← Back to searchEmployment Tribunal
- Case Number
- 4102702/2012 and 4107069/2012
- Claimant
- Professor R Sheikholeslami
- Respondent
- The University of Edinburgh
- Venue
- Scotland
- Hearing Date
- 31 January 2025
- Judgment Type
- Preliminary Hearings in the
- Compensation
- £1,000,000
- Jurisdiction
- Disability DiscriminationSex DiscriminationUnfair DismissalandUnlawful Deduction from Wages
Judgment
30 It is the judgment of the Employment Tribunal that: 1 The claim of sex discrimination is dismissed. 2 The claim of failure to make reasonable adjustments is dismissed. 35 3 The claim of discrimination arising from disability is dismissed. 4 The claim of victimisation succeeds in part. 5 The claim of unfair dismissal succeeds. 6 The claim of failure to pay holiday pay succeeds. 7 The application to reconsider the decision to refuse an amendment to 40 include a claim for notice pay is refused. 8 The case will be listed for a hearing on remedy in due course. S/4102702/12 & 4107069/12 Page 2 Introduction 1. The claimant, who is 60 years old, was employed by the respondents as a Professor and held the Chair of Chemical Process Engineering with them 5 between the 1st of May 2007 and the 12th of April 2012. In these conjoined cases she claims that she was unfairly dismissed. She also claims that in the course of her employment she suffered discrimination on the grounds of her disability and sex and victimisation. At the start of the hearing, the tribunal gave permission for the claim to be amended to bring a claim for unpaid 10 holiday pay. The application to amend to include a claim for breach of contract in respect of notice pay was refused and an application has been made that that decision should be reconsidered. 2. The claimant’s claims are resisted by the respondents. There has been 15 considerable procedure
1,313 words remaining
Reasons
that Professor Brandani’s research in Carbon Capture and Storage was a
research of growing importance in energy which was relevant to research at
that time being carried out within the respondents and, further, that Professor
Brandani had greater experience and knowledge of UK academia and
20
teaching and research than did the claimant who had previously been
employed in Australia.
19. After Professor Brandani was appointed, Professor Bullfield spoke to
Professor Peter Grant who was at that time the Head of School of
25
Engineering and suggested to him that the claimant should also be
appointed. In December 2006 and January 2007 negotiations took place with
the claimant regarding a package to be offered to her by the respondents.
20. The Tribunal accepted that in entering into these negotiations and
30
subsequently accepting employment with the respondents it was the intention
of both parties that the claimant should maintain her position with the
respondents until retirement. To this end there was discussion between the
S/4102702/12 & 4107069/12 Page 7
claimant and Jon Gorringe regarding the shared equity scheme of which she
was a recipient and whether that scheme could be maintained till retirement
(CBD4, 4 of 496).
21. As part of her start up package the claimant was to be given the use of a
5
laboratory which was at that time being used by an external company called
Artemis. In order to bring the laboratory up to the required specification it had
to be completely gutted and refurbished.
22. The Tribunal accepted the evidence of Professor Peter Grant that the
10
claimant’s overall start up package was valued at £948,000 of which
£600,000 was spent on the laboratory. The Tribunal accepted the evidence
of Professor Peter Grant that Professor Brandani received an offer of
£182,000 from the respondents as a start up package.
15
23. The claimant commenced her employment with the respondents on the 1st of
May 2007. It was anticipated that the claimant’s laboratory would be ready
by May 2008. It was anticipated that in the intervening period the claimant
would start planning her laboratory with the Estates and Buildings Team at
the respondents.
20
24. Following the commencement of the claimant’s employment, interviews were
conducted to appoint a technician who would spend 60% of his or her time
working with the claimant. In the event Steven Gourlay was appointed.
However Steven Gourlay turned out to be unsuitable for the post and
25
Dr Peter Anderson, a Research Assistant in Chemistry was appointed and
started working with the claimant in or around April 2008.
25. By September 2008 the chemical process engineering laboratory was still not
completed. In January 2009 Mr Bob Gusthart was appointed as Technical
30
Services Manager and recommended that a Process Design Engineer was
needed to construct the laboratory. The respondents acceded to this request
and brought in an outside company, namely Desighn Limited. From April to
S/4102702/12 & 4107069/12 Page 8
June 2009 Desighn Limited worked with the claimant on the specification of
her laboratory. In about August 2009 Desighn Limited completed the
specification for the claimant’s laboratory. The laboratory was completed
round about October and November 2009.
5
26. In the period May 2007 to October 2009 the claimant had no research facility
as she did not have access to a working laboratory. In this period the
Tribunal finds that the claimant raised the issue of her lack of technical
support and the delay in construction of the laboratory with the respondents
on numerous occasions.
10
27. On the issue of the delay in the construction of the laboratory the Tribunal
accepted the evidence of Professor Murray that the delay was, in part, due to
the school’s inexperience in a new area of research and their consequential
lack of knowledge in the construction of the laboratory for the same, coupled
15
with long lead times for component parts. Further, the Tribunal accepted the
evidence of Professor Alan Murray and Professor Peter Grant that the
claimant did not display the hands on advice and input to the laboratory’s
design and construction in the way that was expected of a recipient of a start
up package. For her part, the claimant’s position was that she had not
20
accepted the position of Chair and Professor of Chemical Process
Engineering to move across the globe and to act as a technician and set up a
lab. (The claimant’s chief witness statement para 72).
28. The Tribunal considered the issue of the lack of hands on advice and input by
25
the claimant in the setting up of her laboratory to be an example of the
miscommunication that existed between the claimant and the respondents at
that time. The claimant accepted that Professor Alan Murray and Professor
Peter Grant had certain expectations that the claimant would have significant
involvement in the setting up of her laboratory. The Tribunal found that such
30
expectations (which were incumbent upon men and women), were not
adequately communicated to the claimant in such a way that it was clear to
the claimant that this was part of her role within the respondents. In reaching
S/4102702/12 & 4107069/12 Page 9
this conclusion the Tribunal accepted that there was communication between
the respondents and the claimant regarding her involvement in setting up the
lab; however such communication did not appear to result in clarification of
the point that the claimant’s lack of input into the laboratory was a cause of its
delay and completion.
5
29. On the issue of communication generally the Tribunal found as a whole that
the expectations of the incumbents of the School of Engineering as to the
nature and extent of the role of a Professor within the school were not shared
by the claimant. The Tribunal found this difference to be attributed to a
10
difference in culture and expectation and noted the shared collective
experience of academia within the UK by the incumbents within the School of
Engineering. The Tribunal also observed that many of the incumbents of the
School of Engineering had worked together for a considerable number of
years. The claimant had no experience of UK academia.
15
30. Further and in any event the Tribunal observed that the claimant held and
does hold a high opinion of her status as a world renowned Professor of
Petrochemical Engineering and was not prepared to engage herself in tasks
which she considered were demeaning. In this respect the Tribunal accepted
20
the evidence of Professor Alan Murray that the claimant (like some other
academics) was someone who did not like to follow rules, which she felt
constrained her other activities.
31. The claimant relies upon Professor Stefano Brandani as a comparator and
25
maintains that he was given laboratory space and a technician from the
outset of his employment which the claimant was not. To this end the
Tribunal accepted the evidence before it that whilst Stefano Brandani was
indeed given a laboratory space at the outset of his employment with the
respondents such laboratory space was within an established laboratory
30
which he shared with others. Accordingly on commencing his employment
with the respondents there was no requirement for him to have a “start up”
laboratory of the nature and extent to that provided to the claimant. The
S/4102702/12 & 4107069/12 Page 10
Tribunal observed that there was no evidence before it to support the
proposition that the claimant was not provided with technical support from the
commencement of her employment with the respondents.
32. In late August 2008 Professor Peter Grant asked Professor Brandani to serve
5
as Head of the Examination Boards for Chemical Engineering Undergraduate
Students- “Chair of the Board of Examiners”. The Tribunal accepted the
evidence of Professor Alan Murray that this was an onerous role which was
not perceived to be prestigious.
10
33. There was no transparency in the recruitment of Professor Brandani to the
position of Chair of Board of the Examiners. To this end the Tribunal
accepted the reasons given by Professor Nigel Brown that Professor Stefano
Brandani had been appointed as Chair of the Board of Examiners as he had
already established his research activity and had engaged enthusiastically
15
with teaching and therefore to a certain extent was established within the
respondents. Whilst the lack of transparency in these criteria for selection
can be criticised, the Tribunal concluded that the criteria were nothing
whatsoever to do with the claimant’s sex.
20
34. In January 2010 a new team who were working in Carbon Capture joined the
University. That group was headed up by Professor Jon Gibbins. A
significant amount of equipment was coming with the new team which
needed to be housed within the School of Engineering.
25
35. The Tribunal accepted the evidence of Professor Alan Murray that the only
space available to store equipment was in part of the newly refurbished
technical process engineering laboratory designed for the claimant.
Professor Alan Murray discussed this with the claimant who objected strongly
to his decision to house the equipment there.
30
36. There ensued correspondence regarding the housing of Professor Gibbins’
equipment within the claimant’s lab (CBD140-157). The parties liaised
S/4102702/12 & 4107069/12 Page 11
regarding the possibility of an external expert intervening in the dispute but
were unable to reach agreement.
37. In January 2010 the claimant was diagnosed with work related stress and
depression. She did not return to her employment with the respondents. In
5
late April 2010 the claimant found out her salary would be reduced when she
was absent on sick pay. Her salary was initially reduced to half pay and then
to no pay.
38. The claimant asked HR about income protection insurance and workers
10
health and safety insurance. They gave her advice about who to contact. In
the period January 2010 to the termination of her contract of employment the
claimant produced fit notes to the respondents covering her absence
(Supplementary Witness Statement, 57-79).
15
39. In this period the claimant took medication for anxiety, stress and depression.
The Tribunal accepted the evidence of the claimant that throughout this
period she had no social life and was unable to do activities she previously
could do such as exercise and shopping. Throughout that period the
claimant was frequently tearful due to the symptoms of her illness.
20
40. The Tribunal accepted the evidence that in the period January 2010 to April
2012 the claimant attended Harlow College from time to time in her capacity
as a Governor there. Further, the claimant attended conferences, sometimes
abroad and on occasion gave lectures.
25
41. However, the Tribunal found that engagement did not take place on a weekly
or even on a monthly basis. In respect of her engagement in outside
activities was concerned, the Tribunal accepted the evidence of the claimant
that sporadic engagement was her “salvation” from her profound mental
30
health issues.
S/4102702/12 & 4107069/12 Page 12
42. On the 14th April 2010 the claimant, along with Professor Andrea Schaefer
wrote to the Principal of the University of Edinburgh, Professor Sir Timothy
O’Shea and stated:
“Dear Tim
5
As the only 2 female Professors remaining from those hired and
brought to the UoE in 2006/2007 by the School of Engineering we
would like to discuss with you how to make our work viable. Right
now, under the current conditions, we are completely disabled in our
10
employment due to:- gender discrimination …”
The letter went on to state “To move forward we would like to speak with
you in order to find a constructive solution to the above issues which not
only hamper our professional life and growth but also severely and
15
adversely impact our health and personal circumstances to an extent we
can no longer bear.” (page 153, CBD)
43. The Tribunal were unanimous in their view that it could not be disputed that
by 14th April 2010 the claimant had made a grievance the subject matter of
20
which was sex discrimination.
44. As a result of the letter written by the claimant and Andrea Schaefer to the
Principal a diversity review of the School of Engineering was instigated in
June 2010 and commenced in August 2010 under the auspices of Professor
25
Jo Shaw, a Professor in the Faculty of Law. The Tribunal accepted the
evidence that Professor Jo Shaw is a well respected and robust individual
who had been selected carefully for her task.
45. In December 2010 Professor Jo Shaw published her report of her review
30
(309-321 CBD). In her review, Professor Jo Shaw stated:
S/4102702/12 & 4107069/12 Page 13
“13 One document should be mentioned specifically. In late August
2010 I received through the University internal mail an anonymous
communication comprising a single piece of paper on which were
printed 2 internet addresses. The intention of the communicator was
clearly that I should follow those addresses and draw certain
5
conclusions from them which reflected badly upon certain individuals
who work in the school. I did follow the links and drew the conclusion
from this that there were people in the school who wanted to
influence my judgement about these issues in a problematic way,
despite the insistence of the Head of School that he was entirely
10
supportive of the Review and despite his encouragement to staff to
approach me to provide an input (many did so) or to respond my
approaches positively (as many did). I should note that the links
encouraged me to look away from systemic and cultural issues with
which this review is solely concentrate and to concentrate on the
15
personal and personnel issues which lie outwith its scope. I chose to
ignore the content of the web pages referred to in the note.”
46. The Tribunal accepted the undisputed evidence before them that the
anonymous communication comprised an email containing two links to web
20
pages relating to the claimant’s time in Australia. The content of the web
pages was such that it was likely that an adverse inference would be drawn
by the Professor Jo Shaw. The Tribunal was given no reason to doubt the
conclusion of Professor Jo Shaw that the author of the anonymous
communication came from within the School of Engineering.
25
47. In her review Professor Jo Shaw referred to findings made by Dr Wendy
Faulkner in 2006. A summary of her findings is to be found on page 6 of
Professor Jo Shaw’s report (page 314) and include:
30
“In the focus group with men from the School all appear to have been
convinced that the then very recent appointment of 4 women
professors in the school was entirely due to what they called “positive
S/4102702/12 & 4107069/12 Page 14
discrimination”. The disparity and tone of this discussion and the
apparent unanimity in the group indicated that there was a
widespread and much complained about view within the School that
“these women were appointed because they were women, not
because they were good enough”.
5
48. In her section “Findings of the Review Interviews” Dr Jo Shaw included the
following paragraphs (page 315-316):
“25 Many of the staff I spoke to had worked for a long time in the
10
school. Overwhelmingly they expressed contentment about their
own treatment and what they saw of the treatment of others although
many did suggest that approaches to management had changed
radically since the appointment of a new Head of School in 2008.
There had been a shift from a rather centralised model, one even
15
described by interviewees as “patrician”, to a more decentralised
model in which much line management responsibility was devolved
to Heads of Institute who had participated in turn in a Senior
Management Team with the Head of School, School Administrator
and Director of Research. … 27 A consistent negative theme
20
expressed by some interviewees was that they were concerned
about the presence of an “insiders” culture in the School of
Engineering. … Equally it should be noted that there were also
expressions of satisfaction about the school and its working
environment coming from those whom one might classically have
25
expected to be “outsiders”.
49. In the “summative findings of the review” Professor Jo Shaw stated:
“34 I concluded that the problems which the school currently faces lie
30
under the shadow of events of 2006 and shortly thereafter when
some individuals found their competence negatively judged before
they even joined the school. My tentative suggestion is that this is
S/4102702/12 & 4107069/12 Page 15
not caused by “gender” bias as such, or at least no more than is
(regrettably) still all too prevalent across engineering generally as a
profession, and indeed (albeit to a lesser extent) across academic
workplaces in STEM fields. Rather I concluded that the school has
developed a culture which sometimes draws unhelpful distinctions
5
which individuals often find hard to negotiate, between insiders and
outsiders. Gender is one of the vectors along which judgements
about whether an individual belongs or is not is transmitted, but it is
not the only one … Laudable efforts to change the culture of the
school is starting, at least, with it’s management structure and style
10
and with a new leadership have yet to bear fruit at least so far as the
working experience of some members of staff is concerned.”
50. The report of Professor Jo Shaw concluded thus:
15
“41 All of this work needs to be underpinned by a comprehensive
diversity “audit” of the school undertaken in the context of the College
in which it sits. The audit should be prepared by a professional team
from outside the University. This should include work on retention. It
would be useful to discover more about the anecdotal evidence that
20
talented people have left because they find it hard to fit in if indeed it
is true. Exit interviews and reconnection with staff members who
have left since 2006 would be an important element of this work.”
51. The Tribunal accepted the evidence of Professor Alan Murray that the review
25
was in fact undertaken by an external company OSDC and was published in
April 2011. The report resulting from the review is to be found at the
claimant’s bundle CBD at page 420.
