimant would be presented with work, such as cages in which items were not stacked in a way that would enable her to do all of her work. 235. We consider there was poor management, we consider there was poor communication but we consider that the instruction to do what you can was a genuine instruction and represented the correct position. The Claimant was not obliged to do work that she could not and did not face disciplinary consequences. 236. We note that the WRAPS improve with the February 2024 WRAP. We also consider that this accords with Mr Sumner’s evidence that there was some improvement in tensions ‘towards the end’. 237. Adjustment 3.6.2 - we find that the claimant was instructed to work on aisles with lighter products. That element of the adjustment proposed was already made. The outstanding point of contention is the cereal aisle. There is evidence in the bundle of the Claimant being instructed to work the cereal aisle. The distinction is whether or not this meant the Claimant was being required to do all cereal or only the cereal that she could. We have made findings of fact on this above. 238. We note that the Feb 2024 WRAP does not suggest that the Claimant is capable of working cereal [pg 529] at this point in time. It specifically lists the aisles to work. 239. We consider that the instruction ‘to do what you can’ meant that the Claimant was not instructed to do cereals that she could not and therefore the Respondent had a reasonable adjustment in providing the Claimant with lighter duties. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 40 240. Adjustment 3.6.3 does not succeed. By instructing the Claimant to do what she can, the Respondent had made a reasonable adjustment. The Claimant was not instructed to perform tasks that required prolonged or excessive walking or required her to bend down. 241. The claims in respect of a failure to make reasonable adjustments are dismissed. Harassment Related to Disability – s26 Equality Act 2010 242. Regrettably, the list of issues was not in date order. We shall consider the list of issues relating to harassment chronologically as we have sought to make our findings of fact in chronological order and a chronological approach allows the nature of the relationship between the Claimant and the Respondent to be considered. It is also the clearest and most structured way to consider causation between a protected act and a detriment. 243. Issue 4.1.9 - On 25th August 2023 – it is alleged that Julia Blackett refused to investigate the Claimant’s car vandalism. We have found that some damage occurred to the Claimants vehicle and we have discussed our approach to the absence of Ms Blackett in these proceedings. Whilst the lack of an investigation may be unwanted conduct, we do not find that it was related to disability. No real positive evidence linking the lack of action by Ms Blackett back to disability has been advanced. This claim is dismissed. 244. Issue 4.1.6 - On 20th October 2023. We do not see how this can be an act of harassment. The point is that Ruth Marchant acknowledged the existence of a previous complaint. That is not unwanted conduct, it has not been explained how it is unwanted conduct related to a disability nor has it been shown that it has the proscribed effect as required by s.26. This claim is dismissed. 245. Issue 4.1.1 - On 27th September 2023 it is alleged that Ms Byrne left the Claimant outside in a storm and ignored the Claimant’s calls to return to the store. In light of our findings above, this is plainly not an act of harassment. The unwanted conduct alleged, i.e. the deliberate locking out of the Claimant in the storm did not occur. What did occur is a different factual scenario. We accept that the Claimant being locked out of the store unintentionally whilst there is a storm on is something that would be unwanted by her, but there is nothing in what we have found that relates what did happen to the Claimant’s disability. The need for the unwanted conduct to be related to disability is an essential part of the test for harassment and this claim must be dismissed. 246. We do consider the situation to have been inadequate management. We recognise that we have the benefit of hindsight and that no one should be Case No. 2410963/2023, 2402896/2024 & 2401955/2025 41 held to a standard of perfection, but even allowing for that, some more thought should have been given to this. Even in evidence before us, the Respondents evidence focused on the perceived failings of the Claimant rather than the lack of prior thought as to what the arrangements for the Claimant were in a situation where the store would be locked. There was little if any thought given to how the Claimant would access the store or the effect of the absence line being on charge in a different room for a number of hours on charge. We do not regard the position of there being an expectation that someone would know to call the store when it is closed and still be able to speak to someone to be a reasonable one, particularly given the fact that the Claimant had used the absence line number which she had been given. We can be somewhat critical of the Respondent for this incident, but it is not harassment. We note that because the Claimant framed this allegation as a deliberate act by Ms Byrne, she did not pursue this matter under either s.15 Equality Act or as a failure to make a reasonable adjustment. 247. Issue 4.1.2 - On 15th November 2023 – we have already found on the facts that there was not a failure to make reasonable adjustments. No wider conduct beyond that alleged failure is alleged in this issue. This claim is dismissed. 248. Issue 4.1.3 - On 29th November 2023 - we have already found on the facts that there was not a failure to make reasonable adjustments. No wider conduct beyond that alleged failure is alleged in this issue. This claim is dismissed. 249. Issue 4.1.8 - On 28th December 2023 – The email is at pg 503. It is not replied to. The Respondent asks the Tribunal to place reliance on the decision of Mr Coulson that this was not intentional, though of course the conclusion on this is a matter for us. We consider that this was poor management and unreasonable for the Claimant to not get a reply. It was unwanted conduct. 250. The Respondent relies upon Nailard and submits that it is not sufficient for the conduct to arise against a background of disability or touch on the issue of disability. 251. In the present case, the alleged discriminator is someone who has not given live evidence before us. Whilst we have declined to draw adverse inferences from that specific decision not to call the witness, we must still determine the mental processes. 252. In Nailard the failure was to properly investigate an allegation of sex harassment. The failure to consider the mental processes caused the remission. The mere fact of the failure to investigate was not sufficient. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 42 253. On the facts that we have before us; we have considered the interview notes [pg 1229] the explanation given is that the email was missed. 254. In the circumstances and making a decision on the balance of probabilities it is possible that an email, including an important one can be missed by a busy manager. We do not see what Ms Blackett if she was motivated by something inappropriate would hope to achieve by ignoring such a formal and clearly important piece of correspondence. All she would achieve is more difficulties, more scrutiny and more criticism. Not dealing with the email would always result in the Claimant taking further action. Therefore, this is not related to disability and the claim is dismissed. 255. Issue 4.1.4 - On 10th January 2024- we have already found on the facts that there was not a failure to make reasonable adjustments. However, this allegation includes an allegation of hostility. The pleaded case contains detail as to what is meant by hostility. Both the Claimant and Ms Byrne have problems regarding their credibility and their recollection of events. The Claimant has not proven the words that she attributes to Ms Byrne. 