52. The Tribunal accepted the evidence of Alan Murray that Professor Jo Shaw’s
30
report was the first he had heard of the comments reported by Dr Wendy
Faulkner in 2006. On the 4th of February 2011 (respondent’s first bundle
S/4102702/12 & 4107069/12 Page 16
p151), Professor Alan Murray wrote to the claimant and Professor Andrea
Schaefer in these terms:
“Dear Roya
5
Review of Diversity in the School of Engineering
I am sure that you have read Professor Shaw’s report with interest.
At this stage, I feel compelled to write to you and to Andrea regarding
a set of unwelcome views that came to light as a result of Jo’s
10
investigations.
I refer to the views expressed to Dr Wendy Faulkner in 2006, during
an interview with a group of male staff in the School of Engineering.
The meeting discussed the then recent appointment of four women
15
professors in the School. The views are summarised by Professor
Shaw in her report, section 20(3) as “…these women were appointed
because they were women, not because they were good enough”.
I am sure you know that I was shocked to hear these views, which I
20
find distasteful and indefensible. Only one of the four appointees had
actually worked in Edinburgh at the time. Casting aspersions on her
appointment was demonstrably unjustified. Doing so with respect to
three further new colleagues who had not even started work here in
Edinburgh was preposterous.
25
Sadly, we cannot rewrite the past but I can express my unqualified,
personal rejection of such views. I can also, representing the School
as its current Head, add regret that such views were once held and
their expression felt to be acceptable.”
30
53. On 31st January 2011 the claimant and Andrea Schaefer wrote to Professor
Nigel Brown copying Professor Sir Tim O’Shea, the Principal of the
S/4102702/12 & 4107069/12 Page 17
University. In that letter Professors Shafer and Sheikholeslami made certain
suggested recommendations. These recommendations included:
“We have discussed with Professor Sir Timothy O’Shea a clear
indication of our suggested way forward which entails a move outside
5
of the School of Engineering.” (page 324, CBD)
54. The Tribunal accepted the evidence that in January 2011 the claimant
wanted to return to work and saw a gradual reintegration via another school
to be a way back into the workplace after being absent for a year with work
10
related stress and depression.
55. Professor Nigel Brown replied to the claimant and Professor Shafer on the
16th of February 2011 (327-328 CBD). In that letter he stated:
15
“I note your discussions with the Principal and your suggestion of a
move outside the School of Engineering. While I support the
integration of different areas of science in order to develop
interdisciplinary working I would have thought a more positive and
productive way forward would be to work in your existing refurbished
20
laboratories in an improved relationship with current colleagues.”
56. Under cross examination Sheila Gupta agreed that there would have been no
work permit issues had the claimant been allowed to move school on a
temporary basis. In cross examination Sheila Gupta accepted that Professor
25
Nigel Brown, at that time the Vice Principal and the Head of the College, did
not exclude the possibility of such a move in his letter of 6th February 2011
but merely expressed a view that the claimant and Professor Andrea
Schaefer could work in their existing schools focussing on an improved
relationship with their current colleagues.
30
57. There was a meeting on the report by Professor Jo Shaw on the 15th
February 2011. The Tribunal accepted the evidence of Professor Alan Murray
S/4102702/12 & 4107069/12 Page 18
that at this meeting some members of the School of Engineering made
representations about their unhappiness with the review process and in
particular that it seemed to have been based on and unfairly influenced by
the comments of Dr Wendy Faulkener. The claimant was absent from this
meeting as she was still on sick leave.
5
58. The Tribunal finds that after the meeting on the Professor Jo Shaw report
which took place on the 15th of February 2011 the claimant became regarded
as an individual to be distrusted and disliked in the School of Engineering.
To that end the evidence of Dr Don Glass was that both he and his
10
colleagues had a general feeling that the claimant’s allegation on gender had
been overegged. Their view was that the claimant had not got her way in the
School of Engineering and her allegations of gender bias were simply a
reaction to that. The feeling that the claimant’s disputes with the School were
actions that were overegged formed part of the basis of the dislike himself
15
and his colleagues felt towards the claimant (the words in italics are the
words used by the witness himself).
59. In 2011 there was an “injunction” (in the words of Dr Don Glass) not to
contact the claimant as she was in dispute with the respondents. The
20
instruction or injunction was that under no circumstances was contact to be
made to her other than through solicitors. The injunction was given to Don
Glass and others verbally, there being in existence no email trail of the same.
60. The “injunction” not to contact the claimant was imposed on Dr Don Glass
25
and others who were advised that they should not contact the claimant
except through her solicitors as she was in dispute with the School. In 2011
the dispute the claimant had with the school was that of gender equality
which she had by then raised on a number of occasions. Indeed, the
claimant’s dispute along with the dispute of Professor Schaffer had resulted
30
in the report by Professor Jo Shaw whose comments with reference to Dr
Wendy Faulkner’s findings had not found favour among certain quarters in
the School of Engineering.
S/4102702/12 & 4107069/12 Page 19
61. The Tribunal did not have the evidence before it to determine who was
involved in imposing the “injunction” to, in effect, send the claimant to
Coventry. On their assessment of the evidence the Tribunal concluded that
Professor Alan Murray was not so involved. The Tribunal reached this
5
conclusion after having regard to Professor Alan Murray’s demeanour whilst
giving evidence and his sincerity in recounting the terms of the letter of 4th
February 2011.
62. In 2011, following the Jo Shaw report the claimant suffered a deterioration in
10
her health. During this time she continued to supervise the work of her PhD
student Emad Alhseinat. However, her supervision was largely conducted
from home via email and consisted of contact around twice per week and this
was not considered adequate by the respondent.
15
63. In late 2011 Professor Stefiani approached Professor Alan Murray with a
view to allocating part of the claimant’s laboratory to a new Carbon Capture
consortium led by Professors Gibbins and Brandani. Dr Don Glass assessed
the effect of work of any new team might have on Emad Alhseinat’s work.
Dr Don Glass wrote a note of his views on the 15th December 2011 (page
20
404 of CBD). His note commenced with the words:
“I take it that this move has already been decided. The only issue is
therefore whether and how the work of the sole research student
occupant of this suite of laboratories Emad Alhseinat can be
25
protected. Dr Don Glass went on to recommend the purchase of a
piece of equipment that would cost £3,595 plus VAT. The equipment
was purchased, and the claimant’s laboratory started being used by
Professors Gibbins and Brandani.”
30
64. At the same time as the claimant’s laboratory started to be used by
Professors Gibbins and Brandani the Head of the Graduate School Professor
Ingram along with Professor Stefiani decided that Dr Don Glass should be
S/4102702/12 & 4107069/12 Page 20
asked to act as a new supervisor for Emad Alhseinat. Professor Ingram and
Dr Don Glass met with Emad Alhseinat more than once and a change of
supervisor was agreed with him. On 10th January 2012 Emad Alhseinat
informed the claimant that he had been advised by Dr Don Glass that he had
been appointed to act as his third supervisor (page 479 CBD).
5
65. The Tribunal accepted the evidence of Dr Don Glass in cross examination
that communicating with the claimant regarding the allocation of a laboratory
to others and the substitution of himself as Emad Alhseinat’s third supervisor
would have been something that he would have considered doing but for the
10
fact of the “injunction” not to communicate with her apart from via solicitors.
Dr Don Glass accepted that in proceeding as they did to reallocate her lab
and to substitute the claimant for another supervisor of her PhD student the
actings of the School of Engineering could be seen to be an act of hostility
towards the claimant herself. However these acts were not caused by the
15
claimant having made allegations of discrimination nor were they because of
her gender or disability.
66. In his evidence Dr Don Glass stated that in his mind the claimant would not
be returning to work and therefore the reallocation of her lab and her
20
supervisory duties over her PhD student were, in his words, “a necessary part
of the process of clearing up”. The use of term “clearing up” reflects the
general hostile attitude of certain elements of the School of Engineering to
the claimant at that time although in the continuing absence of the claimant
the process was inevitable.
25
67. On 23 May 2011, the claimant met with Dr Waldron. In an email of the same
date, the claimant proposed a “way forward”. This included “providing an
acceptable work condition” for the claimant’s “gradual reintegration to work”;
full coverage of salary and benefits because of work-related illness; and early
30
retirement package for 2 years time and compensation.
S/4102702/12 & 4107069/12 Page 21
68. On 18 July 2011, Dr Waldron responded. That response included a
suggestion that the claimant be referred to Occupational health for an
assessment to facilitate any phased return. However on 19 July 2011, the
claimant replied that until the respondent had agreed to the “substantive
issues” that was not “applicable”. On 21 July, Dr Waldron wrote to say that
5
the respondent could not begin a scheme for re-integration until they had a
clearer picture of the medical and occupational health issues involved. She
understood the claimant might be reluctant to engage with the respondent’s
own occupational health provider and so she wanted to explore whether the
claimant would agree to be examined by an independent occupational health
10
adviser. On 10 August 2011, the claimant said that she would need further
information including the list of questions and the brief that wold be provided
to the examiner. On 19 August, Dr Waldron provided the list of questions.
There was then an exchange of correspondence between August and
November about wider issues but including the claimant raising concerns
15
about the list of questions and Dr Waldron repeating the need for informed
medical guidance if reintegration was to be explored.
69. On 16 December 2011, Dr Waldron wrote to the claimant about a number of
matters. In that letter she said that because the claimant was employed
20
under a work permit, the respondent could not simply offer her another post.
The claimant would have to apply and be successful after external
advertisement for the respondent to support a new work permit. She noted
that the claimant’s work permit would expire in April 2012 and that this may
have implications for the claimant’s continued residency in the UK. She noted
25
they were at an impasse and encouraged the claimant to consider the offer
previously made by the respondent or to consider mediation.
70. On the 11th of January 2012 June Bell, Head of HR wrote to the claimant.
That letter stated:
30
“Dear Professor Sheikholeslami
S/4102702/12 & 4107069/12 Page 22
As you will be aware and as was mentioned in the University
secretary’s letter of 16th December 2011 your work permit expired in
April 2012 specifically on 12th April. As it would not be legal for the
University to continue to employ you to work without such a permit
and in accordance with your terms and conditions of employment I
5
am writing formally to give notice that your contract of employment
with the University will terminate for that reason on 12th April 2012. If
the status of your entitlement to remain in the UK changes please let
me know. Please contact me on the telephone number shown above
or at June.Bell@ed.ac.uk with any questions you may have.”
10
The claimant’s employment with the respondents did terminate on the
12th April 2012.
71. In October 2011 Sheila Gupta, then the Director of HR, prepared the
15
document to be found at the claimant’s bundle of documents CBD 594-595.
In evidence Sheila Gupta admitted that there were possible options to extend
the claimant’s stay in the UK contained within this document which were not
explored by the respondents. Sheila Gupta admitted that there were possible
steps which were not taken by her but which could be taken to enable the
20
claimant to stay in the UK.
72. The section “Additional Points” (page 595) states:
“The question is how she has been supporting herself during their
25
unpaid leave. If she has taken secondary employment or is self
employed or is unbeknown to us switching category of some kind this
is breaching the terms of her work permit. We would be within our
rights to report this to the Home Office.”
30
In evidence Sheila Gupta admitted that this was an adverse and indeed
negative conclusion about the claimant made by her. In evidence she
S/4102702/12 & 4107069/12 Page 23
admitted that she had not bothered to check the real position with the
claimant herself.
73. Sheila Gupta said in evidence that on reflection she should have written to
the claimant about other routes whereby she could retain her employment
5
rather than simply authorising the letter of 11th January 2012.
74. The evidence of Sheila Gupta was that her understanding was that the
claimant was seeking a settlement from the University and would not be
returning to her previous position. For these reasons she did not explore
10
possible options to extend the claimant’s stay in the UK and did not invoke
the grievance policy despite communications made by the claimant which
were (by her own admission in evidence) clearly grievances.
75.
In evidence Sheila Gupta acknowledged the letter of 23rd May 2011 from the
15
claimant to Dr Kim Waldron (152 first bundle of the respondents) was
undoubtedly a grievance and one which was not actioned upon. Her
explanation was that she did not consider that the claimant would wish to go
through the grievance process due to her ill health.
20
76. Sheila Gupta acknowledged in evidence that she played a material role in
the termination of the claimant’s employment and indeed authorised the
letter of 12th January 2012. In authorising this letter Sheila Gupta
acknowledged in evidence that the respondents did not comply with the
ACAS Code of Practice.
25
77. The Tribunal accepted the evidence of Dr Kim Waldron that the decision to
terminate the claimant’s employment was taken by Professor Sir Tim
O’Shea. To this end the Tribunal did not believe the evidence given by
Professor Lesley Yellowlees that she was the individual who took the
30
decision to terminate the claimant’s employment.
S/4102702/12 & 4107069/12 Page 24
78. Sheila Gupta also acknowledged that when the claimant refused to attend
appointments with occupational health service, the respondents took no
further steps to investigate whether or not the claimant was a disabled
person despite having been off from her employment at the University for a
period of over 2 years with stress and depression. She acknowledged in
5
evidence that she played a material role in the termination of the claimant’s
employment without knowing whether or not the claimant was disabled in
terms of the Equality Act 2010.
79. In her actings from October 2011 (594-595 CBD) until the termination of the
10
claimant’s employment Sheila Gupta never referred to the respondents’ own
disability policy to be found at page 337 of the claimant’s second witness
statement. In evidence she agreed that this was a fundamental omission on
her part.
15
80. The respondents’ Disability Policy 2004 is to be found at page 337
onwards of the attachments to the claimant’s supplementary witness
statement. This Policy states:
“It should be remembered that the University is required under the
20
law to make any reasonable adjustments to enable the individual to
continue in post. There are a number of possible options to consider:
(a)
continuing in the same post possibly with appropriate
adjustment;
25
(b)
redeployment;
(c)
early retirement on grounds of incapacity; and
30
(d)
termination of employment” (supplementary witness
statement page 342).
S/4102702/12 & 4107069/12 Page 25
81. Sheila Gupta’s justification for her failures in not only progressing the
claimant’s grievances but also in having no regard to the issue of disability in
the termination of the claimant’s employment was simply that the claimant
was seeking settlement from the respondents. However, such negotiations
as there were between the claimant were not fruitful and at no point could it
5
be said that a settlement was within contemplation.
82. Insofar as the termination of the claimant’s employment was concerned,
Sheila Gupta agreed in cross examination that at no point did the claimant
say she wanted to relinquish her Chair with the respondents and her position
10
as Professor of Petrochemical Engineering with them.
Observations on the Evidence
83. The Tribunal made the undernoted observations on the evidence in general
15
and that of certain key witnesses.
The Claimant
84. The claimant’s witness statements were taken as read. Her cross
20
examination lasted 13 days, the respondents’ evidence commencing in the
last week of April 2015. One of the reasons why the cross examination took
this length of time was that the claimant was clearly unwell which
necessitated regular breaks. Frequently, the Tribunal had to adjourn for the
day early as the claimant was simply too unwell to continue.
25
85. However the Tribunal was of the view that many days were wasted in fruitless
cross-examination of the claimant and there was a failure to cross-examine
on key points. This largely explains the length of the proceedings relative to
the essential Findings in Fact. The approach of the respondent’s
30
representative to cross-examination, in circumstances where the claimant
was clearly unwell, did not assist the Tribunal in determining the issues. In
S/4102702/12 & 4107069/12 Page 26
particular, in light of the evidence, the Tribunal considered it extraordinary
that the issue of disability remained at large.
86. The evidence given by the claimant both in chief and in cross presented a
highly intelligent and very well educated woman who was Iranian born and
5
held Canadian and Australian nationality. Prior to coming to Scotland the
claimant had worked in both Australia and in Canada.
87. The Tribunal accepted the evidence of the claimant that her life was her work.
Indeed this provided an explanation for the Tribunal on the devastating effect
10
to her health following the breakdown of her relationship with the
respondents.