256. Issue 4.1.7 - On 10th January 2024 – the words ‘lifestyle and not your health’ was used. Ruth Marchants evidence was that accepts that she did refer to it but does not recall doing so. In cross examination, her answer was that she does recall the meeting but that she put an end to it as both she and the Claimant were talking at each other and getting nowhere. The surrounding facts are that Ruth Marchant perceived the Claimant as prioritising external factors outside of Sainsbury’s over her Sainsbury’s role. This was an argument with competing views. It was unwanted conduct but it was not related to the Claimants disability. Indeed, the comment was pointing to factors which are external to the Claimant’s disability. If we are wrong on ‘related to’ then we do not consider that the words used had the proscribed effect as set out in s.26. Two people disagreeing in circumstances where they are putting competing contentions to the other does not meet the threshold for harassment. To so find would place the threshold far too low. The fact it is an argument with competing contentions doesn’t in and of itself mean it can’t be harassment, but the statement made was not of a nature that would be self-evidently harassing and therefore the context as to why it does not fall within s.26 is important. 257. Issue 4.1.5 - On 1st March 2024 - we have already found on the facts that there was not a failure to make reasonable adjustments. However, this allegation includes an allegation of hostility. We are left to infer what the hostility is. The pleaded hostility is asking the Claimant about where she was going. We do not find this to be related to the Claimants disability; this was a necessary interaction by a manager managing one of their staff. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 43 258. Issue 4.1.10 - On 8th May 2024 – it is alleged that Mr Sumner was hostile with the Claimant on the shop floor after her appeal meeting with Mr Butters. The Tribunal has heard limited evidence on this point. Mr Butters denies mentioning it to Mr Sumner and we consider Mr Butters to be a credible witness on this point, particularly given the findings he was prepared to make that were adverse to Sainsbury’s. It is for the Claimant to provide the detail and prove the fact of the allegation. The fact of Mr Sumner being hostile on this occasion has not been established, nor has any causation been established between a protected characteristic and this event. We do not uphold this allegation. Victimisation 259. The Respondent accepted in its amended grounds of resistance that the following amounted to protected acts: a. Issue 5.1.2 - Commencing ACAS Early Conciliation on the 31st August 2023 b. Issue 5.1.13 - Submitting an ET 1 in October 2023 c. Issue 5.1.14 - Submitting an ET 1 in May 2024 d. Issue 5.1.17 (this is numbered twice and therefore should be 5.1.18) - Lodging Tribunal claims – though it is not clear why this is distinct from the protected acts already noted above. 260. This concession is plainly too restrictive and we consider the majority of the potential protected acts to be to be protected acts. A protected act is widely defined within s.27 Equality Act 2010. The Claimant was repeatedly asserting her rights under the Equality Act 2010. 261. The broadest and most favourable interpretation of the Claimant’s case is proceeding on the basis that the detriments occurred because of the weight of the protected acts rather than specific evidence linking one act to one detriment. The Claimant has not sought to persuade us that a particular protected act stands out as being particularly causative of a particular detriment. 262. In making the findings that we do, we have considered each matter individually, that is to say as an individual claim, but we have also considered the question of totality. That is to say we have considered whether the combined or cumulative effect of the matters that were protected acts led to a detriment. 263. We have also given particular thought as to the relevance of our findings on the extent to which there were problems between the Claimant and Mr Sumner and Ms Byrne. We have also considered the relevance of the extent to Case No. 2410963/2023, 2402896/2024 & 2401955/2025 44 which the initial approach of the Respondent was to minimise these concerns. Our general view is that the Claimant was not being targeted whether consciously or subconsciously. Rather, there was poor management in circumstances, with individuals, both the Claimant and those managing her not effectively communicating with each other. 264. Issue 5.2.1 - is an allegation that on the 1st September 2023, Mr Sumner ignored the Claimant’s reasonable adjustment plan. We have already made findings regarding reasonable adjustments and have not found the Respondent in breach of the duty to make reasonable adjustments. However, we would also record that the very first protected acts relied upon are the Claimant speaking to Ruth Marchant on the 31st August 2023 and the Claimant contacting ACAS on the same day. A further conversation with Ms Marchant on the 1st September 2023 is also relied upon. These are the only matters that pre-date or have the same date of the 1st September 2023. There is no evidence before the Tribunal that on the 1st September 2023 Mr Sumner was aware of any of these three potential protected acts. This claim must be dismissed. 265. Issue 5.2.2. - We have made findings of fact that Ms Byrne did speak regarding the Claimant to Brandon and Morgan. What was said does amount to a detriment. To have your manager speak negatively about you to a work colleague is detrimental to you. 266. The issue here is causation. The vast majority of protected acts are after September 2023 with only a small number being prior to this. 267. The evidence before us was that the lack of trust between the Claimant and Ms Byrne pre-dated the protected acts relied upon. For example, we find that there were problems as far back as 2022. Ms Byrne’s wariness of the Claimant stemmed from the Claimant’s accident. The Claimant has not proven that Ms Byrne was aware of any of the listed protected acts by this unspecified date in September 2023. 268. Therefore, this claim fails on causation and is dismissed. 269. On this particular issue, although we have dismissed this claim as victimisation, because of causation, we wish to be clear that the Claimant was entitled to be managed by a manager who did not have suspicions about her or consider that she needed to be defensive. We do not consider the behaviour or the actions of Ms Byrne to have been acceptable. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 45 270. Issue 5.2.3. - for the reasons already given, this detriment is not proven on the facts. The Claimant was not locked out by Ms Byrne. The distinction that we draw is that we think it is more likely than not that Ms Byrne would express her frustrations verbally about the Claimant to others in a way that she should not but we do not consider for the reasons we have already given that it is more likely than not that she would go to the extreme step of positively and deliberately prevent the Claimant from entering the store. 271. Issue 5.2.4 - This appears to cover more than one point. In relation to Ruth Marchant expressing concern regarding whether it was operationally viable for the Claimant to work on the shop floor, we do not consider this to amount to a detriment. There was a legitimate question over the extent to which the Claimant was fit to work on the shop floor. By October 2023, the Claimant was using a walking stick all of the time whilst at work in a job that was essentially manual labour. It is essential that employers and employees can have open, sensible discussions regarding such matters. Ruth Marchant was entitled to ask about and consider the extent to which the Claimant was able to fulfil her role. An open conversation about such matters goes beyond mere tick boxing and OH advice. It is not detrimental for that conversation to take place. 272. The next part relates to the conduct of Mr Sumner and Ms Byrne after the meeting. We do not find that the Claimant was assigned inappropriate tasks or that reasonable adjustments were not made. With regard to the allegation of hostility we do not accept that this occurred after this meeting. 273. Issues 5.2.5, 5.2.6 are not established as detriments for reasons already given in relation to the reasonable adjustments claim. 