88. The claimant presented as a person acutely aware of her status as a world
renowned Professor of Petrochemical Engineering. As such, the evidence
15
presented a portrait of her arrival to the University of Edinburgh as an
individual with clear boundaries as to what she should or should not be doing
in her role as Professor of Petrochemical Engineering. An example of this is
the issue of the set up of the laboratory. To this end, the Tribunal accepted
the evidence of Professor Alan Murray and Professor Peter Grant that when
20
a new Professor is appointed to the University it is the responsibility of that
Professor to set up the lab in which they and their team will be working.
89. The environment in the School of Engineering into which the claimant entered
in 2006 was one which was populated by academics who had worked for a
25
number of years together and, by and large, who had gained relevant
experience within the UK. The Tribunal observed that the claimant’s
consciousness of her status and lack of experience within UK academia lent
itself to the potential for problems when she arrived in the UK to take up her
position in 2007.
30
S/4102702/12 & 4107069/12 Page 27
90. The claimant was questioned at length on her activities during her period of
absence from 2010. She was not, however, questioned about her “day to
day” activities. The Tribunal therefore took the claimant’s witness statements
on the issue of her “day to day activities” to be unchallenged in cross
examination.
5
Professor Alan Murray
91. The Tribunal were of the collective opinion Professor Alan Murray came
across as an inherently reasonable and measured individual. In his dealings
10
with the claimant the Tribunal concluded that Professor Alan Murray had only
attempted to resolve situations and assist the claimant albeit that at times the
claimant perceived his correspondence to be patronising.
92. The Tribunal adhered to the views of Professor Jo Shaw when she stated in
15
respect of Alan Murray that his efforts in changing the management structure
and style of the School of Engineering were “laudable” (paragraph V1).
93. The Tribunal found that the letter of apology written by Professor Alan Murray
of 4th February 2011 (respondent’s first bundle p151) to the claimant and to
20
Professor Andrea Schaefer to be an expression of his genuine and sincerely
held views.
94. Against these observations, the Tribunal did not find Professor Alan Murray to
be part of the “insider” group referred to by Professor Jo Shaw. Neither did
25
the Tribunal find him to be a part of the group of individuals who deemed it
necessary to impose an “injunction” on the claimant following her “dispute”
with the School of Engineering.
Dr Don Glass
30
95. Dr Don Glass gave evidence to the Tribunal despite having recent surgical
intervention for an intracranial bleed. This caused the Tribunal some concern
S/4102702/12 & 4107069/12 Page 28
and therefore on separate occasions (once on the part of the Employment
Judge and the other on the part of Simon Gorton QC) Dr Glass was asked to
confirm that he was able, fit and willing to give evidence. On each occasion
he indicated his assent.
5
96. In the course of his evidence Dr Don Glass contradicted himself often as a
result of spontaneous statements which later became apparent to him had
ramifications. For example, after stating under oath that there was an
“injunction” not to contact the claimant about any matter apart from through
solicitors as she was in dispute with the respondents, Dr Don Glass tried to
10
retract this to merely an “instruction”. Equally, there were contradictions in
his evidence as to whether or not HR (and in particular female involvement in
HR) were involved in the decision making process in respect of the use of the
lab by Professors Gibbins and Brandani in late 2011 and the substitution of
himself as Emad Alhseinat’s supervisor in the same period.
15
97. The spontaneous passages of evidence given by Dr Don Glass were indeed
very revealing to the Tribunal. Firstly, he was clear in his evidence that by
2011 the claimant was distrusted and unpopular. Later in his evidence he
stated that the “injunction” not to contact the claimant about any matter apart
20
from through her solicitors was because the claimant was already in dispute
with the respondents and further admitted that it was known that that dispute
was over an issue of discrimination. Indeed, the Tribunal concluded that
those views pervaded from the report by Professor Jo Shaw in which was
expressed therein the views of Dr Wendy Faulkner. To this end the Tribunal
25
noted that at the open meeting on the 15th February 2011 some individuals
were unhappy with the review process and in particular that the report
seemed to have been based upon Dr Wendy Faulkner’s comments that there
was prejudice in the School of Engineering.
30
98. The Tribunal concluded that Dr Don Glass was a prime example of the
“insiders” referred to by Professor Jo Shaw in her report. Further, the
Tribunal concluded that Dr Don Glass was certainly privy to a body of
S/4102702/12 & 4107069/12 Page 29
individuals that concluded that an “injunction” should be placed on them to
refrain from contacting the claimant as she was in dispute with the
respondents over issues of discrimination.
Bridgeen McCloskey
5
99. The Tribunal considered that the cross examination of Bridgeen McCloskey
revealed her to have a far greater involvement in the treatment by the
respondents of the claimant than initially apparent from her witness
statement. To this end, the Tribunal found her evidence in cross that her
10
comments in paragraph 11 of her witness statement were tantamount to an
accusation of unprofessional behaviour on the part of Professor Jo Shaw to
be indicative of her views on equality and diversity as a whole. What came
across to the Tribunal was her unswerving loyalty to the School of
Engineering under any circumstances.
15
100. Further, the Tribunal found it revealing that Bridgeen McCloskey did not deny
having a conversation with Dr Don Glass in 2011 in which she advised him
not to contact the claimant apart from through solicitors. The Tribunal
concluded that esto there was an “injunction” in place as stated by Dr Don
20
Glass, then Bridgeen McCloskey was a key figure in imposing such orders.
Sheila Gupta
101. The Tribunal found the evidence of Sheila Gupta, formerly the Director of
25
Human Resources to be most instructive. For example, Sheila Gupta freely
admitted that she played a material role in the termination of the claimant’s
employment but that she took no steps in the period 2010 to 2012 to
investigate whether or not the claimant was a disabled person in terms of the
Equality Act 2010. To this end, she was in receipt of the sick notes covering
30
the period of the claimant’s absence which articulated the reasons for
absence as stress and depression.
S/4102702/12 & 4107069/12 Page 30
102. Sheila Gupta admitted that whilst playing her material role in the termination
of the claimant’s employment she made no reference to the respondents’
own disability policy and admitted under oath that this was a fundamental
omission on her part.
5
103. Sheila Gupta admitted that the claimant’s correspondence and in particular
her letter of 31st March 2010 (152 CBD) could be considered as a written
grievance but admitted that she had never treated it as such or indeed
invoked the respondents’ own grievance policy.
10
104. The reason given by Sheila Gupta for not invoking the grievance policy was
that the claimant was unwell and she did not consider that the claimant would
want to go through the grievance procedures. However, she never made
enquiries from the claimant directly about whether she did want to pursue a
grievance.
15
105. Sheila Gupta admitted that she was the author of a document recovered
under a Subject Access Request to be found at page 594-595 CBD. She
stated in evidence that she wrote this document in October 2011. As regards
the content of this document, she admitted that on reflection she should have
20
written to the claimant on the alternative routes to continue to extend her stay
in the UK, as outlined in the document. Sheila Gupta admitted that in the
section of that document headed “Additional Points” she drew adverse and
negative conclusions about the claimant without bothering to contact her and
enquire as to the issue on how she was supporting herself during her unpaid
25
leave.
106. Sheila Gupta gave evidence that she dismissed the claimant without
considering other options under the respondents Disability Policy as she was
of the view of the claimant was only interested in a settlement with the
30
respondents. However, there was no evidence to support the proposition that
settlement discussions with the claimant ever came close to fruition. Further,
in evidence, Sheila Gupta admitted that the claimant never expressed the
S/4102702/12 & 4107069/12 Page 31
view that she wished to relinquish her position as the Chair of PetroChemical
Engineering. In considering this issue the Tribunal concluded that there was
no factual basis to support the proposition that the claimant wished to leave
the employment of the respondents.
5
107. In these circumstances the Tribunal considered why Sheila Gupta was of the
view that the claimant should be dismissed without looking at alternatives. In
answering this question, the Tribunal looked to the evidence of Sheila Gupta
that the claimant’s grievances were never progressed due to her ill health.
From this the Tribunal concluded that there was a view among the
10
respondents that the claimant was never going to return to the employment of
the respondents and therefore there was no need to resolve the situation
between employer and employee. The view that the claimant was never
going to return to the employment of the respondents due to her health was
reflected in the material part played by Sheila Gupta in terminating the
15
claimant’s employment without consideration of other options (as freely
admitted by her in evidence).
108. Sheila Gupta admitted that in dismissing the claimant the respondents did not
follow the ACAS guidance.
20
109. As with the evidence of Dr Don Glass on occasions Sheila Gupta attempted
to retract her frank admissions but was unable to do so in any plausible
manner.
25
Professor David Ingram
110. In their submissions the respondents stated that in the course of Professor
David Ingram’s evidence the Tribunal suggested that his evidence was
incorrect, even untruthful and that this was indicative of the Tribunal
30
predetermining an important issue in the claim (paragraph 91 and 92 of
submissions).
S/4102702/12 & 4107069/12 Page 32
111. The Tribunal are unanimous in observing that the respondents’ submissions
are factually incorrect on this point. The intervention by the Tribunal (which
was made after an adjournment to consider the issue) was out of concern
that there had been collusion between witnesses. The response of Professor
David Ingram to the comments by the Tribunal was such to allay those
5
concerns.
Professor Lesley Yellowlees
112. The Tribunal heard robust evidence from Professor Lesley Yellowlees that the
10
decision to dismiss the claimant was hers and hers alone. However, this
evidence contradicted the evidence of Dr Kim Waldron that the decision to
dismiss the claimant was that of the Principal, Professor Sir Timothy O’Shea
and that Dr Kim Waldron acted at all times on his instructions.
15
113. The Tribunal believed the evidence of Dr Kim Waldron rather than the
evidence of Professor Lesley Yellowlees for two reasons- firstly, Dr Kim
Waldron is no longer in post – she left her position with the University of
Edinburgh on 8 March 2013 and is now living in the USA. Secondly, it is clear
from the evidence of June Bell that Dr Kim Waldron was materially involved in
20
the events leading to the claimant’s dismissal. There is no such supporting
evidence in respect of the involvement of Professor Lesley Yellowlees at that
time.
114. The Tribunal concluded that Professor Lesley Yellowlees chose to be
25
untruthful in this respect due to her continuing employment with the
respondents as Vice Principal, Professor Sir Tim O’Shea being the Principal
in post at the time of the Tribunal hearing.
Professor Sir Timothy O’Shea
30
115. The Tribunal considered it worthy of observation that Professor Sir Tim
O’Shea, an individual who had significant involvement with the claimant and,
S/4102702/12 & 4107069/12 Page 33
furthermore, the individual who the Tribunal found to be the decision maker in
the claimant’s dismissal was not called as a witness by the respondents.
Objective Justification
5
116. Finally, the Tribunal considered it worthy of observation that the respondents
led no evidence on the issue of objective justification in respect of the claim
brought forth by the claimant under s15 of the Equality Act 2010.
The Law
10
Direct discrimination
117. Section 13 of the Equality Act 2010 (“the Equality Act”) provides that direct
discrimination occurs where a person treats another less favourably than he
15
treats or would treat others because of a protected characteristic. It is not
necessary to point to an actual person who has been more favourably
treated, although how others have in fact been treated may be relevant
evidence from which an inference of discrimination may be drawn. The
tribunal should construct, if necessary, a hypothetical comparator whose
20
relevant circumstances are not materially different to the claimant’s except for
the protected characteristic.
118. Tribunals do not have to construct a hypothetical comparator if they are able
to make findings as to the “reason why” the treatment occurred without doing
25
so. This is clear from the cases of Shamoon v Chief Constable of the RUC,
Stockton on Tees Borough Council v Aylott and Law Society and Others v
Bahl 2003 IRLR 640.
119. The protected characteristic need not be the only reason for the treatment
30
(Owen and Briggs v James 1982 ICR 618; O’Neill v Governors of St Thomas
More Roman Catholic School )
S/4102702/12 & 4107069/12 Page 34
Disability status
120. Section 6 of the Equality Act provides that a person has a disability for the
purposes of that Act, if she has a physical or mental impairment and the
impairment has a substantial and long term adverse effect on her ability to
5
carry out normal day-to -day activities. Schedule 1 to the Act provides further
clarification and there is Statutory Guidance on the Matters to be taken into
account in determining questions relating to the definition of disability. This
Guidance came into effect on 1 May 2011 under enabling regulations (SI
2011/1159). While the Guidance dos not have legal effect, it must be taken
10
into account by tribunals determining this issue.
Duty to make reasonable adjustments
121. Section 20 of the Equality Act provides as follows:
15
“Where this Act imposes a duty to make reasonable adjustments on a
person, this section, sections 21 and 22 and the applicable Schedule
apply; and for those purposes, a person on whom the duty is imposed is
referred to as A.
20
123. The duty comprises three requirements (of which the first is relevant to this
case.) The first requirement is a “requirement, where a provision, criterion or
practice of A's puts a disabled person at a substantial disadvantage in
relation to a relevant matter in comparison with persons who are not
25
disabled, to take such steps as it is reasonable to have to take to avoid the
disadvantage.”
124. Section 21 provides that a failure to comply with the first requirement is a
failure to comply with a duty to make reasonable adjustments and that A
30
discriminates against a disabled person if A fails to comply with that duty in
relation to that person.
S/4102702/12 & 4107069/12 Page 35
125. Further provisions in Schedule 8 Part 3 provide that the duty is not triggered if
the employer did not know, or could not reasonably be expected to know that
the claimant had a disability and that the provision, criteria or practice (“PCP”)
is likely to place the claimant at the identified substantial disadvantage.
5
Discrimination arising from disability
126. Section 15 of the Equality Act provides:-
(1)
A person (A) discriminates against a disabled person (B) if—
10
(a) A treats B unfavourably because of something arising in
consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of
15
achieving a legitimate aim.
(2)
Subsection (1) does not apply if A shows that A did not know,
and could not reasonably have been expected to know, that B had
the disability.
20
127. Guidance on how this section should be applies was given by the EAT in
Pnaiser v NHS England UKEAT/0137. In that case it is pointed out that
“arising in consequence of” could describe a range of causal links and there
may be more than one link. It is a question of fact whether something can
25
properly be said to arise in consequence of disability. There is no need for
the alleged discriminator to know that the “something” that causes the
treatment arises in consequence of disability. The requirement for knowledge
is of the disability only.
30
S/4102702/12 & 4107069/12 Page 36
Victimisation
128. Section 27 of the Equality Act provides for another type of prohibited conduct,
namely victimisation. This is where someone (A) subjects another (B) to a
detriment because B has done a protected act, or A believes B has done a
5
protected act.
129. A protected act includes making an allegation (whether or not express) that A
or another person has contravened the Equality Act.
10
130. A’s motivation may be subconscious. The key question is why B was treated
in the way she was. The protected act need not be the only reason for the
detrimental treatment but it must have a “significant influence” on the decision
to act in that way. (Nagarajan v London Regional Transport 1991 ICR 877.)
“Significant” means “more than trivial”. (Igen v Wong 2005 ICR 931)
15
Burden of proof under the Equality Act
131. Section 136 of the Equality Act provides for a shifting burden of proof. It is
firstly for the claimant to prove facts from which a tribunal could decide that
20
there has been a contravention of the Equality Act. This is often done by
drawing inferences from the established facts. If she succeeds in doing that,
then the burden shifts to the respondent to prove that the reason for the
treatment is not one prohibited by the Act. The respondent does not have to
justify the treatment or show that it acted reasonably, although such matters
25
may go to the credibility of the reason put forward.
Unfair dismissal
132. The Employment Rights Act 1996 (the “ERA”) sets out the right not to be
30
unfairly dismissed. It is for the respondent to prove that it had a potentially fair
reason for dismissal in terms of section 98(1). In the present case it is
S/4102702/12 & 4107069/12 Page 37
contended that the reason is “some other substantial reason” justifying
dismissal.
133. If the Tribunal is satisfied there is a potentially fair for dismissal, it must then
assess whether in the circumstances (which includes the size and
5
administrative resources of the respondent) the decision to dismiss for that
reason was fair or unfair. Section 98(4) provides that the determination of
whether the dismissal is fair or unfair shall be determined in accordance with
equity and the substantial merits of the case.
10
134. This test of fairness is really one of reasonableness and the law recognises
that different employers acting reasonably may make different decisions
based on the same circumstances. It is not for the Tribunal to decide whether
it would have dismissed for that reason. That would be an error of law as the
Tribunal would have “substituted its own view” for that of the reasonable
15
employer. Rather the question for the Tribunal is whether the decision to
dismiss (including the procedure adopted) fell within the “range of reasonable
responses” open to a reasonable employer. If so, the dismissal is fair. It is
only if the decision to dismiss falls outside that range that the dismissal is
unfair. (See for example, Iceland Frozen Foods Ltd v Jones 1983 ICR 17).
20
135. A failure to follow a fair procedure may cast doubt on the reason for dismissal
or may, in itself, mean that the decision to dismiss was not reasonable.
However, the Tribunal must assess the overall fairness of the procedure and
not merely whether there was a failure to comply with a contractual
25
procedure or the ACAS Code.
Holiday pay
136. An employee is entitled under the Working Time Regulations 1998 to
30
payment of accrued but untaken annual leave where employment is
terminated. Regulation 13(9) of the Regulations provides that annual leave
may only be taken in the leave year in respect of which it is due. That
S/4102702/12 & 4107069/12 Page 38
provision, however, must now be read in the light of the case law of the Court
of Justice of the European Union (see NHS Leeds v Larner [2012] ICR 1389).
So where an employee is on sick leave during the leave year, that employee
may be entitled to take annual leave accrued in respect of one year in a later
year. In Plumb v Duncan Print Group Ltd UKEAT 0071/15, the Employment
5
Appeal Tribunal decided that EU law did not confer an unlimited right to carry
over periods of annual leave to subsequent years. The Directive, at most,
only required that employees on sick leave were able to take annual leave
within a period of 18 months of the end of the leave year in respect of which
the annual leave arose. Consequently, Regulation 13(9) of the Regulations
10
was to be read as permitting a worker to take annual leave within 18 months
of the end of the leave year in which it was accrued where the worker was
unable or unwilling to take annual leave because he was on sick leave and,
as a consequence, did not exercise his right to annual leave.
15
Claimant’s submissions
137.
The claimant’s submissions were, in summary, as follows:
Is the claimant a disabled person?
20
138. It is something of a surprise that this is still an issue when Dr Scott’s report
concluded that the claimant was a disabled person since at least October
2010. While this is a matter for the tribunal, all the evidence points to the
correctness of that conclusion.
25
139. The claimant’s depression was treated with medication before August 2010
and therefore the deduced effects have to be taken into account.
140. The tribunal is invited to conclude that the claimant was a disabled person
30
from October 2010 suffering from a mental impairment namely a depressive
and anxiety disorder.
S/4102702/12 & 4107069/12 Page 39
141. In the unlikely event that the tribunal concludes that the claimant was not a
disabled person, the evidence of Gupta makes clear that the respondent
treated her as if she were and this comes under the definition of
discrimination by perception.
5
142. The respondent plainly had knowledge of the claimant’s disability as a matter
of fact as defined by her absence and the sick notes and the perception
referred to above.
The complaints under the Equality Act
10
143. The claimant asserts direct discrimination on grounds of her sex;
victimisation; section 15 discrimination (arising from disability) and failure to
make reasonable adjustments.
15
Failure to make adjustments
144. It is submitted that the PCP is the respondent’s requirement that the claimant
attend work and fulfil her role.
20
145. That PCP put the claimant at a substantial disadvantage.
146. It was reasonable for the respondent to take the following steps:
to apply its procedures in respect of sickness absence and
25
specifically its disability policy
to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy
to ensure that the claimant’s immigration status (which was intimately
intertwined with her employment status) would not be compromised
30
by her absences and to take all reasonable steps to ensure that the
claimant would not be at risk of losing her lawful working statue’s
S/4102702/12 & 4107069/12 Page 40
to maintain the claimant’s pay when absent through illness and to
keep non-payments under review
to reintegrate the claimant into work
to contact the claimant’s GP in order to assess the claimant’s fitness
and ability to return to work
5
to commission expert medical advice in respect of the claimant’s
condition, prognosis and return to work
to provide a brief to the claimant as a condition precedent to the
claimant being seen by the respondent’s occupational health
advisers
10
to avoid dismissing the claimant
to consider moving the claimant to a different place of work outside
the school of engineering
engaged with the claimant in respect of her work permit status fully
informing her of options with a view to ensuring the claimant’s work
15
status was not lost at the expiration of her 5 year work permit
creating a new role for the claimant if necessary
engaged with the claimant in respect of the potential of and warned
and informed the claimant of the removal of her laboratory
engaged with the claimant in respect of the potential of and warned
20
and informed the claimant of the removal of her duties as PHD
supervisor for Emad
Section 15 complaint
25
147. It is submitted that the section 15 complaint applies to all matters referred to
under the submissions on reasonable adjustments.
148. Specifically, it is submitted that the claimant’s absence and all matters related
to it caused the respondent to:
30
Dismiss the claimant
S/4102702/12 & 4107069/12 Page 41
Not to address the issue of the claimant’s work permit and seek a
perfectly lawful and legitimate extension thereto
Failed to take steps to apply its own procedures
149. All of these matters involved unfavourable treatment, they arose out of the
5
claimant’s disability as she was absence from January 2010.
150. There can be no legitimate aim in what the respondent did.
151. In any event, a failure to make a reasonable adjustment which would have
10
abolished or minimised the unfavourable treatment, then it is difficult to see
how there can be objective justification.
Gender discrimination
15
152. All the matters under reasonable adjustment and the section 15 claims apply
equally to the direct gender discrimination claim. Specifically, the claimant’s
focus is on:
The removal from her lab and supervision for Emad.
20
Dismissal
153. A desire to avoid looking into the claimant’s complaints and in effect to see
the back of the claimant is intrinsically linked to the claimant’s gender.
25
154. There is no reason for a hypothetical comparator to be constructed when the
ET can make findings on the reason why the claimant received the treatment
(relying on Shamoon).
Victimisation
30
155. All matters under reasonable adjustments, section 15 and gender
discrimination apply equally to the victimisation complaint.
S/4102702/12 & 4107069/12 Page 42
156. The claimant unquestionably did numerous protected acts including alleging
she was disabled.
157. Again the fact of the claimant’s ongoing complaints and reference to historical
5
complaints materially influenced the respondent’s mind in taking the course
and that is sufficient for the claimant to succeed in her claims for
victimisation.
158. There is an additional matter relating to the 23/1/12 meeting with Sir Tim
10
O’Shea as set out in Waldron’s witness statement at paragraph 43. This
plainly was threat to the claimant and was an act of victimisation.
Unfair dismissal
15
159. This can be taken very quickly. No procedure was followed concluding with
no right of appeal being afforded. The ACAS code was ignored. The decision
cannot possibly be fair. The claimant seeks a finding of unfair dismissal and a
finding that the respondent unreasonably failed to follow the ACAS Code.
20
Holiday pay
160. The claimant has not been paid in accordance with the 18 month decision in
Plumb. There is no defence to this claim.
25
Notice Pay
161. This was not paid and it should have been paid. There is no defence to the
claim. The respondent objects to the amendment application. These
objections miss the point. Ms Gupta accepted that notice pay should have
30
been made but was not. That is the respondent’s evidence. It is impossible to
see how the respondent is prejudiced by this matter. The respondent has
never said that the claimant was in repudiatory breach of contract and she
S/4102702/12 & 4107069/12 Page 43
was not cross-examined on this. The obligation is on the respondent to justify
why notice was not paid and its witness has admitted the claim. The
suggestion that the claimant should take her claim to another forum involving
more expense and judicial time is unrealistic and unreasonable. The matter
should be dealt with here. Indeed the fact of non-payment illuminates the
5
respondent’s approach to dismissing the claimant and running roughshod
over her rights. This is factually relevant to the claims under the Equality Act.
Respondent’s submissions
10
162. The respondent’s submissions in summary are as follows:
163. The claimant has not been discriminated or victimised under the Equality Act.
Sex discrimination
15
164. The claim of direct sex discrimination is without foundation. The claimant has
not identified a comparator. She was not treated less favourably than any
hypothetical comparator.
20
165. Specifically, the alleged failure to provide research facilities. At all times the
respondent took reasonable steps to remedy difficulties in relation to
technical support and that difficulty was resolved. Responsibility for delay lies
with both the claimant and the respondent and the delay was not related to
the claimant’s gender.
25
166. Reduction of pay to half-salary was in accordance with the policy of the
respondent and there is no evidence that it was applied in a discriminatory
manner.
30
167. The claimant alleges that less qualified male colleague were preferred to her
in relation to decisions regarding the laboratory in late 2011. Dr Glass was
suitably qualified to advise on the steps that were necessary to allow Mr
S/4102702/12 & 4107069/12 Page 44
Alhseinat (the PhD student for which she had responsibility) to continue to
carry out his research. Mr Alhseinat was able to carry out his research
successfully thereafter. The claimant’s conduct throughout her employment
and throughout these proceedings demonstrates a pattern of unwillingness to
accept that others had the authority to make decisions about the use to which
5
the respondent’s facilities should be put and to accept that others albeit not
sharing the same speciality as the claimant had the technical knowledge and
expertise to be able to make properly informed decisions on those matters.
The respondent did not treat the claimant unfavourably because of her
gender.
10
168. The laboratory space was needed for other colleagues in late 2011. Only the
PhD student was using the space. He was able to continue using it following
some adjustments that were the subject of advice from Don Glass.
15
169. The claimant was replaced as supervisor because the PhD student had no
supervisor on campus. His second supervisor was abroad and was due to
leave the respondent altogether. At the time the claimant had been absent for
nearly two years. The individuals involved in decisions about this matter and
in the continued supervision of the student were entirely qualified to do so.
20
The respondent had a duty of care to the student to ensure that he was
properly supervised so that he had an opportunity to conclude his research
successfully and also in relation to practical matters such as health and
safety in his working environment.
25
170. The claimant was not treated unfavourably because of her gender in relation
to the ending of her employment. Her employment ended because she no
longer wanted to fulfil the duties of Chair of Chemical Process Engineering.
By virtue of the operation of immigration law, any new position had to be
advertised so that the respondent complied with its duty to ensure that a post
30
for which a settled employee was qualified was not filled by a non-EEA
migrant. The claimant’s work permit came to an end and it would thereafter
have been an offence to employ her.
S/4102702/12 & 4107069/12 Page 45
Victimisation
171. The claimant alleges detriment in relation to changes to the laboratory, in
relation to the allocation of another supervisor to Mr Alhseinat and in relation
5
to the termination of her employment on termination of her work permit. The
reasons for these decisions are set out in summary above. There is no
foundation for the proposition that she was victimised in these respects.
Disability discrimination
10
172. The respondent disputes that the claimant has established that she was a
disabled person at the material times. If she was so disabled, the respondent
did not know and could not reasonably have bene expected to be aware that
she was disabled. During her absence from work the claimant continued to
15
supervise Mr Alhseinat and to carry out a range of activities described above.
The claimant repeatedly failed to engage with occupational health services
despite numerous requests to do so. She inhibited the ability of the
respondent to discover whether she was disabled and what reasonable
adjustments might have been made.
20
173. In relation to the claim under section 15, the claimant again focuses on the
decision relating to the lab and Mr Alhseinat. The high point of the claimant’s
case is that these took place while she was absent from work. The
respondent does not accept that the claimant was disabled.
25
174. These decisions did not arise from the claimant’s disability (if she was
disabled). They arose because of a need for laboratory space and the need
to ensure that the student was properly supervised. They were therefore
decisions taken in pursuit of a legitimate aim and on a proportionate basis.
30
175. The issuing of notice was not unfavourable treatment arising in consequence
of her disability. The reason for termination has already been set out. Further
S/4102702/12 & 4107069/12 Page 46
the respondent pursued the legitimate aim of complying with immigration law
and did so in a proportionate manner.
176. In relation to adjustments, there is reference to unspecified “adjustments
requested”. The claimant wanted to leave her position and it was not
5
possible, consistently with immigration law, to comply with a request to that
effect.
177. For the same reasons the claimant’s dismissal did not arise in consequence
of her disability. She was dismissed so that the respondent did not breach
10
immigration law. There was no reasonable adjustment that the respondent
could have made in the circumstances. The respondent consulted as
extensively with the claimant as was practicable in the circumstances.
Particular reference is made to the correspondence and meetings involving
the claimant; Kim Waldron and Lesley Yellowlees in 2011. The claimant
15
frustrated efforts by the respondent to investigate whether she was disabled
and if so what adjustments could be made by her repeated refusals to
engage with occupational health advisers.
178. The tribunal should conclude that the claimant wanted to change jobs within
20
the University of Edinburgh. It should reject the claimant’s contention that she
wanted only to be rehabilitated in a different setting while staying in the same
position. The respondent could not provide her with a different position
without contravening the immigration laws then in force. It had no option but
to terminate her employment when her work permit expired.
25
Unfair dismissal
179. The reason for the claimant’s dismissal is as set out above. If the respondent
had continued to employ her after her work permit had expired, it would have
30
been breaching immigration law. There would have been serious and
adverse consequences for the resident in the form of criminal liability and
withdrawal of its status as a sponsor. It had a potentially fair reason to
S/4102702/12 & 4107069/12 Page 47
dismiss the claimant. The respondent gave the claimant ample notice in
correspondence as to the consequences of her work permit expiring. There
was nothing more that the respondent could have done by way of procedure.
The procedure was fair. The claimant knew why her employment was being
terminated and she had the opportunity to make representations. In face of
5
the claimant’s refusal to continue with her duties as Chair of Chemical
Process Engineering, no additional or alternative procedure would have
made any difference to the outcome. The claimant intimated that she did not
wish to return to her position and did not state otherwise despite numerous
opportunities to do so. In all the circumstances it was reasonable for the
10
respondent not to adopt any additional or alternative procedure. The
respondent acted reasonably in treating the reason as sufficient reason to
terminate the claimant’s employment. Further and in any event, the
respondent genuinely and reasonably believed that such a breach would
occur on expiration of the work permit. The respondent genuinely and
15
reasonably believed that the claimant was refusing to carry out her
contractual duties. Dismissal was for some other substantial reason.
180. Dismissal was inevitable regardless of what procedures might have been
followed.
20
181. The claimant materially contributed to her dismissal. She refused to co-
operate in that she failed to engage with occupational health service and
failed to reply to correspondence which focussed on the consequence of the
expiry of her work permit.
25
182. It is submitted that the tribunal should conclude that the claimant is and was
predisposed to treat any disagreement or suggestion with which she
disagrees as a challenge to her authority and professionalism when it is
nothing of the kind.
30
S/4102702/12 & 4107069/12 Page 48
183. Even if the claimant was disabled and the respondent had the requisite
knowledge of that there was no adjustment that the respondent could make
in the face of the claimant’s position. As she wanted to leave her position
there was nothing to be done. The suggestion as to advice is misconceived.
It is an offence for someone who is not registered with OISC or with a body
5
such as the Law Society of Scotland to provide immigration advice.
184. Any incident or failure to make reasonable adjustments which occurred before
the dates of lodging of the claims should be excluded from consideration as
time-barred, excluding any incident or failure that occurred more than three
10
months before the lodging of the ET1.
185. On 31 January the claimant wrote to Angi Lamb of UCU suggesting male
comparators. The idea that she was being discriminated against because of
the gender had crystallised in her mind by that time at the latest. Any claim
15
made more than three months thereafter of gender discrimination is time-
barred. Also the claimant wrote to the Principal on 14 April 2010 alleging
gender discrimination. The same point arises.
186. The claimant’s pay reduced in June 2010. Her claim in relation to that matter
20
is timebarred.
187. The claims are presented as complaints about discrete events rather than
about continuing acts and each incident or failure must be viewed separately.
25
Disability status
188. The respondent has at no time bound itself to accept the conclusions of Dr
Scott. There are two reports lodged with the papers but they have not been
spoken to and they are not evidence. The tribunal should simply ignore them.