274. Issue 5.2.7. - We have already made findings in relation to the failure of Julia Blackett, failing to reply to the email. It has not been shown that the cause of this was a protected act. 275. Issue 5.2.8 - this detriment has not been established on the facts, but even if it had been, causation has not been established. The detriment is somewhat nebulous. We recognise that we have found that there were problems in this relationship but both parties were responsible for this, caused by non discriminatory factors such as a failure to communicate effectively or to see a situation from the other persons perspective and it is not causatively linked to a protected act. 276. Therefore, all the claims of victimisation are dismissed. Has the Claimant Conceded the Reason for Dismissal? Case No. 2410963/2023, 2402896/2024 & 2401955/2025 46 277. In submissions, the Respondent submitted, having read the Claimant’s written submissions, it appeared that there was a concession that the dismissal was for reason of capability. 278. The words used by the Claimant do appear to concede this point. At the same time, the written submissions also refer to the whistleblowing claim. Read in the round, the submissions are contradictory. 279. Recognising that the Claimant is unrepresented, we consider that the most appropriate course of action given that we have heard all the evidence, in circumstances whereby the claims appear to be maintained notwithstanding an apparent concession, is to go on to consider the evidence as we otherwise would have done had the ambiguity not arisen. Automatically Unfair Dismissal – s.103A Employment Rights Act 1996 & The Reason for Dismissal for Ordinary Unfair Dismissal 280. The Claimant asserts that her dismissal was automatically unfair in that the reason or principal reason for the dismissal was the fact that she made a protected disclosure. 281. The protected disclosure relied upon is the correspondence of the 23rd and the 27th January alleging fraud. 282. We consider that much of that correspondence can be said to be hyperbole and accusation and not a disclosure of information. 283. However, parts of the correspondence do refer to the Respondent not meeting its legal obligations to disclose documents and it states what those documents are. That is a disclosure of information. 284. That disclosure of information relates to a legal obligation. I.e. the duty to disclose documents. 285. It is in the public interest that a party meets its disclosure obligations in litigation. 286. Applying the mixed subjective/objective test derived from Babula v Waltham Forest College [2007] ICR 1026, we would find that much of that correspondence does not meet the second limb of the test, namely that it is objectively reasonable to believe that there was fraud or similar serious wrongdoing. 287. However, taking the ‘lower level’ assertion of simply not complying with disclosure duties then that is capable of meeting both limbs of the Babula test. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 47 288. Therefore, there is a public interest disclosure, albeit more limited than is suggested. 289. We now must determine whether the reason or principal reason for the Claimants dismissal was that protected disclosure. 290. Our finding is that no connection between the disclosure relied upon and the dismissal. The Claimant advanced little express evidence before the Tribunal in support of this assertion. 291. We note for example that some of the evidence of pre-Judgment relied upon by the Claimant (e.g. the employee relations entry of the 28th October 2024) predates the protected disclosure relied upon. We deal with that as part of our consideration under s.98(4) below. 292. Although the case was not expressly run on this basis, we have considered whether this was a Jhuti v Royal Mail Group [2019] UKSC 55 type situation either. Such a contention could be inferred from the Claimant’s cross-examination and submissions regarding the influences of others on the decision of Mr Anderson, albeit that contention is based in part on matters pre-disclosure. 293. The set of facts (c.f. Abernethy v Mott Hay and Anderson [1974] IRLR 323) known to Mr Anderson, which was the set of facts also known on appeal was the length of the Claimant’s long term ill health absence and the lack of any meaningful prognosis or timeframe to return. These were the core facts that led to the dismissal. That is a set of facts/state of affairs that was objectively true and not influenced by any protected disclosure. 294. We do not consider this to be a dismissal where the reason or principal reason for the dismissal is a protected disclosure as provided for by s.103A ERA 1996; however causation is put. 295. Rather, the Respondent has proven that the reason for dismissal was capability. Capability is a potentially fair reason for dismissal. Although this finding is made for the purposes of the ordinary unfair dismissal claim, it is convenient to provide reasons for this determination at this point. 296. We do not assess reasonableness at this stage. Rather, we must consider what was in the mind of the relevant decision makers. 297. The relevant decision makers had capability in mind when taking the decision to dismiss. The reason that the hearings were taking place was the Case No. 2410963/2023, 2402896/2024 & 2401955/2025 48 Claimant’s absence from work and her lack of capability to do the work she was employed to do. 298. The fact that the Respondent was following a capability process is not conclusive of the Tribunal finding that this was the reason for dismissal. 299. We have also considered the assertion of pre-Judgment at this stage and whether it could be something in respect of which would influence our findings in respect of the dismissal. It does not. Victimisation Dismissal 300. We give our reasons in respect of 5.2.9 of the issues at this stage because it relates to the dismissal. The Claimant alleges that the dismissal was because of the protected acts listed. 301. The Claimant has not proven that her dismissal was because of one or more of her protected acts. 302. The reason for the Claimant’s dismissal was the level of her absence and the lack of a clear return period. We are clear that this was the basis for the dismissal of the Claimant by Mr Anderson. 303. Neither Mr Anderson nor Mr Thackeray were in any way influenced by any of the protected acts. We consider them to be separate and removed from the points of criticism we have made elsewhere in this Judgment. 304. There is no link either conscious or sub consciously between the protected acts and the dismissal. Unfair Dismissal – s.98(4) Employment Rights Act 1996 305. Having found that the reason for dismissal was capability, we now move on to consider reasonableness as provided for in s.98(4) ERA 1996. 306. We proceed on the factual assumption that the underlying knee injury was as a result of a workplace accident for which the Respondent was the cause. We direct ourselves in accordance with McAdie v Royal Bank of Scotland [2007] EWCA Civ 806 as to the need for the employer to ‘go the extra mile’ in circumstances whereby the employer is the cause of the illness. 307. The Claimant’s case is that the Respondent should have retained her for a period of around 12 months. Her position is that this would not be a cost to the Respondent. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 49 308. We do not accept this submission regarding the 12-month period. That would be significantly beyond what could reasonably be expected of the Respondent. There would be an ongoing cost to the Respondent in the form of holiday pay and the Respondent would be required to allocate continued management time and other resources to the management of the Claimant and her absence. 309. However, particularly taking into account the fact that the Claimant is unrepresented, we do not confine ourselves to this submission. We have actively considered whether there was a shorter, more reasonable period in respect of which the Respondent could be expected to wait before taking the decision to dismiss, whilst reminding ourselves, that the relevant test is whether the decision to dismiss was within the range of reasonable decisions open to the Respondent. 310. Having considered whether the Respondent could reasonably be expected to wait longer, we consider that it was within the range of reasonable decisions open to the Respondent to dismiss the Claimant for capability when it did. The medical evidence at the time was that there was no identified period in respect of which the Claimant could reasonably be expected to return to work. This was a period of long-term sickness without any reasonable period of return. 