30
The most that can be inferred from the instruction of a single psychiatrist is
that the respondent accepted that the effect of the tribunal’s decision that a
joint report be instructed was that only one psychiatrist would be instructed to
S/4102702/12 & 4107069/12 Page 49
examine the claimant. If the tribunal does not accept that submission, and
takes the view that it should treat the reports as evidence, the respondent
submits that the reports do not contain evidence on which the tribunal can
rely in reaching a view as to whether the claimant as disabled or not at the
material times. The following propositions can be drawn from case law:
5
189. The tribunal cannot be bound by Dr Scott’s conclusions. The question as to
whether the claimant was disabled is one fro the tribunal alone.
190. In evaluating Dr Scott’s report the tribunal should take particular care in
10
examining the strength of her reasoning and the nature of the information on
which se proceeded. It is the reasoning and not the conclusion of an expert
that has the potential to carry weight.
191. There are deficiencies in Dr Scott’s report. Her conclusions rely in large part
15
on information provided to her by the claimant and the history provided by the
claimant. The claimant is a dishonest and unreliable witness. She
demonstrated that in the course of her oral evidence to the tribunal. The
claimant was dishonest when she claimed to have a “glorious” career. Her
career had been marked by a judicial finding in Canada that she had been
20
dishonest. It has also included her being dismissed for serious misconduct.
Similarly, she is dishonest and unreliable in relation to the nature and extent
of any impairments from which she may have suffered during the period of
her employment. Dr Scott did not investigate with sufficient rigour the
question of the claimant’s ability to carry out normal day to day activities at
25
the material times. The respondent points to a lack of care in Dr Scott’s
report. Although the claimant was absent from work she kept up vigorous and
detailed correspondence with the respondent. That is hard to reconcile with
the impairments she claims. The claimant continued to supervise Mr
Alhseinat and indeed insisted on doing so. She attended a seminar in Algiers
30
in 2011 at which she presented a paper and chaired a session. She gave
evidence in Australian court proceedings in 2011 and represented that she
would be able to act as supervisor for Pranab Barua. She attended a Science
S/4102702/12 & 4107069/12 Page 50
Workshop in November 2011 and continued to publish papers. She attended
meetings are Harlow College where she was a member of the governing
body, between 2010 and 2012. Her activities are not consistent with
someone who claims to be disabled. There is no suggestion that Dr Scott
considered these activities critically before coming to a view about the
5
claimant’s impairments. The onus is on the claimant to establish that she was
disabled at the material times and she has failed to do so.
Decision
Scope of the Hearing
10
192. The tribunal considers it was clear that the hearing was only to determine
liability and approached it on that basis. Remedy will have to be determined
at a further hearing.
15
Victimisation
193. The tribunal finds that the claimant did a protected act on 14 April 2010 and
that the claimant was subjected to a detriment in a number of instances
because she had done that protected act. Specifically, after the meeting on
20
15 February 2011, the claimant was regarded by a number of colleagues in
the School of Engineering as an individual to be distrusted and disliked. The
respondent issued an instruction that no contact was to be made with the
claimant other than through her solicitors. This meant that when it was
decided that the claimant was to be replaced as supervisor for Emad
25
Alhseinat and when it was decided that laboratory space would be allocated
to others, these decisions were not communicated to her. The tribunal has
found as a fact that the failure to communicate the decisions was because
there was an instruction not to contact the claimant and that instruction came
about because the claimant had done a protected act.
30
S/4102702/12 & 4107069/12 Page 51
194. However, the tribunal did not consider that these decisions themselves were
influenced by the allegations of discrimination that had been made by the
claimant. The respondent appointed another supervisor for Mr Alhseinat
because it did not expect the claimant to return to work and it had a duty to
assist the student to complete his PHD. There was a need for a supervisor to
5
be present for health and safety reasons. The lab space was reallocated due
to the operational needs of the respondent.
Direct sex discrimination
10
195. As is evident from the findings in fact, the Tribunal finds that the treatment of
the claimant during her employment with the respondent was not because of
her sex. There was a mismatch of expectations between the claimant and the
respondent as to what each expected from the claimant in her role as a
Professor within the School of Engineering and miscommunication between
15
the parties involved. This was found by the Tribunal to be because of a
difference in culture and expectation, specifically the shared collective of
academia within the UK by the incumbents in the School of Engineering and
the fact that the claimant had no experience of UK academia. As the tribunal
was able to make positive findings as to the “reason why” the alleged less
20
favourable treatment took place, and that this was not the claimant’s gender,
there is no need to consider further the shifting onus of proof. The claim of
sex discrimination is dismissed.
Unfair dismissal
25
196. The tribunal considered that the respondent had a potentially fair reason for
dismissal which was a belief that the claimant could no longer legally
continue to work in the UK. However, the tribunal considered that dismissal
for this reason was not within the band of reasonable responses because of
30
the procedure adopted. It is true that the claimant did not co-operate with the
respondent’s requests to attend occupational health or to obtain independent
medical advice. However, the respondent simply stopped pursuing that
S/4102702/12 & 4107069/12 Page 52
course when it realised that the claimant’s work permit was shortly to expire.
The tribunal considered that once the issue of the work permit was raised, no
further attempts were made to explore the options that might have allowed
the claimant to stay in the UK or to engage with the claimant about her
medical condition or whether she could return to work. They didn’t offer a
5
meeting to discuss the termination nor did they offer an appeal. They had not
followed their own disability policies or the ACAS Code of Practice. The
respondent acted on an adverse and negative assumption that the claimant
had taken on secondary employment without bothering to check the true
position. They did not follow their own grievance policy when the claimant
10
lodged a grievance with Kim Waldron in May 2011. In these circumstances,
the tribunal concludes that the claim of unfair dismissal succeeds.
Disability
15
197. The tribunal considers it is established that from January 2010 that the
claimant was a disabled person in terms of the Equality Act. The tribunal did
not base this on the content of Dr Scott’s report as it considered this report
had not been introduced into evidence. Although it was a jointly instructed
report, the respondent did not accept its findings and Dr Scott did not attend
20
the hearing. She did not speak to the report and the respondent did not have
the opportunity to cross-examine her on its findings. The tribunal therefore
took no account of it. The claimant gave unchallenged evidence that she had
been diagnosed with anxiety and depression and the tribunal was satisfied
were this was a mental impairment. The condition was clearly long-term. The
25
tribunal had to consider whether the impairments had a substantial long-term
adverse effect on the claimant’s ability to carry out normal day to day
activities. There was evidence that the claimant had been carrying out other
activities at this time, such as traveling, lecturing and attending conferences
and the tribunal was invited by the respondent to conclude that this meant the
30
claimant could do normal day-to day activities. However, the claimant gave
evidence, again unchallenged, that she was unable to do activities such as
exercise and shopping and that she had no social life. The Statutory
S/4102702/12 & 4107069/12 Page 53
Guidance on the definition of Disability (2011) stresses that it is important to
consider the things that a person cannot do, or can only do with difficulty
(B9). This is not offset by things that the person can do. The tribunal also
considered it relevant that the claimant was on medication during the relevant
period and that the effect of the impairment was likely to have been more
5
substantial if she had not had that medication. The tribunal therefore
concluded that the impairment did have a substantial adverse effect on the
claimant’s ability to carry out normal day to day activities and that the
claimant was a disabled person.
10
Knowledge of disability
198. The tribunal considered that the respondent did know that the claimant was a
disabled person by 14 April 2010 when she wrote to Sir Tim O’Shea and
stated that the issues at work were “severely and adversely “impacting on her
15
health. Sick notes were also received from 2010 to 2012 which stated the
reason for absence was stress and depression. The claimant was absent for
a significant period of time. The respondent did not follow its own procedure
in its disability policy to establish if the claimant was disabled. Therefore, if
they did not, in fact, know she was disabled, they could reasonably have
20
been expected to have known.
Reasonable adjustments
199. It is important in a claim for failure to make reasonable adjustments to follow a
25
structured approach. The first consideration is whether the respondent
applied a PCP that the claimant should attend work at the School of
Engineering. The tribunal were satisfied that it did.
200. The second question is whether that PCP placed the claimant at a substantial
30
disadvantage because of her disability. The tribunal found this a difficult
question. It is possible that the claimant found it difficult to work in the School
of Engineering, because she believed that she had been discriminated
S/4102702/12 & 4107069/12 Page 54
against or because her colleagues may have been hostile to her on her
return. However that is not a relevant disadvantage for the purpose of a
reasonable adjustments complaint. The claimant has to prove facts from
which the tribunal could conclude that the claimant would be placed at a
substantial disadvantage by that PCP because of her disability. The lack of
5
medical evidence was a problem. The tribunal could speculate about whether
there was a potential disadvantage to someone with the claimant’s disability
but there was no evidence of that before the tribunal. Further, the claimant’s
submissions did not address what the disadvantage was said to be. There is
merely a bald statement that “That PCP put the claimant at a disadvantage
10
substantial disadvantage”. If it is unable to make a clear finding of what the
substantial disadvantage is and that this was because of the claimant’s
disability, it is simply impossible for a tribunal to assess whether the duty
arose at all, whether the respondent knew (or should have known) of the
disadvantage and whether the proposed adjustments were reasonable for the
15
respondent to have to take to avoid that disadvantage.
201. In these circumstances, the tribunal considers that the claim for failure to
make reasonable adjustments is not established and is dismissed.
20
Discrimination arising from disability
202. The first question is whether there was unfavourable treatment arising in
consequence of the claimant’s disability and if so, was that justified.
25
203. The unfavourable treatment is said to be:
Dismissal
Failure to address the claimant’s work permit and seek an
extension
30
Failure to apply the respondent’s own procedures.
S/4102702/12 & 4107069/12 Page 55
204. The tribunal does not consider there is any evidence that would allow it to
conclude that the respondent did not seek an extension of the claimant’s
work permit because of her disability (or because of anything arising in
consequence of it such as her period of absence) nor that it failed to follow its
procedure because of her disability. On the contrary, the tribunal accepted
5
that the respondent believed that the claimant was not prepared to return to
work in the position for which the work permit had been granted and that, in
these circumstances, it believed that there was no possibility of the claimant’s
work permit being extended.
10
205. With regard to her dismissal, the claimant submits that she was dismissed
because she was absent and she was absent because of her disability and
this is therefore covered by section 15. If that were a true description of the
factual position, then that would be discrimination arising from disability.
However, the tribunal does not consider that the claimant was dismissed
15
because she was absent. She was dismissed because she was unwilling or
unable to return to work in her existing post and this triggered issues with her
work permit. In considering any causal connection, the tribunal is faced with
the same difficulty as it was when considering whether the duty to make
reasonable adjustments was triggered. There is no evidence before the
20
tribunal that there was a causal link between the claimant’s disability and her
refusal to return to her post in the School of Engineering. This was not a case
where the claimant was absent and unable to return to work because of her
disability. It appears that she was able to return to work (or at least was
asserting that she was) but that she would not return to her previous role
25
based in the School of Engineering. The critical question was whether that
was because of her disability or because of some other reason, such as she
considered she had been badly treated in that department. The tribunal
considers that there was insufficient evidence before it to make the
necessary link with her disability. The claim for disability arising from disability
30
is dismissed.
S/4102702/12 & 4107069/12 Page 56
Reduction in pay
206. It is suggested that it would have been a reasonable adjustment to maintain
the claimants pay during her absence and to keep it under review. As the
duty is not triggered in this case that has not been considered under that
5
head of claim. It is unclear whether it was also intended to form part of the
complaint under section 15. If it was, the tribunal considers it is out of time as
the reduction occurred more than 3 months before the complaint was
presented. The tribunal has not been invited to extend time but, for the
avoidance of doubt, it does not consider it is just and equitable to do so, not
10
least because no explanation has been given for the delay in raising that
complaint and because it considers that the claim has no real prospect of
success.
Holiday pay
15
207. The claim is based on the fact that the claimant was not paid any holiday pay
from the time of her incapacity in early 2010 and on termination was only paid
accrued holiday pay for the current year of 2012. The claimant submits that
there is no defence to such a claim based on Plumb v Duncan Print Group
20
Ltd. The respondent’s submissions do not address this point. In these
circumstances the claim for holiday pay succeeds with the amount payable to
be determined at the remedy hearing if it cannot be agreed between the
parties.
25
Notice pay
208. The claimant’s application to amend the claim to include a claim for notice
pay was refused at the start of the hearing as the respondent had not come
prepared to deal with the matter. The claimant applied for the decision to be
30
reconsidered on the grounds that the proceedings had been delayed and so
there was no disadvantage to the respondent. The claimant also submitted
that, as the respondent has accepted through its witnesses that the claimant
S/4102702/12 & 4107069/12 Page 57
should have been paid notice pay and she was not, there is no rational
reason why the application should be resisted.
209. The respondent contends that the claimant has not demonstrated that it
would be in the interests of justice that the decision to refuse the amendment
5
be reconsidered. The respondent’s position is that the claimant was in fact
given notice. Further the claims were brought in 2012 and only in 2015 did
the claimant seek to amend. The respondent’s witness statements did not
deal with a claim for notice pay because none was made. To carry out
investigations at this late stage would not be proportionate and not in
10
accordance with the overriding objective. At the time the claim was lodged
the claimant was represented by senior counsel and solicitors. If they failed to
include this complaint in the claim, the claimant’s remedy lies against them.
Further, the claimant has the option to raise the claim in another forum.
15
210. The tribunal’s decision is that it is not in the interests of justice to vary the
earlier decision. The application to amend came very late and there has been
no explanation for that delay. The claimant was legally represented when the
claims were presented, the claimant has another remedy in the civil court or,
potentially against her advisers. Further the claim is disputed and additional
20
evidence would be required. For all these reasons, the tribunal does not
consider it is in the interests of justice to vary its earlier decision and the
application is refused.
Further procedure
25
211. Once parties have had an opportunity to consider this decision a hearing on
remedy will be fixed. The administration will write to the parties in about 8
weeks time to canvass suitable dates for that remedy hearing unless they are
advised before then that parties have agreed remedy or that an appeal has
30
been intimated. Evidence may be adduced at the remedy hearing if it relates
specifically to remedy and only if no relevant finding has been made about
the matter in this judgment. The findings in fact in this judgment, so far as
S/4102702/12 & 4107069/12 Page 58
relevant will otherwise apply in connection with remedy. At the remedy
hearing the tribunal will require to be addressed on all matters relevant to
their determination of an appropriate remedy including whether any
compensation for unfair dismissal should be reduced because of contributory
conduct or because of the application of the principle in Polkey v AE Dayton
5
Services Ltd.
10
Employment Judge: Jane Porter
Date of Judgement: 15 March 2017
Entered in Register: 16 March 2017
and Copied to Parties
15
---
ETZ4(WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4102702/2012
Held in Edinburgh on 15th April 2019 and 15th May 2019
Employment Judge: Ms Jane M Porter
Members:
Mr Duguid
Ms Zwanenberg
Professor R Sheikholeslami
Claimant
Represented by:-
Mr Gorton QC
University of Edinburgh
Respondents
Represented by:-
Mr Reade QC
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
It is the Judgment of the Employment Tribunal:
(i) The claim of breach of the duty to make reasonable adjustments under the
provisions of sections 20 and 21 of the Equality Act 2010 succeeds in part;
(ii) The claim of discrimination arising from disability under section 15 of the
Equality Act 2010 succeeds in part;
(iii) The additional claims of victimisation under the provisions of section 27 of the
Equality Act 2010 are dismissed;
(iv) The additional claims of sex discrimination under the provisions of section 13
of the Equality Act 2010 are dismissed;
(iv) The claimant’s application to amend the ET1 is refused.
4102702/12 Page 2
1.
In these proceedings the claimant brings claims of sex discrimination, disability
discrimination, unfair dismissal and holiday pay. The claimant also claims
victimisation.
2.
There was a full Hearing on the Merits in the matter between the 14th of September
2015 and 29th of April 2016. By Judgment dated 15th of March 2017 the claimant’s
claims of sex discrimination, failure to make reasonable adjustments and
discrimination arising from disability were dismissed. The claimant’s claims of
victimisation, unfair dismissal and holiday pay succeeded.
3.
The case was appealed. In terms of a Judgment handed down on the 5th October
2018 (the Honourable Mrs Justice Simler DBE, President) the appeal succeeded in
part. An Order dated the 31st of October 2018 was thereafter issued by the EAT.
That Order stated:
“THE TRIBUNAL ORDERS
1. The Appeal be allowed in part and the following issues are remitted to
the same Employment Tribunal for rehearing:
(a) The Appellant’s claims that the respondent failed to make
reasonable adjustments contrary to section 20 of the Equality Act
2010 (“EqA”); paragraph 200 of the Employment Tribunal
Judgment being set aside;
(b) The Appellant’s claims that she was discriminated against
contrary to section 15 of the EqA; paragraphs 204 to 206 of the
Employment Tribunal Judgment being set aside;
(c) The Appellant’s other claims of unlawful sex discrimination and
victimisation contrary to the EqA (other than the allegation a threat
4102702/12 Page 3
was made by the Principal of the respondent on 23rd January
2012), those claims being as set out in the Schedule to the
Appellant’s closing submissions before the Employment Tribunal.
2. The Appellant’s remaining Grounds of Appeal are dismissed.
3. The remitted matters shall be remitted to the same Employment Judge
and two new lay members if practicable for rehearing. The scope of the
rehearing is to be determined by the Employment Tribunal so
constituted.” (Bundle 3, pages 37-39).
4.
The Order of 30st October 2018 stated: “Reasons (4) I consider that this is a case
where there is unfinished business to be done. The Employment Tribunal rehearing
this case may consider that the original Employment Tribunal was not provided with
all the necessary evidence or information to reach conclusions, either because the
issues were not clearly identified, or for some other reason. It may consider that
further evidence is necessary to enable it to do so. I agree with the Respondent that
the Employment Appeal Tribunal should not fetter the discretion of the Employment
Tribunal in this respect. The scope of the rehearing should therefore be determined
by the Employment Tribunal to which the remaining issues are remitted. It will be for
that Employment Tribunal to determine what (if any) further evidence can be
adduced, and how the rehearing should proceed.”
5.
Following the Order of the 31st October 2018 there were Preliminary Hearings in the
matter on the 18th of December 2018, the 20th February 2019 and the 28th February
2019. At the PH on the 18th December 2018 the case was set down for a Hearing
on the remitted issues on liability on the 28th February 2019. It was recorded in the
Note issued following that PH that: “5 It was agreed that further Findings in Fact
require to be made in order to determine the remitted issues.” The Hearing on the
28th February 2019 was postponed due to outstanding issues regarding the
existence or otherwise of a transcript of the Hearing on Liability. At the Hearing on
the 18th December 2018 the 15th of April 2019 was listed as a PH on Case
Management on the issue of remedy as a precursor to a 5 day Hearing on remedy
4102702/12 Page 4
between the 15th and 19th July 2019. At the PH on the 28th February 2019 it was
agreed that the PH listed for the 15th April 2019 should be converted to a Hearing
on liability.
6.
After consideration of the parties’ submissions on the 15th April 2019 the Tribunal
has made the undernoted additional Findings in Fact which it concluded required to
be made in order to determine the remitted issues.
7.
In making the additional Findings in Fact, the Tribunal referred to the three Bundles
of Documentation that were before it at the Hearing on the 15th April 2019 and were
numbered Bundle 1, Bundle 2 and Bundle 3.
8.
THE ISSUES
The parties have produced an Agreed List of Issues which is replicated below in
the exact terms in which it was submitted to the Tribunal, including numbering:
1. Whether the R failed to make reasonable adjustments contrary, to Ss 20 and 21 of the
Equality Act 2010 (EqA), in that the C alleges that the following were adjustments which
the R failed to make11
1.1. R failed to apply its procedures not least in respect of sickness absence and
specifically its Disability Policy
1.2. R failed to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy
1.3. To take all steps to ensure C’s immigration status (which was intimately
intertwined with her employment status) would not be compromised by C’s
1 The language used for the issues is that of the C, as set out in her closing submissions,
and for the avoidance doubt the issue encompassed by any alleged failure includes the
issue of whether there was a duty under S.20 to make the alleged adjustment
4102702/12 Page 5
absences and if necessary to take all reasonable steps to ensure that C would not
be at risk of losing her lawful working status
1.4. R failed to maintain C’s pay when absent though illness and failed to keep any
non payment under review
1.5. R failed to reintegrate C into work
1.6. R failed to contact C’s GP in order to assess C’s fitness and ability to return to
work
1.7. R failed to commission expert medical advice in respect of C’s condition,
prognosis and return to work
1.8. R failed to provide a brief to C as a condition precedent to C being seen by R’s
Occupational Health advisers
1.9. R failed to avoid dismissing C
1.10. R should not have dismissed C and/or should have taken all reasonable steps
to avoid dismissal
1.11. In dismissing C, R failed to apply any of the relevant procedures applicable
including the ACAS code of practice, R’s Disability Policy, Dignity and Respect
Policy, Absence Management Policy, Unauthorised Absence Policy
1.12. R should have considered moving C to a different place of work (here outside
the school of Engineering)
1.13. R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit
4102702/12 Page 6
1.14. R should have, if necessary, created a new role for C R should have engaged
with C in respect of the potential of and warned and informed C of the removal of
her laboratory
1.15. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad.
2. Whether the R acted contrary to S 15 of the (EqA); the C alleges that the R failed to do
so in the following respects:
2.1. R failed to apply its procedures not least in respect of sickness absence and
specifically its Disability Policy
2.2. R failed to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy
2.3. To take all steps to ensure C’s immigration status (which was intimately
intertwined with her employment status) would not be compromised by C’s
absences and if necessary to take all reasonable steps to ensure that C would not
be at risk of losing her lawful working status
2.4. R failed to maintain C’s pay when absent though illness and failed to keep any
non payment under review
2.5. R failed to reintegrate C into work
2.6. R failed to contact C’s GP in order to assess C’s fitness and ability to return to
work
2.7. R failed to commission expert medical advice in respect of C’s condition,
prognosis and return to work
4102702/12 Page 7
2.8. R failed to provide a brief to C as a condition precedent to C being seen by R’s
Occupational Health advisers
2.9. R should not have dismissed C and/or should have taken all reasonable steps
to avoid dismissal
2.10.R failed to avoid dismissing C
2.11. In dismissing C, R failed to apply any of the relevant procedures applicable
including the ACAS code of practice, R’s Disability Policy, Dignity and Respect
Policy, Absence Management Policy, Unauthorised Absence Policy
2.12. R should have considered moving C to a different place of work (here outside
the school of Engineering)
2.13. R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit
2.14. R should have, if necessary, created a new role for C
2.15. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her laboratory
2.16. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad
2.17. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad
3. Whether the R victimised the C contrary to S.27 of the EqA. The protected acts relied
on by C are identified in C’s closing submissions to the ET dated 29/5/16 at paras 84-88
and 152-155:
4102702/12 Page 8
3.1. R failed to apply its procedures not least in respect of sickness absence and
specifically its Disability Policy
3.2. R failed to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy
3.3. To take all steps to ensure C’s immigration status (which was intimately
intertwined with her employment status) would not be compromised by C’s
absences and if necessary to take all reasonable steps to ensure that C would not
be at risk of losing her lawful working status
3.4. R failed to maintain C’s pay when absent though illness and failed to keep any
non payment under review
3.5. R failed to reintegrate C into work
3.6. R failed to contact C’s GP in order to assess C’s fitness and ability to return to
work
3.7. R failed to commission expert medical advice in respect of C’s condition,
prognosis and return to work
3.8. R failed to provide a brief to C as a condition precedent to C being seen by R’s
Occupational Health advisers
3.9. R should not have dismissed C and/or should have taken all reasonable steps
to avoid dismissal
3.10. R failed to avoid dismissing C
4102702/12 Page 9
3.11. In dismissing C, R failed to apply any of the relevant procedures applicable
including the ACAS code of practice, R’s Disability Policy, Dignity and Respect
Policy, Absence Management Policy, Unauthorised Absence Policy
3.12. R should have considered moving C to a different place of work (here outside
the school of Engineering)
3.13. R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit
3.14. R should have, if necessary, created a new role for C
3.15. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her laboratory
3.16. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad
4. Whether the R discriminated against the C because of her gender contrary to S.13 of
the EqA, the alleged acts of less favourable treatment being:
4.1. R failed to apply its procedures not least in respect of sickness absence and
specifically its Disability Policy
4.2. R failed to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy
4.3. To take all steps to ensure C’s immigration status (which was intimately
intertwined with her employment status) would not be compromised by C’s
absences and if necessary to take all reasonable steps to ensure that C would not
be at risk of losing her lawful working status
4102702/12 Page 10
4.4. R failed to maintain C’s pay when absent though illness and failed to keep any
non payment under review
4.5. R failed to reintegrate C into work
4.6. R failed to contact C’s GP in order to assess C’s fitness and ability to return to
work
4.7. R failed to commission expert medical advice in respect of C’s condition,
prognosis and return to work
4.8. R failed to provide a brief to C as a condition precedent to C being seen by R’s
Occupational Health advisers
4.9. R should not have dismissed C and/or should have taken all reasonable steps
to avoid dismissal
4.10. R failed to avoid dismissing C
4.11. In dismissing C, R failed to apply any of the relevant procedures applicable
including the ACAS code of practice, R’s Disability Policy, Dignity and Respect
Policy, Absence Management Policy, Unauthorised Absence Policy
4.12. R should have considered moving C to a different place of work (here outside
the school of Engineering)
4.13. R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit
4.14. R should have, if necessary, created a new role for C
4102702/12 Page 11
4.15. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her laboratory
4.16. R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad
Amendment Application
5. The C has applied to amend her Claim to claim to include a claim of direct
discrimination, contrary to S.13 EqA, on the ground that it is alleged that the R treated the
C less favourably than it would have treated others who were not disabled, the acts of
less favourable treatment being relied upon being:
5.1. The R failure to apply its policies
5.2. R’s failure to treat C’s grievance as that
5.3. R’s failure to take steps to extend C’s work permit
5.4. The C’s dismissal C
5.5. dismissing the C without considering other options
6. The R opposes that amendment application
FINDINGS IN FACT
9.
Paragraph 67, 68 and 69 of the Judgment of 16th March 2017 stated: (Bundle 1
p 224):
“67. On 23 May 2011, the claimant met with Dr Waldron. In an email of the
same date, the claimant proposed a “way forward”. This included “providing
4102702/12 Page 12
an acceptable work condition” for the claimant’s ‘gradual reintegration to
work’: full coverage of salary and benefits because of work-related illness:
and early retirement package for 2 years time and compensation.
68. On 16 July 2011 Dr Waldron responded. That response included a
suggestion that the claimant be referred to Occupational health for an
assessment to facilitate any phased return. However on 19 July 2011, the
claimant replied that until the respondent had agreed to the “substantive
issues” that was not “applicable”. On 21 July, Dr Waldron wrote to say that
the respondent could not begin a scheme for re-integration until they had a
clearer picture of the medical and occupational health issues involved. She
understood the claimant might be reluctant to engage with the respondent’s
own occupational health provider and so she wanted to explore whether the
claimant would agree to be examined by an independent occupational
health adviser. On 10 August 2011, the claimant said that she would need
further information including the list of questions and the brief that would be
provided to the examiner. On 19 August, Dr Waldron provided the list of
questions. There was then an exchange of correspondence between
August and November about wider issues but including the claimant raising
concerns about the list of questions and Dr Waldron repeating the need for
informed medical guidance if reintegration was to be explored.
69. On 16 December 2011, Dr Waldron wrote to the claimant about a
number of matters. In that letter she said that because the claimant was
employed under a work permit, the respondent could not simply offer her
another post. The claimant would have to apply and be successful after
external advertisement for the respondent to support a new work permit.
She noted that the claimant’s work permit would expire in April 2012 and
that this may have implications for the claimant’s continued residency in the
UK. She noted they were at an impasse and encouraged the claimant to
consider the offer previously made by the respondent or to consider
mediation.”
4102702/12 Page 13
In respect of the issues covered within these paragraphs the Tribunal additionally
finds the following.
10. The claimant’s letter of 23rd May 2011 (Bundle 2, page 24) stated:
“Way Forward
1. Providing an acceptable work condition from a gradual reintegration to
work. This measure would allow me to regain my health fully recover
from work related illness and to move forward. This reintegration to work
needs to be conducted stage wise with my medical doctor’s approval
and permission, and in absence of the causes of my illness outside of
the School of Engineering. I have many skills with which I can contribute
in many ways to the academic and University matters as I discussed
some examples with you and I would like to establish a dialogue to find
a means that will enable me to support the University’s mission for
recovering my health.
2. Full coverage of salary and benefits lost because of my work related
illness.
3. Early retirement package starting in 2 years with jointly agreed
provisions that will not result in financial disadvantage to me.
4. Compensation for the losses incurred in the purchase of my flat as
calculated by an independent appraisal and some measure of
compensation for damages to my career as estimated mutual
agreement.”
11. Dr Kim Waldron’s response of 18th July 2011 (Bundle 2, page 26) provided:
“I appreciate your expression of interest in resolving matters in a
constructive and amicable way …
4102702/12 Page 14
In arranging a phased return to work our normal practice is for the
University’s Occupational Health Service to obtain a report(s) from those
responsible for an employee’s medical care so that proper medical guidance
can be given to the University on appropriate reintegration to work. I
appreciate that your letter suggests that any return to work would be outwith
the School of Engineering but I think it would be helpful for us all to have a
proper assessment made so that we can all be aware of the issues we need
to deal with in designing a phased return. Do you agree to a referral being
made to the Occupational Health Unit? The actual referral will be discussed
with you before it is submitted and normally this would be handled by your
line manager. Given the circumstances an alternative might be for this to
be dealt with by a member of the HR team? Do you agree? … I appreciate
that you will be keen to make progress on this matter, as am I.”
12. On 19th July 2011 the claimant wrote to Dr Kim Waldron and stated (Bundle 2, page
29) :
“Once the University has agreed to the substantive issues we can discuss
and agree on the peripheral issues for moving forward. I don’t see any
problem in discussing and addressing the logistics of stagewise return to
work with you. Under the circumstances of my situation and causes of my
illness, the University’s Occupational Health Service review would not be
applicable; however, if you wish, we can discuss it further after addressing
the substantive issues.”
13. By letter dated 21st July 2011 Dr Kim Waldron wrote to the claimant and stated
(Bundle 2 page 30):
“I can confirm that the University is very keen to reach agreement on the
way in which we take things forward, but I cannot expect the University to
come to decisions about the extent of any proposal or suggestion that we
might make until we have a clearer idea of the medical and occupational
4102702/12 Page 15
health issues involved. Similarly while we all want to see you recover your
health we cannot properly begin any scheme for gradual re-integration until
that information is available so that each of us can consider what options
will be in your best interests.
While I am sure there is nothing improper in asking you to be examined
through the University’s usual Occupational Health procedures, I can
understand your reluctance to engage with the University’s own normal OH
provider. With a view to moving things forward I wanted to explore with you
the possibility that you might agree to be examined by an independent OH
adviser. If you are prepared to do so I would ask that HR contact you (while
I am away on leave) and they will arrange to identify a list of three
independent OH providers from which you could select one and we could
then arrange the referral.”
14. The letter from the claimant to Dr Kim Waldron of 10th August 2011 (Bundle 2 page
31) provided:
“With respect to your question of being examined by an independent OH
advisor I can say that hopefully you would agree that I am a reasonable
person and would agree to reasonable requests. For me to be able to make
an informed decision I would need to have received the complete and
necessary information about the exact purposes of the examination and any
report out of it and what they are for and will be used for and also to have
the list of questions and the brief that the University would intend to provide
to the examiner.”