311. In her oral evidence before us, the Claimant agreed with this medical position. She also agreed that this was the medical position at the time of her appeal and the considerations remained the same. 312. There was no suitable alternative work. Nor was it suggested that there was any suitable alternative work. 313. The Claimant makes additional points, which require serious consideration. She submits that her dismissal was pre-judged. She relies upon the entry on the 28th October 2024 on the HR system. 314. Both Mr Anderson and Mr Thackeray were questioned regarding this. Mr Anderson’s position was that he was not influenced by anyone else. However, his witness evidence was somewhat vague on the wider detail surrounding this point. There were additional conversations with Employee Relations that are not in his witness statement or evidenced in any other way. The contents of those conversations remain vague. 315. Mr Thackeray in particular was an impressive witness on this point. He was unequivocal that he felt completely empowered to allow any appeal against dismissal as he saw fit and had done so in the past. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 50 316. We have considered whether the dismissal was pre-judged. The entry in the HR system is a concern and we have not heard live evidence from the relevant member of staff. 317. s.98(4) ERA 1996 requires us to assess the dismissal as a whole, applying the range of reasonable responses. Having done so, we conclude that the dismissal was fair. 318. In light of our earlier findings, it is also important to record some additional points. Firstly, there is no s.15 Equality Act claim before the Tribunal regarding the dismissal. It is not in the list of issues. This was raised at the outset with the parties and this position was confirmed. 319. Secondly, because of the somewhat unusual factual scenario, we record that we do not find the dismissal to be unfair because of our findings regarding the first written warning. 320. We consider the dismissal to be separate from the first warning. The Claimant was aware that her employment was at risk and the Claimant was aware of the medical position with regards to the lack of a return within a reasonable period. 321. The Claimant has not proven a link between the earlier conduct of employees of the Respondent and the absence that led to her dismissal. The Claimant has a serious knee injury. We have proceeded on the assumption that the knee injury is a workplace injury but beyond that, we must work on the evidence. We note that the April 2024 GP letter which seeks to provide a historical overview post 2022 states “unable to comment on whether the injury being worse now than it originally was as this was not found in her consultations, however her level of pain has increased.”[pg 891] whether this is a quote from the GP or the GP recording the position of another, the link between post accident events at work and the dismissal have not been proven. 322. Finally, in respect of the McAdie point regarding the need to go the extra mile, we find that the Respondent did this. There was no sensible path forward and nothing more could reasonably be expected other than maintaining the Claimant’s employment indefinitely. Such a finding is not sensibly open to the Tribunal. Holiday Pay 323. The Claimant bears the burden of proof to prove the basic facts of her holiday pay claim. However, we also recognise in ET litigation, a claim for Case No. 2410963/2023, 2402896/2024 & 2401955/2025 51 holiday pay or wages can be dependent on the documents disclosed by the Respondent. We have commented on the Respondent’s disclosure on this point above. 324. The position of the Respondent is that the Claimant has been paid her holiday pay in full. Mr Anderson’s witness statement provides a calculation but does not reference a document. 325. There is little positive case advanced by the Claimant beyond the bold suggestion that it is not correct. 326. Notwithstanding our reservations about the lack of cross-referencing in the witness statement of Mr Anderson, on first principles, the Claimant has not discharged her burden of proof to demonstrate that upon termination she was paid less than her entitlement would have been. Therefore, this claim is dismissed. Final Thoughts 327. The role of the Tribunal is to find facts and then apply the law to reach conclusions on the claims that have been made. Taking a step back from this Judgment, it is apparent that whilst we made criticisms of the Respondent, the facts found did not fit within the statutory framework save in relation to two of the s.15 claims. 328. We recognise that this process has been a long one with the first claim submitted in 2023. We would urge the parties to resolve their outstanding disputes and enable everyone to move on with their lives. _____________________________ Employment Judge Anderson 20th May 2026 JUDGMENT SENT TO THE PARTIES ON 8 June 2026 FOR THE TRIBUNAL OFFICE Case No. 2410963/2023, 2402896/2024 & 2401955/2025 52 Notes Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case No. 2410963/2023, 2402896/2024 & 2401955/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms M Teixeira Respondent: Sainsbury’s Supermarkets Limited JUDGMENT 1. The Claimant’s application dated 22nd June 2026 for reconsideration of the Judgment sent to the parties on 8th June 2026 is refused as there is no reasonable prospect of the original Judgment being varied or revoked. REASONS Introduction 1. The Claimant, Ms M Teixeira, applies for reconsideration of the liability Judgment. 2. The final hearing in this matter took place between the 2nd and 18th February 2026 in person in Liverpool. Judgment was given orally on the 18th February 2026 and sent to the parties by the Tribunal on 15th April 2026. Written reasons were then requested and these were sent to the parties by the Tribunal on the 8th June 2026. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 2 3. The remedy hearing took place on the 15th June 2026. Judgment was reserved. I sent the Reserved Remedy Judgment for promulgation the same day. At the time of writing this Reconsideration Judgment, the parties are awaiting the Tribunal promulgating that Judgment. 4. By email dated 22nd June 2026, the Claimant applied for reconsideration. In that application, three categories of documents were referred to but not attached to the application. 5. Upon being referred the application, I directed that the following be sent to the parties: “In order to give Preliminary consideration under Rule 70 to any application for reconsideration, it is necessary for the Employment Judge to see the specific documents that the Claimant is relying upon as the basis for her application. Please can they be sent by return. In asking for the documents, Employment Judge Anderson is making no decision as to their admissibility. He simply considers that if he is to perform the function required under Rule 70, then he should have the relevant documents in front of him when he does so.” 6. This was sent on the 2nd July 2026. Since that time, a significant amount of documents have been sent in, far beyond that which I referred to or envisaged being sent in. I consider this further below. The Application 7. The application for reconsideration seeks to rely upon documents that were disclosed by the Respondent to the Claimant during the course of the liability hearing. The liability Judgment records the disclosure issues that arose during the course of the hearing. 8. The application describes giving the Tribunal “an opportunity to see some evidence that has been withheld by the Respondent from the Tribunal.” The Case No. 2410963/2023, 2402896/2024 & 2401955/2025 3 Claimant refers to para 46 of the liability Judgment where the Tribunal discusses credibility and suggests that the documents may have a bearing on this. Three broad categories of documents are identified. I summarise them below, but it should be noted that I have considered the wording of the reconsideration application in full. 9. The first is an email exchange between Jen Bailey and Mike Coulson. 10. The second set of documents relates to the Stuart Butters investigation. 