15. The response from Dr Kim Waldron of 19th August 2011 provided as follows (Bundle
2 page 32-33):
“In your letter of 23rd May 2011 and in our meetings and telephone
conversations you have expressed your wish for a gradual integration to
work and have stated that you see this as a measure that will aid your
4102702/12 Page 16
recovery. We are keen to see your health improve and the purpose of the
Occupational Health referral is to understand how to manage your possible
return to work but we cannot begin this scheme of gradual re-integration
until the information from an Occupational Health process is available so
that each of us can consider what options will be in your best interests. I
should reiterate that the University’s OH procedures do apply to you as an
employee of the University, but in order to progress your case we are willing
to look at an external provider and agree who would carry out the
assessment with you. We would suggest that any of the following
three providers could be approached to see if they would carry out an
assessment: BUPA, AXA ICAS or the NHS. It would be helpful if you could
indicate your preference of who you would like us to approach.
So, the purpose of the referral is to provide both you and the University with
detailed information and advice about facilitating a return to work. I am
happy to provide you with the questions that the University would ask and
we would also supply a copy of the candidate information relating to your
role.
The questions that we would ask are:
1. What is the nature of the illness from which Professor Sheikholeslami is
suffering?
2. What are the actual work related causes that Professor Sheikholeslami
believes have contributed to her ill health? To what extent, if any, can
these be addressed through a reintegration to work programme?
3. Given the role that Professor Sheikholeslami is required to fulfil, to what
extent may it be possible to re-integrate Professor Sheikholeslami back
into the workplace?
4. What is Professor Sheikholeslami’s current fitness for work?
4102702/12 Page 17
5. What practical support will it be necessary to put in place to assist
Professor Sheikholeslami with her return to work?
6. Are there any modifications to work that are likely to alleviate the health
condition or facilitate Professor Sheikholeslami’s return?
7. Is there any advice about what the University should avoid?
8. What will be the pattern of return? Over what period?
9. When will Professor Sheikholeslami be able to return to full time
employment?
10. How often will the arrangement be reviewed at the beginning of the
reintegration process?
I should emphasise that we would be obliged to comply with the processes
of the OH provider that we agree to use. This may involve the need to
complete their forms or other documentation, all of which would be shared
by you and will be explained to you in more detail once we have engaged
the services of the chosen provider.”
16. By letter dated 25th August 2011 (Bundle 2 page 36) the claimant responded to the
letter from Dr Kim Waldron. In that letter the claimant stated:
“...Secondly, I note that the letter provided me with a general list of
questions, however, a copy of the intended brief to the OH examiner that I
had specifically requested was not provided to me. Further, the letter stated
that the University would supply a copy of the candidate information relating
to the “role” to the examiner but that candidate information for the role was
not provided to me either. I must say that: (a) the answers to most, if not
all, of those questions were already given to the University; (b) it is very
4102702/12 Page 18
ambiguous what the letter means by “a copy of the candidate information
relating to your role” which I have not been provided with its copy; and (c)
particularly in light of the history of the matter and also as it was requested
furthermore as a copy of “candidate role” was also not provided, a copy of
the intended brief to the examiner must have been supplied.”
17. Dr Kim Waldron responded by letter dated 13th October 2011 (Bundle 2 page 57) .
That letter stated:
“1. Providing an acceptable work condition for (your) gradual
reintegration to work
As we have discussed before and with respect to our related
correspondence, we would be very happy to explore a reintegration to work
with you but this will have to be managed through an Occupational Health
(OH) referral, because we would need informed medical guidance on how
such a reintegration can be achieved. The OH route remains open to you,
and if you wish to explore a reintegration to work at the University, please
advise me which OH provider you would feel most comfortable using and
we can begin the OH process. My letter of 19th August 2011 lists the names
of three external OH providers who can carry out the referral.
In our discussions, you have said to me and to Professor Lesley Yellowlees
that you cannot envisage returning to work in the School of Engineering.
Therefore any reintegration would need to be into a role which is different
from your current duties under your contract of employment. That may in
itself present challenges over and above those involved in your getting back
to full health.”
18. The claimant responded to Dr Kim Waldron by letter dated 22nd November 2011
(Bundle 2 page 57). In that letter she stated:
“1. Re: Gradual Work Reintegration issue: I refer to our conversation of
5th July (see Annex 1) during which you informed me that HR had advised
4102702/12 Page 19
you that it would not be possible for the UoE to provide me with work
reintegration sought in my 23rd May letter. I also refer to my letters of
19th July, 10th August and 25th July in which I addressed in detail the OH
matter raised by the University since its 18th July letter. This
correspondence is a test to the inaccuracies and misrepresentations in the
13th October letter.”
19. In conclusion of her letter of 22nd November 2011 (Bundle 2 page 60) the claimant
stated:
“Our options
Since 23 May 2011 I have been patiently waiting for you and in good faith
relying on the fact that the University agrees in essence in terms of my
23 May 2011 letter and the only two concerns to be the length of “stage-
wise” reintegration and fate of the “Chemical Process Engineering
Laboratory.” Regrettably, the 13 October letter appears to suggest that the
University may not have been dealing with me in good faith and in fact may
have been toying with me and with this seriously grave issue- I hope this
portrayal has been inadvertent and incorrect.
Summary
In summary:
1. The 13th October letter is an insult to injury.
2. The proposed offer does not justify a reply.
3. The 13th October letter’s discussion of the 4 points is
disingenuous and has inaccuracies/misrepresentations.
4. The course of events suggests that my good intentions and
constructive attempts may have been mistaken.
5. The University’s letters so far have not been constructive; they
have been inflammatory, unhelpful and futile.
4102702/12 Page 20
6. The way forward constructively and amicably by agreement is
preferable but other alternatives available.”
20. In her letter of 16th December 2011 (Bundle 2 page 72) Dr Kim Waldron referred to
matters being at an “impasse” after the claimant’s letter of 22nd November 2011.
21. Following the claimant’s letter of 22nd November 2011 the parties did not correspond
further on the issue of the referral to Occupational Health. The Tribunal finds that
the respondents’ request that a referral be made to Occupational Health (made by
letter dated 18th July 2011 and repeated thereafter) was a reasonable request
against the background of the claimant’s absence from her employment with the
respondents from January 2010 with work related stress and depression. In
reaching this conclusion the Tribunal had regard to the fact that the respondents
were willing to engage with an external OH provider as they understood that the
claimant may be unwilling to engage with their own normal OH provider (letter of
21st July 2011). In the letter of 19th August 2011 from Dr Kim Waldron, a suggestion
of 3 alternative OH providers (one of whom was the NHS) was made to the claimant.
The Tribunal also had regard to the fact that, in correspondence, the respondents
repeatedly said that a referral to Occupational Health would be with a view to the
claimant’s gradual re-integration to the workplace.
22. The Tribunal finds that the request that the claimant engage with Occupational
Health was a genuine attempt by Dr Kim Waldron to engage with the claimant and
the University to obtain further information with a view to what was described in the
correspondence as “reintegration to work.” Support for this finding is to be found in
the letters of 18th July 2011, 21st July 2011, 19th August 2011 and 13th October 2011.
The Tribunal further finds that the claimant failed to engage constructively with the
proposal that a report be obtained from Occupational Health. To this end, the letter
of 19th August 2011 from the respondents to the claimant not only provided details
of three alternative providers of Occupational health but also set out the questions
that would be asked of any OH provider and assured the claimant that any forms or
other documentation completed by the respondents for the purpose of an OH report
would be shared with her.
4102702/12 Page 21
23. In response, the claimant’s letter of 25th August 2011 made reference to the
respondents’ failure to supply a copy of the “intended brief”, notwithstanding the
assurances by Ms Waldron in her letter of 19th August 2011 about the provision to
the claimant of copies of any documentation supplied to the chosen OH consultants.
The claimant did not clarify to the respondents what further documentation would
satisfy her request for sight of the “intended brief”. The respondents’ final letter on
this issue (13th October 2011) reiterated that the respondents were “very happy” to
explore reintegration to work and reiterated the fact that this would have to be
managed through an OH referral as they needed “informed medical guidance” on
how such a reintegration would be achieved. The letter of 13th October 2011
repeated that: “The OH route remains open to you and if you wish to explore a
reintegration to work at the University please advise me on which OH provider you
would feel most comfortable using and we can begin the OH process.”
24. In making these Findings in Fact , the Tribunal was mindful of the fact that in cross
examination it was put to Dr Sheila Gupta that the claimant requested a copy of the
brief to Occupational Health which was never provided and therefore the claimant
could not be criticised for the lack of progress in relation to Occupational Health. In
response, Dr Sheila Gupta stated: “As I understand it, Dr Waldron did write to
Professor Sheikholeslami and tried to make that clear. I think it was just not clear.”
(Bundle 3 p226). Notwithstanding this, on examination of the correspondence the
Tribunal finds that the issue of the claimant’s reintegration to work via a referral
through Occupational Health was repeatedly raised by Dr Kim Waldron in the
correspondence of 18th July 2011, 21st July 2011, 19th August 2011 and 13th October
2011. The Tribunal also finds that the letter of 19th August 2011 was clear in its terms
in that a choice of three OH providers was given and full details of the questions that
would be asked of these OH providers were provided. The letter of 19th August 2011
also provided the claimant with reassurance that any forms or other documentation
submitted to her chosen OH provider would be shared with her.
25. In all of these circumstances, the Tribunal finds that notwithstanding a view among
the respondents that the claimant was never going to return to the employment of
4102702/12 Page 22
the respondents (as found in para 107 of the original judgment, Bundle 1 p234) the
issue of a referral to OH was a genuine attempt on the part of Dr Kim Waldron ,
acting on behalf of the respondents to “reintegrate” the claimant to her employment
within the respondents; and that the reason that the issue of an OH referral was not
progressed at that time was because the claimant never identified her choice from
the three OH providers as set out in the letter of 19th August 2011.
26. Accordingly the Tribunal finds that prior to the correspondence of 16th December
2011 (as narrated in paragraph 69 of the Judgement) the respondents were unable
to progress an attempt to re-integrate the claimant into the workplace due to an
“impasse” reached as a result of the claimant’s failure to respond constructively to a
reasonable request from the respondents that she engage with Occupational Health.
27. Paragraph 74 of the judgment (Bundle 1 page 226) provides: “74 The evidence of
Sheila Gupta was that her understanding was that the claimant was seeking a
settlement from the University and would not be returning to her previous position.
For these reasons she did not explore possible options to extend the claimant’s stay
in the UK and did not invoke the grievance policy despite communications made by
the claimant which were (by her own admission in evidence) clearly grievances.”
28. Paragraph 81 of the Judgment provides: (Bundle 1 page 228) “Sheila Gupta’s
justification for her failures in not only progressing the claimant’s grievances but also
in having no regard to the issue of disability in the termination of the claimant’s
employment was simply that the claimant was seeking settlement from the
respondents. However, such negotiations as there were between the claimant were
not fruitful and at no point could it be said that a settlement was within
contemplation.”
29. Paragraph 106 of the Judgment provides (Bundle 1 page 233) : “Sheila Gupta gave
evidence that she dismissed the claimant without considering other options under
the respondents Disability Policy as she was of the view of the claimant was only
interested in a settlement with the respondents. However, there was no evidence to
support the proposition that settlement discussions with the claimant ever came
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close to fruition. Further, in evidence, Sheila Gupta admitted that the claimant never
expressed the view that she wished to relinquish her position as the Chair of
PetroChemical Engineering. In considering this issue the Tribunal concluded that
there was no factual basis to support the proposition that the claimant wished to
leave the employment of the respondents.”
30. Notwithstanding the fact that there was no evidence to support the proposition that
settlement discussions with the claimant ever came close to fruition or indeed that
the claimant wished to leave the employment of the respondents, the Tribunal finds
that as a matter of fact that Sheila Gupta believed that the claimant was seeking
settlement with the respondents. In reaching this conclusion the Tribunal had regard
to Sheila Gupta’s evidence in cross examination where she said on more than one
occasion that her understanding and belief was that the claimant was seeking a
settlement from the respondents. To this end, at the end of her cross examination
Ms Gupta stated: “I think what I want to say is the intention was to genuinely try and
achieve a satisfactory resolution to the situation, that is not to say on reflection there
are not aspects in this case that we could have managed differently.” Simon Gorton
then stated: “Satisfactory resolution as far as you were concerned was exiting the
claimant from the university.” Sheila Gupta replied by stating: “I would wish to
reiterate my earlier point I thought that Professor Sheikholeslami asked the
University to seek a settlement and I really wanted to engage positively with that.”
(Bundle 3 p 227)
PARTIES’ SUBMISSIONS
The submissions are exactly as provided by the parties
The numbering in the parties’ submissions accords with the numbering in the submissions
provided by them.
31. Submissions for the Claimant
The Claimant (C)
The Respondent (R)
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1. The ET has indicated that it would welcome a summary outline of each party’s case
in order for the ET to record and embody the same in its Reasons.
2. C’s previous summary is set out in B1 p183.
Structure of C’s case
3. The core structure of C’s case:
3.1.
Pre dismissal matters relating to procedures and policies . Taking para 1 of
the list of issues on B3 p57-62 (but this applies to identical issues under the
different causes of action), this includes 1.1, 1.2 and 1.4;
3.2.
Matters relating to C’s absence and steps that could have been taken to
reintegrate C into work, this embraces 1.5-1.8;
3.3.
Dismissal in terms of what process and procedure ought to have been followed
and how it should never have taken place and/or steps that R should have taken
to avoid dismissal – this embraces 1.9-1.12 and 1.14;
3.4.
Dismissal and work permit issues that are embraced by 1.3 and 1.13;
3.5.
Steps that should be been taken in respect of the removal of C’s lab and PHD
supervision.
4. The ET is invited to approach deciding the remitted issues in this above form.
Key findings
5. While C refers to its submissions on the facts as to those which the ET has found or
are invited to find, as set out under Part B paras 8-20 in C’s submissions for the hearing
on 28/2/19 (B3/78-92), there are a number of findings made by the ET that are critical
if not determinative.
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6. First, the steps R did and didn’t take in respect of C’s immigration status and
imminently expiring work permit. This was the expressed reason for C’s dismissal and
is therefore at the core of this case. This is set out in paras 70, 73 and 105 of the ET
reasons: Gupta could and should have taken steps to contact C and ensure her
immigration status was not lost and thereby her employment also not lost. Gupta did
neither.
7. Second, why did R and Gupta not take those steps? Beyond admitting she should
have done, her rationale (save as identified below under para 9) was that (i) C was
seeking a settlement – which the ET emphatically rejected paras 81/106, and (ii)
because C was relinquishing her Chair (in other words wanting another job) which was
similarly dismissed by the ET – para 82. Note, the rationale was never that there was
an impasse – that is R’s case post the EAT and not before the ET; it was not the
evidence or the thrust of the evidence of the witnesses for R not least Gupta.
8. Third, the applicable and eminently relevant suite of policies not applied by R and
followed through. Those policies most applicable were (i) the Disability Policy (ii) The
Grievance procedure dealing with gender and disability complaints, as well as the
procedures set out under para 12 of the submissions (B3/78-92) for the remitted
hearing. Those policies were entirely relevant to all of the applicable problems and
issues that C was concerned with: her ill health; her grievances concerning her
treatment because of her disability status and mistreatment because of her gender;
the need for steps to be taken that were reasonable adjustments to assist C to retain
her employment not least under the Disability Policy. R accepted that not to apply the
Disability Policy was a “fundamental omission” – paras 73/103/106. Again, why were
those policies not applied and again the rationale and defence was never that there
was an impasse.
9. Fourth, the actual rationale of R (as opposed to the latterly deployed confection of
impasse) in fact makes things worse for R and proves C’s case:
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9.1.
C’s employment could have been retained and not lost through the immigration
issue as Gupta accepted – paras 73/105;
9.2.
C’s grievances were never progressed because of C’s ill health – paras
103/104/107. In other words C was being penalised for being ill and absent –
the clearest example of a discriminatory mindset. Again, note no suggestion
was made that this was due to an impasse;
9.3.
The Disability Policy was not only relevant and applicable (reasonable
adjustments and avoiding dismissal being at its core) but R’s failure to apply it
was a “fundamental omission”. The impasse argument again was never raised.