11. The third is a handwritten document dated the 29th July in which views are expressed opinions on the Claimant’s return to work. 12. The communication sent to the parties on the 2nd July simply asked to see the documents relied upon. Given the three matters referred to in the application for reconsideration, I anticipated a couple of documents being sent. Whilst the documents should have been attached to the original application for reconsideration, having regard to the overriding objective, I thought it appropriate to allow the Claimant the opportunity to send them in prior to my consideration of the application under Rule 70. However, what has been sent is a bundle consisting of electronic numbering of 423 pages, including the index. This document references the Employment Appeal Tribunal. This is far beyond the scope of the application for reconsideration. A further set of documents consisting of 63 pages relating to the circumstances of an individual other than the Claimant have also been sent through. 13. To be clear, it is my role to consider the application for reconsideration dated 22nd June 2026 that was made within the correct time limits and perform the function provided for in Rule 70. In so far as the Claimant also invites me through subsequent correspondence past this date to get involved with matters that are the subject of her appeal, I decline to do so on the basis that a) this is a matter for the EAT b) the document referencing the EAT was submitted post the expiry of the time limit in respect of reconsideration. c) there was no application for an extension of time and I would not extend time given it was possible for the original application to be made within time. d) the scope of Case No. 2410963/2023, 2402896/2024 & 2401955/2025 4 matters referred to is plainly an attempt to reargue the facts of the case and would be refused as an application for reconsideration under Rule 70(2) on that basis as well. 14. I have gone through the index of the documents provided in an attempt to identify the documents that are the subject of the application for reconsideration. I have identified an email exchange at page 176 between Ms Bailey and Mr Coulson 15. However, in respect of the second point and Mr Butters, I have not been able to locate these documents referred to. In respect of the third point I have also not been able to locate a reference to the 29th July in the index supplied. These should have been attached to the original application. Because the Claimant is a litigant in person and bearing in mind the overriding objective, I then provided the Claimant with a second opportunity to send them through in response to the Tribunal correspondence of 2nd July. It is not for me to provide the Claimant with a third opportunity, nor is it a proper use of Tribunal time for me to search through hundreds of documents or to cause further correspondence to be sent seeking further documents to be sent back. Significant Tribunal resource has already been used in respect of this application, with a Tribunal clerk liaising with the parties beyond the normal scope of their day to day duties as voluminous documents have been sent in. 16. In light of the above, I consider that I have the gist of the point being made by the Claimant in the application itself and proceed to consider it on that basis. An application for reconsideration should contain the height of the point being made in any event. The Law 17. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the Judgment. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 5 18. Rule 70(2) of the Employment Tribunal Procedure Rules 2024 requires me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. 19. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 where Elias LJ stated: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” 20. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” Case No. 2410963/2023, 2402896/2024 & 2401955/2025 6 21. In common with all powers under the Employment Tribunal Procedure Rules 2024, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. 22. Regarding fresh evidence being adduced after a hearing, I direct myself in accordance with principles in Ladd v Marshall [1954] 3 All ER 745. The three elements of the test are as follows: a. Whether the evidence could have been obtained with reasonable diligence for use at the original hearing. b. Whether the evidence would probably have had an important influence on the outcome of the hearing, though it need not be conclusive c. Whether the evidence is apparently credible, though it need not be incontrovertible. 23. The application of Ladd v Marshall remains the case in the modern Employment Tribunal and remains applicable to current understanding of how to approach a reconsideration. See: Outasight VB Ltd v Brown UKEAT/0253/14 per HHJ Eady QC (as she was) and Langstaff P in Dundee City Council v Malcolm UKEATS/0019/15 The Application for Reconsideration 24. My role is to consider the Claimant’s application for reconsideration as stated in that application. 25. It is essential to note that whilst the liability Judgment does include criticisms of the Respondent’s approach to disclosure, these were all matters that were Case No. 2410963/2023, 2402896/2024 & 2401955/2025 7 managed within the liability hearing window. This was an experienced full panel who sought to ensure that the parties were on an equal footing throughout. There was extensive discussion with both parties during the hearing as issues arose. Additional time was given to the Claimant to consider her position. She had the opportunity to request more time. She was given the opportunity to make applications and to seek to include any evidence that had been disclosed to her. She did not wish to do so. 26. These matters were all dealt with appropriately at the time and within the hearing window. I have a degree of concern as to how the Claimant now characterises events during the hearing, but given that she is representing herself without the benefit of an objective adviser, I do not wish to dwell on that further. 27. All of the documents that are relied upon in respect of the application for reconsideration were in the possession of the Claimant at some point during the course of the liability hearing. It is not suggested otherwise. 28. On the face of it, this is sufficient to dispose of the attempt to rely on new documents as part of the application for reconsideration. It was open to the Claimant to make an application to include these documents in the bundle. I dismiss the application for reconsideration on this basis. 29. However, I have also gone on to the second stage of the test for the sake of completeness. I remind myself that I am giving preliminary consideration under Rule 70(2) and the threshold for holding a reconsideration hearing. I further remind myself of the provisions of the overriding objective and the fact that the Claimant has represented herself throughout and that this arises in the context of a liability Judgment in respect of which the Respondent’s approach to disclosure is the subject of criticism by the Tribunal. Ultimately, the final point is whether reconsideration is necessary ‘in the interests of justice’ which by its nature is a broad based principle. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 8 30. The second element of the Ladd v Marshall test is whether the evidence would probably have an important influence on the outcome of the hearing, though it need not be conclusive. 31. Regarding the emails between Ms Bailey and Mr Coulson, I accept that internal HR emails with someone conducting a grievance are disclosable, but the contents of these emails are unremarkable. HR is there to give the very advice that Ms Bailey is giving. In any event, this was part of the internal grievance process the decisions in respect of which were background evidence to this case. These emails do not have any prospect of impacting upon the decision making process of the Tribunal. 32. In respect of the documents relating to Mr Butters, his role was part of the internal investigation carried out by the Respondent. He took the decision in respect of the Claimant’s grievance appeal against the conclusion of Mr Coulson. Again, looking at the case broadly, the internal grievance process itself was relevant background evidence. The process could generate relevant evidence from individuals as to what previously occurred which may impact upon the consideration of the list of issues, but the decision of Mr Butters itself was not being directly impugned in the hearing. I fail to see what the material relevance is of someone advising Mr Butters how to structure his report or someone advising about case owner names and positions being removed is to the list of issues. 33. In relation to the handwritten document, the key point in the application is a question mark over whether the Respondent’s actions could lead to a claim against the store and it is indicated that they would not. On the face of it, this and the wider points made in the paragraph appear to be unremarkable and I do not consider how it can be said that they would materially impact on the overall liability Judgment. Case No. 2410963/2023, 2402896/2024 & 2401955/2025 9 34. Therefore, there is no reasonable prospect of the Judgment being varied or revoked in that: a. The documents relied upon by the Claimant in the application could with reasonable diligence have been used at the final hearing. The application does not satisfy the first stage of the Ladd v Marshall test. b. Even if the application of the first stage of the Ladd v Marshall test was too harsh in this respect, I do not consider that there is a prospect of the Claimant establishing that these documents would have had an important influence on the outcome of the proceedings. c. In any event, finality in litigation is an important principle and there is nothing in the application for reconsideration which makes it necessary for the original Judgment to be varied or revoked. d. Reconsideration is not an opportunity to attempt to reargue the case in a never-ending process. _____________________________ Employment Judge Anderson 3rd August 2026 JUDGMENT SENT TO THE PARTIES ON 3 September 2026 FOR THE TRIBUNAL OFFICE Notes Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No. 2410963/2023 2402896/2024 & 2401955/2025 1 EMPLOYMENT TRIBUNALS Claimant: Ms M Teixeira Respondent: Sainsbury’s Supermarkets Limited HELD AT: Liverpool ON: 15th June 2026 BEFORE: Employment Judge Anderson Ms HD Price Mr J Murdie REPRESENTATION: Claimant: Respondent: In Person Mr Carter (Counsel) RESERVED JUDGMENT ON REMEDY 1. Following the previous finding of two acts of unlawful disability discrimination within the meaning of s.15 Equality Act 201, the unanimous Judgment of the Tribunal is that the Respondent is ordered to pay to the Claimant the sum of £10,385.37. This sum consists of: a. An award of damages in the sum of £8500.00 for injury to feelings. b. Interest calculated at £1885.37. Case No. 2410963/2023 2402896/2024 & 2401955/2025 2 REASONS Introduction 1. This is the unanimous Reserved Judgment of the Tribunal in relation to remedy in the case of Ms. M Teixeira v Sainsbury’s Supermarkets Limited. 2. In the liability Judgment, the Tribunal determined that the claims of discrimination arising from disability as provided for in s.15 Equality Act 2010 were well founded in respect of the Claimant being provided with a written warning and the Respondent’s refusal of the appeal against that written warning. 3. The key conclusions in relation to section 15 Equality Act 2010 can be found in paragraphs 197-225 of the written reasons. 4. All other claims were dismissed. 5. The purpose of the hearing today was to determine the damages payable to the Claimant. This requires consideration of the following points: a. Should we treat the discrimination as one act as the Respondent submits or two acts as the Claimant submits? The Respondent suggests that it should be treated as a single act. b. What damage was caused to the Claimant as a result of the act or acts of discrimination? c. Is the Claimant entitled to aggravated damages? d. What interest is payable? e. What is the overall sum in damages payable to the Claimant? Procedural Matters 6. The Claimant provided a witness statement for the hearing today. With respect, that witness statement covered a wide range of issues and only on occasion touched upon the issues that were to be determined at this remedy hearing. 7. In addition, the Schedule of Loss in the remedy bundle had not been updated in light of the liability Judgment. That Schedule of Loss sought an injury to feelings award beyond the top end of the highest Vento band. 8. We therefore discussed with the parties what the hearing today was about. We gave the Claimant time to consider her position and called the parties back in. Case No. 2410963/2023 2402896/2024 & 2401955/2025 3 9. Because the Claimant appears in person, we considered it to be in the interests of justice and the overriding objective for the Tribunal to ask the Claimant in chief and at the beginning of her oral evidence a) the level of Vento award that she was seeking and b) why she said that level of Vento award was appropriate. Having done so, the Respondent could then cross-examine the Claimant if it wished to do so. 10. We also invited the Claimant to identify if anything else was being claimed beyond injury to feelings, aggravated damages and interest. Nothing else was identified. 11. In her evidence in chief, the Claimant also referenced her successful personal injury claim against the Respondent in April this year. Following this evidence in chief, we gave the Respondent’s Counsel a short break to take instructions before the Claimant was cross-examined. 12. Following the evidence being heard, both parties made submissions. This took the hearing to near lunchtime, and we decided to reserve our judgment, taking the time in the afternoon to deliberate. Findings of Fact 13. The Tribunal found the following facts on the balance of probabilities. 14. In terms of the effect on the Claimant of the discrimination, we accept that the Claimant found the imposition of a written disciplinary warning to be upsetting and that the decision to uphold that disciplinary warning also to be upsetting. 15. We find that this disciplinary warning occurred in the context of the Claimant’s disability and that the fact of the Claimant’s disability is something that the Claimant considers to be of importance. The Claimant plainly feels matters relating to her disability acutely. It may sound trite, but it is personal to her, and she articulated that before us today. 16. The written warning was made on the 11th August 2023 and the appeal against that warning was refused on the 4th October 2023. Within their policy, Sainsbury’s chose to classify the warnings as disciplinary warnings. To be disciplined for absence that was outside her control inevitably impacted on the Claimant. 17. We accept that the Claimant was upset to be put through the process, and we accept that she felt that she was not being listened to. Case No. 2410963/2023 2402896/2024 & 2401955/2025 4 18. In April 2026, the Claimant succeeded in her claim for personal injury in the County Court against Sainsbury’s. We do not have any paperwork from that hearing provided to us from either the Claimant or the Respondent. 19. The Claimant tells us that she was previously represented by a solicitor in that personal injury litigation to around September last year and then represented herself in the County Court. Her evidence was that the County Court awarded 8 weeks of losses in addition to a damages for pain, suffering, loss of amenity (PSLA). 20. The Claimant’s evidence was that the 8 weeks of losses was based upon a figure of 8-12 weeks being claimed by her previous solicitor. She says that this was a result of the medical evidence. 21. The Claimant’s evidence was that there was no overlap between what was sought at that hearing and what is being determined at this remedy hearing. We accept that submission. The Law 22. It is for the Claimant to prove her damages and for the Claimant to prove that her damages were caused by the unlawful discrimination. 23. We direct ourselves that in considering injury to feelings, we are considering the effect of the discrimination on the Claimant. The purpose of damages is compensatory. We are not punishing the Respondent nor do we base the damages on the act of discrimination but rather the effect of the act of discrimination. 24. The authority of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 provides guidelines for the making of awards for injury to feelings. The Court of Appeal identified three categories and discussed the nature of damages and potentially relevant factors such as the effect on the individual, any medical impact, the effect on personal relationships, the effect of the discrimination on the Claimant’s job and their overall career and how any grievance was handled. This is not an exhaustive list and the key consideration is the Tribunal making relevant findings of fact as to the damage caused by the unlawful discrimination and then appropriately assessing it. 25. As to the effect of inflation and any Simmonds v Castle uplift, the April 2023 Presidential Guidance provides as follows: In respect of claims presented on or after 6 April 2023, the “Vento bands” shall be as follows: a lower band of £1,100 to £11,200 (less serious cases); a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper Case No. 2410963/2023 2402896/2024 & 2401955/2025 5 band); and an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200. 26. It was agreed that the relevant ET 1 was the first ET 1 submitted. It was further agreed that the relevant guidance was the April 2023 guidance. Conclusions 27. We do not consider the fact of the Claimant’s successful personal injury claim in April 2026 to have a bearing on this remedy Judgment. It was not suggested that the damages awarded in that case in any way had a risk of double recovery with any of the matters the Tribunal was dealing with today. 28. What was tentatively raised by the Respondent was the incongruence between the Claimant limiting her personal injury claim to a period of 8-12 weeks based on medical evidence and the position that was before the Tribunal that the Claimant was a disabled person, suffering the effects of that injury at the time of the warnings being provided. 29. We did not consider that these points took the case any further. Our reasoning was as follows: a. The Respondent accepted that disability had previously been conceded in this litigation. b. There was a significant distinction between the question of causation and damage in personal injury and the test for s.6 disability in the Equality Act 2010. c. The Respondent was a party to the litigation in April. As a corporate body, it is seized with all relevant knowledge of what happened at that hearing. If anything at that hearing was material to the Tribunal process, it was the Respondent’s responsibility to a) make any appropriate application and b) place any relevant evidence before the Tribunal. This had not occurred. Injury to Feelings & Interest 30. We have considered whether to treat the discrimination as one or two acts of discrimination. 31. The Respondent submits that this was all part of a single process arising out of the application of the same policy. The Claimant submits that these were two distinct decisions which were taken a number of months apart by two different people. Case No. 2410963/2023 2402896/2024 & 2401955/2025 6 32. We conclude that there were two acts of discrimination. This is consistent with our liability Judgment which treated the acts as separate and also the way in which the acts were framed in the list of issues. We also accept the Claimant’s submissions regarding the fact that there were two decision makers, that the decisions were distinct and that there was a number of months between the two decisions being taken. We accept in broader terms that there is some relevant context, namely that this was part of one process relating to the same subject matter and take that into account when making our overall Judgment on the correct Vento award, but we are clear that we are finding that there were two acts of discrimination. 33. With regard to the level of Vento award, the Claimant submits that this case falls within the middle of the middle Vento band and the Respondent submits that this falls within the lower band in the region of £5,000. The basis for the Respondent's submission in part relies upon some first-instance decisions from 2007 in Harvey which, when uprated to take into account inflation, reach the ballpark of £5,000. It is to be noted that these cases were also pre Simmonds v Castle. 34. The fact that we have found that there were two acts of discrimination is relevant to our consideration of banding, but does not compel us to automatically place this case in the middle band. 35. We have taken into account the original Vento case and the Presidential Guidance from April 2023. Our collective view is that this is a case which is above the middle of the lower band and moves towards the higher end of the lower band. 36. We consider that the original warning had a personal impact on the Claimant. That impact was exacerbated by the fact that the appeal upheld the original discriminatory decision, particularly in circumstances whereby the appeal was poorly handled, which further exacerbated the impact on the Claimant. It is also relevant that this process occurred over a period of just under two months. 37. At the same time, these were warnings. They were not a final warning. The Claimant’s dismissal, which was a fair dismissal was not an escalation of these warnings. The Claimant’s dismissal in a later period related to long term ill health following a subsequent deterioration in the medical position. 38. When the Claimant refers to her overall career being affected, we do not accept that any effect on her career was caused by the two acts of unlawful discrimination. Had the unlawful discrimination not occurred, we do not have any evidence before us to suggest that the Claimant would be in a different Case No. 2410963/2023 2402896/2024 & 2401955/2025 7 position in the jobs market today. Again, it must be understood that the dismissal was in no way a continuation of these warnings. 39. We consider that the correct figure for injury to feelings is £8500.00. This reflects the fact that there were two acts, spread out over a number of months and the fact that the Claimant was particularly upset and was in a position of having to challenge her employer in a situation where she did not appear that she was listened to. 40. We consider that if we were to make a lower award, in the region suggested by the Respondent this would not adequately reflect the injury to feelings on this specific Claimant. First instance decisions can provide an indication, but injury to feelings is inherently fact sensitive. We do not know whether there was more than one act in those cases and these cases have been drawn to our attention because they are ‘warnings’ cases which is relevant context, but has to be seen in the wider context of the key consideration not being the act itself but the effect on the Claimant. 41. We do not award a higher sum. In seeking to cover off so many non discriminatory events in her witness statement, the Claimant has had greater difficulty in identifying and proving the effects of the specific acts of discrimination found. We have made allowances in accordance with the overriding objective and allowed ourselves to ask some questions of the Claimant in order to give her the opportunity to give evidence on this, but it is also right that we must make our decision on the evidence that is before us. 42. Much of what the Claimant describes as the more significant effects on her, including her employment, her long-term well-being and what she identifies as being the most serious matters, e.g. allegedly being locked out of the store or dismissed, are not acts of discrimination. What we have tried to explain in this hearing and in this Judgment is the need for causation between the acts of the discrimination and the damages sought. 43. We award interest at 8%. The Respondent asks that we consider the wording of section 124 of the Equality Act 2010 and make a lower award. We have considered this submission. We see no reason either in law or on the facts why it would be appropriate to award interest at a rate less than 8%. We award interest at a rate of 8% in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803. 44. We accept the Respondent’s submission that if we were to find two acts of discrimination then one way of calculating interest is to find the mid point between the two relevant dates. The alternative would be to make two separate injury to feelings awards, a route which we do not consider to be attractive in Case No. 2410963/2023 2402896/2024 & 2401955/2025 8 circumstances where we must look at the totality of the award. Therefore, we approach interest using the approach of the mid date between the two acts of discrimination as the relevant start date. The written warning was dated 11th August 2023. The appeal was rejected on the 4th October 2023. The mid-point between these two dates is the 7th September 2023. The remedy hearing was held on the 15th June 2026 and there are 1,012 days between these two dates. Accordingly, we award the sum of £1,885.37 in interest. 45. We have also taken a step back and looked at the totality of the award. We do not consider it to be unduly excessive or too low. We consider it to be the correct award on the specific facts of this case. Aggravated Damages 46. In her witness statement and as discussed with the parties in submissions, the Claimant’s witness statement seeks ‘uplifts’ based upon the conduct of the Respondent in this litigation. 47. The Claimant contends that the disclosure breaches, which are detailed in our liability Judgment should give rise to aggravated damages. 48. The Claimant also relies upon the Respondent’s conduct of the litigation in terms of the allegations put to her in cross-examination and also suggests that there were documents in the bundle which were forged. 49. As to aggravated damages, we direct ourselves in accordance with the Judgment in Commissioner of the Police for the Metropolis v Shaw [2012] IRLR 291 that they are an extension of an award for injury to feelings. 50. It follows that aggravated damages are not a general award in respect of any criticism that may be attached to how a Respondent has conducted the litigation. There must still be sufficient causation between the unlawful discrimination and the damage sustained by the Claimant. 51. The vast majority of matters which the Claimant relies upon to establish injury to feelings relate in some way to points in respect of which it has been found that there was no unlawful discrimination. 52. As to the test for aggravated damages, we direct ourselves that it must be found that the Respondent acted in a "high-handed, malicious, insulting or oppressive manner." We do not make this finding. There are a number of criticisms of the Respondents conduct of the litigation in the liability Judgment, but as noted above, they are not on point. Case No. 2410963/2023 2402896/2024 & 2401955/2025 9 53. There are two potential criticisms which on the face of it may relate back to the matters of unlawful discrimination that we have found. They are a) the disclosure breach regarding the failure to put the correct version of the absence policy in the original bundle; and b) the criticisms that we make of Ms. Sleyyum's witness statement. 54. Neither of these points has been focused on by the Claimant as a basis for aggravated damages and therefore we would consider it to be unduly prejudicial to the Respondent for us, of our own volition, to find these points to be aggravated damages. 55. But in any event, we do not consider in the overall circumstances of this hard-fought litigation that the matters in our original liability Judgment meet the threshold of the Respondent acting in a "high-handed, malicious, insulting or oppressive manner". We consider that so finding would risk effectively treating any substantive criticism as a basis for the awarding of such damages in circumstances where the high threshold is not met. 56. In our liability Judgment, we do not make a finding that the disclosure breaches were deliberate. There is no sensible reason why the Respondent would place the wrong policy in the bundle only for its later witnesses to identify, unprompted that the wrong policy was in the bundle. As to the witness statement, our criticisms stand, but we do not consider that they are sufficient to merit a finding of aggravated damages. 57. With regard to the references to forged signatures, we resist the invitation to be pulled into collateral issues. We have not made any finding that any individual signature was forged, a finding that we would not make lightly and would require compelling evidence that goes beyond the frailties of individual memory recollection. Rather, we have considered the substance of documents such as the WRAPS and their impact on the list of issues. The detail of the WRAPS could have been communicated more effectively and we have made some criticisms, but the substance, the fact they took place or the contents was not the subject of significant challenge, irrespective of any invitation to consider the accuracy of signatures. April 2024 Emails 58. Within the remedy bundle [pg. 378] is a document containing a number of emails between Michael Coulson and Jen Bailey which the Claimant says is relevant to remedy. This document was not placed before the Tribunal in the original hearing. Case No. 2410963/2023 2402896/2024 & 2401955/2025 10 59. We also note that within the Claimant’s witness statement for remedy is the suggestion that the Tribunal excluded a document that she wished to place reliance upon. We understand her to be referring to this document. 60. Given the inclusion of this document in the remedy bundle, we take this opportunity to record a number of points. 61. Our collective recollection as a panel is that during the hearing a number of disclosure issues arose. At no time was a document placed before the Tribunal which either the Respondent sought to exclude or the Tribunal in fact determined should be excluded. 62. During the liability hearing, there were general discussions as to what was relevant and what was not, for example, whilst the disciplinary process that was followed in relation to Mr. Sumner was potentially disclosable because it could contain consistent or inconsistent statements with positions adopted by a witness in these proceedings, the Tribunal was not here to adjudicate upon whether or not Mr. Sumner should or should not be disciplined as a result of Sainsbury’s internal processes. 63. When a disclosure issue arose, the Respondent either had already or was in the process of providing the Claimant with the late document. The process by which late documents could be relied upon was also explained and during the case, some additional documents were added. Nothing was being excluded. 64. In any event, having read the emails inserted in the remedy bundle, we do not consider them to be revelatory. Indeed, they are entirely consistent with our understanding of the oral, written and documentary background evidence in this case and what Mr. Coulson was saying his view of the evidence was. The email evidence at page 378 supports the general thesis that there were problems with management, that there were problems with effective communication, that things should have been handled better. The Tribunal was aware of this and indeed considers this to be consistent with its liability Judgment. 65. We do not consider this document to be relevant to our determination on remedy. The reason for this is that we are awarding the Claimant damages for the written warning and the appeal, events which occurred in 2023. The document at page 378 is concerned with different issues and is significantly after this period. Case No. 2410963/2023 2402896/2024 & 2401955/2025 11 _____________________________ Employment Judge Anderson 15th June 2026 JUDGMENT SENT TO THE PARTIES ON 7 August 2026 FOR THE TRIBUNAL OFFICE Case No. 2410963/2023 2402896/2024 & 2401955/2025 12 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 ARTICLE 12 Case number: 2410963/2023 Name of case: Ms M Teixeira v Sainsbury's Supermarkets Limited Interest is payable when an Employment Tribunal makes an award or determination requiring one party to proceedings to pay a sum of money to another party, apart from sums representing costs or expenses. No interest is payable if the sum is paid in full within 14 days after the date the Tribunal sent the written record of the decision to the parties. The date the Tribunal sent the written record of the decision to the parties is called the relevant decision day. Interest starts to accrue from the day immediately after the relevant decision day. That is called the calculation day. The rate of interest payable is the rate specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as the stipulated rate of interest. The Secretary of the Tribunal is required to give you notice of the relevant decision day, the calculation day, and the stipulated rate of interest in your case. They are as follows: the relevant decision day in this case is: 7 August 2026 the calculation day in this case is: 8 August 2026 the stipulated rate of interest is: 8% per annum. Paul Guilfoyle For the Employment Tribunal Office Case No. 2410963/2023 2402896/2024 & 2401955/2025 13 GUIDANCE NOTE 1. There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim. 2. The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day. 3. The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day. 4. Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day. 5. Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid. 6. If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part. 7. If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part. 8. If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded. 9. The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2410963/2023 2402896/2024 & 2401955/2025 14 Notes Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/