This has even more resonance here: if R thought an impasse caused the policy
to be rendered ineffective, this was its opportunity to state this; R did not;
10. Fifth, it is overwhelmingly obvious from the above that the reason for C’s dismissal
was R’s lighting (or perhaps more appropriately seizing) on the expiration of the work
permit issue as the dismissal letter of 11/1/12 makes explicitly clear - see para 70, as
means of exiting C. The ET has already found that this was done unfairly. It is quite
clear that it was done without any justification and no defensive rationale as paras
73/105 make clear.
11. Sixth, the ET can draw the necessary inferences that the dismissal was an act of
avoidance by R to (i) apply its Disability Policy (ii) investigate and adjudicate on C’s
grievances (iii) avoid having to grapple with C’s serious allegations of discrimination
on the grounds of sex and disability.
12. Seventh, here are a series of matters that assist the ET in drawing those necessary
inferences as follows:
12.1. The insider club within the School that was materially influenced by gender
discrimination and the group’s adverse reaction to C on and after the
15/2/11 meeting;
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12.2. The attempt negatively to influence the Prof Shaw investigation as the ET
records in paras 45/46 that came from within the School;
12.3. McCloskey’s assault on Prof Shaw’s professionalism that was extraordinary
but critically betrayed the mindset of the School closing ranks against
anyone who raises issue against the School – see para 99;
12.4. The injunction against contact with C and sending C to Coventry that again
came from within the School and that was never revealed until Dr Glass
inadvertently revealed it. That formed the basis of the finding of victimisation
which C has succeeded on;
12.5. The findings of retaliation against C for having raised complaints that form
the basis of the ET’s victimisation findings against R;
12.6. The deeply murky evidence of who issued the injunction and precisely to
whom as exemplified by McCloskey’s evidence.
12.7. The clear suspicion that Ingram had been colluding with other witnesses
while giving his evidence – para 111;
12.8. The fact that the Head of the College intentionally and deliberately lied to
the ET about the critical issue of who was the decision maker. Given the
importance of the issue of who made the decision and the absence of the
Principal (O’Shea) from the ET proceedings, this was rightly exposed by the
ET as being a fabrication. It was a fabrication that represented R closing
ranks against C and attempting to mislead the ET;
12.9. The fact that both Gupta and Glass made incriminating admissions that
once they realised what they had done, they both attempted to retract their
evidence. This is clearly recorded by the ET for both at para 109. That is
redolent of matters being concealed from the ET. R has not given the ET
the full and truthful picture, as it should have done. At times the truth has
4102702/12 Page 28
spilled out only for R to then to try and retract. That ought to make the ET
deeply suspicious of R and its motives;
12.10. The seriously negative and wholly unjustified slur on C by Gupta in her
memo as recorded in para 196. Plainly, prejudicial views against C for
having raised complaints, demonstrating that the animus and hostility to C
was not reserved to the School;
12.11. How that continued into R’s XX of C that was severely criticised by the ET.
The senior advocate conducting the XX is not criticised, as she was plainly
acting on instructions – see para 85.
13. Eight, if necessary the ET can rely on the switching of the burden of proof in respect
of all of C’s claims. Based on the above and the admissions made already by R e.g.
policies were not applied because C was believed to be unwell and would not be
thought to want to go through it, or the Disability Policy was not applied and no reason
given for it not being applied, the burden switches to R and R’s evidence either
condemns it or it has no defence i.e. rationale non discriminatory reason for the
mistreatment of C.
Findings applied to the claims
14. On reasonable adjustments:
14.1. The PCP was the obligation to work at the School;
14.2. All that was happening to C (absence, grievances, dismissal process) arose
from the PCP or where closely connected with it e.g. grievances;
14.3. That clearly put C at a significant disadvantage next to a non disabled
comparator;
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14.4. Making the adjustments would have made a significant difference e.g. the
policies would have been followed, C’s grievances investigated, reasonable
adjustments to return to C to work would have been explored and implemented,
C dismissal would have been avoided. Gupta’s evidence was to that effect. It is
overwhelmingly clear that not only were the adjustments sought, they were
sensible and practical and practicable;
14.5. Note that R does not argue that they were not reasonable;
14.6. Instead R argues that they adjustments would not have been relevant to the
PCP because of the alleged impasse. Aside from the fact that this in an
impermissible argument (as below) it is also misconceived: all the adjustments
would have assisted in relieving the disadvantage flowing from the PCP which
was the threat of dismissal as C felt she could not return to the School;
14.7. Moreover, R’s arguments conspicuously avoided making any submissions on
avoiding dismissal as a reasonable adjustment. That is for the obvious reason
that R’s argument becomes absurd when considering the PCP and dismissal:
not dismissing was the obvious step to take so as to avoid the PCP; R’s case
is that the PCP was not relevant to dismissal, but how can that possibly be right
when the adjustment sought is to avoid dismissal when the entire basis of the
PCP is one framed in dismissing C for not being able to return to the School?
The core of the PCP is that C must return to work at the School and if not she
is at risk of being dismissed; how can not dismissing C not be a reasonable
adjustment?
15. On s15 claims:
15.1. The unfavourable treatment could not be clearer: as is exemplified in schedule,
things that should have been done to and for C were not culminating in
dismissal;
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15.2. The something arising in consequence was C’s absence from the School and
C’s inability to return to it – see EAT para 63;
15.3. Again, as much as C followed the argument, R's contention appeared to be that
either the impasse broke the chain of causation or that the Gupta rationale did
the same. Both are completely misconceived: as the EAT noted at para 64, the
ET has already made a finding on this in para 203/205. Manifestly both were
linked in a clear causative sense to C's disability and absence.
15.4. Even if the impasse argument was correct to a degree (it is not to any degree),
it is irrelevant to the first causation question which the EAT analysed at para
64: R’s considerations were all directed to C’s absence and therefore disability
status. C’s treatment was related or because of her disability absence;
15.5. And on the second causation question, it is absolutely clear that on the looser
causation test, again C’s absence and R’s treatment of her in respect of this,
which was at the heart of the issues, was because she was disabled. Again as
clearly analysed by the EAT in para 65-66;
15.6. The submission that Gupta’s rationale, which was an inherently discriminatory
rationale i.e. she didn’t deal with C because she was ill, somehow breaks the
chain of causation (first or second question) is wholly misconceived: Gupta
precisely didn’t deal with C in the way that she should have done because C
was ill;
15.7. No objective justification defence has been pleaded, it was not argued before
the ET at the substantive hearing, no application having been made to amend
the defence to plead this, the ET simply does not have jurisdiction to entertain
the defence. Even if it did, as para 111 records, no evidence was led on this
and therefore no such defence can be sustained.
16. On victimisation:
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16.1. C submits that what to a material extent explains R’s seemingly irrational
conduct of not following procedures and policies, not exploring with C the
eminently sensible steps to avoid the immigration cliff edge with C, were not
pursued and were not pursued in respect of a reasons for justification that were
rejected by the ET: settlement and giving up Chair;
16.2. What therefore explains (materially – it does not have to be wholly) R’s actions
is a desire to see the end of C and her disputes without having to address them
or follow procedure(s). This is where the work permit rationale is introduced. It
is no more than a convenient device to side step difficult and demanding issues.
That unquestionably is because of C’s protected acts and those protected acts
materially influenced R;
16.3. That answer can be given by way of drawing inferences from primary facts or
by way of the application of the burden of proof. Either way, C should succeed
in her claims.
17. On sex discrimination. This is explained in C's substantive submissions. Avoiding
complaints about gender discrimination is not only victimisation, it is also direct
discrimination if the reasoning is to avoid and side step gender based complaints.
R’s post EAT arguments
17. Finally, R has raised 2 post EAT defences that are entirely impermissible and should
be rejected.
18. First, the objective justification defence under s15. See para 15.7 above.
19. Second, the impasse argument. Briefly, this should be rejected:
20.1. It is entirely new and was not raised previously before the ET. It cannot be
raised now as the EAT remission statement makes clear B3 p39 para 1
Reasons – the ET is finishing off its task and not embarking on new matters.
4102702/12 Page 32
20.2. It was neither R’s case nor its evidence. R’s case and evidence was that it
not take certain steps that it ought to have done because (i) C was unwell
and/or (ii) she wished to settle and/or (iii) relinquish her chair. The ET
rejected the latter 2 and the former was inherently discriminatory so could
not assists R in any event. Nowhere did R argue that it did not apply the
relevant polices nor take steps it should have done because matters had
reached an impasse. If there had been reached an impasse Gupta would
have said this but her evidence expressly was not this. Waldron would have
said the Disability Policy could not be applied because of an impasse, but
she did not say that. Finally if there was an impasse, Gupta would have told
the ET that the work permit issue was triggered by the impasse; she did not
say that;
20.3. It is wrong as a matter of fact. As the transcript of the evidence makes clear
in respect of Gupta's evidence, the brief that C required was never provided
by R i.e. the instruction letter to the proposed expert - see B3 p226227.
There was a failure to progress matters because C wanted certain
procedural safeguards applied i.e. a written brief. But that was hardly an
impasse. And it would not have prevented the other policies applying i.e.
Disability and Grievance. And as the ET found in para 196, that was not an
impasse but simply R not progressing matters once the expiration of the
work permit raised its head;
20.4. It is also abundantly clear from Waldrons’s testimony and Para 69 of the ET
that the issue for R was the return of C to the School and Work Permit and
not any currently confected impasse as a result of OH.
20.5. Finally, the argument as to impasse, as the ET identified yesterday, conflicts
with the ET’s previous findings in paras 78/101/106/107/196. Those findings
were not appealed to the EAT. They cannot be challenged or implicitly set
aside.
4102702/12 Page 33
32. Submissions for the Respondents
1. At the request of the Tribunal the R has prepared this executive summary of the R’s
submissions, original submissions, responsive submissions and the further factual
findings the Tribunal is invited to make.
2. As submitted in oral argument the R invites the Tribunal to complete the factual
findings which the Tribunal partially addressed at paragraphs 67 to 68.The R
submitted the sequence of correspondence from the 23rd May to the C’s rejection of
the R’s proposals, specifically its’ willingness to engage in looking at the steps
necessary for the C’s re integration into the workplace. The University in the letter of
13th October 2011, page 57 bundle 2, were open to reintegration back to the
workplace, as they had been from April, but took the reasonable position that this
would require a referral to occupational health for “informed medical guidance on how
such reintegration can be achieved”. The C is given the choice of OH from three
providers and it is clear that route is open to her. Her response of 22nd November
2011, page 60, simply does not take that up.
3. The R’s position is that in so far as it is necessary for the C to establish that any of the
alleged reasonable adjustments would have avoided the PCP relied on it is for the Cl
to show that the proposed adjustments would have had this effect. In this respect it is
R’s case that the R’s reasonable attempts at addressing her rehabilitation to work and
thus avoiding the effect of the PCP rested upon obtaining occupation health guidance.
4. R’s position is that further findings of fact can be made on the documents that:
4.1. The University were willing to explore the C’s reintegration to work but took the
reasonable position that an Occupational Health referral, which it was happy
should be an by external provider selected from a list by the C, should be taken to
obtain informed medical guidance on how such a reintegration could be
achieved.\The C did not agree to progress that proposal;
4102702/12 Page 34
4.2. An impasse was therefore reached that meant her reintegration to work could not
be advanced.
5. The Alleged Failure to Make Reasonable adjustments contrary to Ss 20 and 21 of the
Equality Act 2010
6. The original Judgment found that the R had applied a “provision, criterion or practice”,
“PCP”, that the C should attend work at the School of Engineering. The second
question is then whether that placed the C at a substantial disadvantage, in relation to
a relevant matter, in comparison with persons who are not disabled. If it did then the
duty is engaged so as to take such steps as it is reasonable to take to avoid the
disadvantage.
7. Whether or not a step will remove the substantial disadvantage is a critical aspect in
determining whether the asserted step is reasonable. In an extreme position if there is
nothing the employer can do, that will have the effect of getting the disabled person
back into work, it cannot be reasonable for him to have to do anything at all. Thus
in HM Prison Service v Johnson [2007] IRLR 951, EAT where the stage had been
reached that the consequences of the disability were irretrievable and the duty to make
adjustments was therefore said to have fallen away. Similarly, in Conway v Community
Options Ltd UKEAT/0034/12, [2012] EqLR 871 it was held that if an adjustment would
not enable a return to work, it will not be 'reasonable' for it to be made.
8. Here on the facts the C’s position was that she was not willing to engage with the
offered steps to avoid the impact of the PCP by looking to reintegrate her into the
workplace.
9. Once that is understood none of the proposed reasonable adjustments avoid the PCP.
9.1. (15) R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad. Has no
relationship to returning to work;
4102702/12 Page 35
12.2 (14) R should have, if necessary, created a new role for C. R should have
engaged with C in respect of the potential of and warned and informed C of the
removal of her laboratory. The removal of the laboratory issue has no relevance,
the new role (addressed in 12) is considered below;
12.3 (13) R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit. To the same effect (3).
These alleged reasonable adjustments bring nothing to the point on addressing
the substantial disadvantage the C advances;
12.4 This is equally true of the alleged adjustments around dismissal, (9), (10) and
(11). They might have continued the employment relationship but they would
not have addressed the substantial disadvantage.
12.5 “(4) R failed to maintain C’s pay when absent though illness and failed to keep
any non-payment under review.” Has no engagement at all with removing the
substantial disadvantage. There are no exceptional circumstances in this case,
of the nature contemplated in O'Hanlon v Commissioners for HM Revenue &
Customs [2007] IRLR 404 (CA) and Royal Bank of Scotland v Ashton [2011]
ICR 632 such that maintaining sick pay would have removed what is alleged to
be the substantial disadvantage, that the C should attend work in the School of
Engineering.
10. This reasoning addresses the C’s case on alleged adjustments 1.1, 1.2, 1.3, 1.5, 1.6,
1.7, 1.8 and 1.12
11. The C’s case on reasonable adjustments should be dismissed.
12. Whether the R acted contrary to S 15 of the (EqA); the C alleges that the R failed to
do so in the following respects:
4102702/12 Page 36
13. The list of issues reflects again a broad brush approach apparently being a recast of
the case on reasonable adjustment. This reflects a fundamental misconception about
the application of S.15. It is clear from Trustees of Swansea University Pension &
Assurance Scheme v Williams [2015] IRLR 885, EAT – upheld by the Court of
Appeal [2017] EWCA Civ 1008, [2017] IRLR 882, [2018] ICR 233 and now by the
Supreme Court ( 17th December 2018) that the C not being treated as beneficially as
she would wish is not to be equated with the C being treated unfavourably. Thus the
C may seek more favourable treatment in the continuation of pay beyond normal sick
pay, but that not happening is not being treated unfavourably, it is not being treated
as favourably as the C would wish. That does not make out a claim under S.15.
14. The EAT in this matter set out, following the approach City of York Council v Grosset
[2018] EWCA Civ 1105, [2018] IRLR 746, the correct approach. Firstly it is necessary
to identify the specific act of unfavourable treatment alleged, a tribunal must first
identify whether there was unfavourable treatment and by whom: in other words, it
must ask whether A treated B unfavourably in the respects relied on by B, that is clear
from Simler J’s Judgment in Pnaiser v NHS England [2016] IRLR 170, EAT. and then
it is necessary to consider two distinct causative issues: (i) did A treat B unfavourably
because of an (identified) something? and (ii) did that something arise in consequence
of B's disability?
15. The first issue one considers is the alleged discriminator's state of mind to determine
what consciously or unconsciously was the reason for any unfavourable treatment
found. If the “something” was a more than trivial part of the reason for unfavourable
treatment then stage (i) is satisfied. The second issue is a question of objective fact
for the tribunal to decide in the light of the evidence. As to the second it does not have
to have a direct causative connection and there may be causative links but it remains
the case that it must be possible to say that it is something arising in consequence of
the disability.
16. It is then necessary to tease out of the issues advanced by the C what is said to be
the unfavourable treatment and then to consider whether it can be said to meet the
necessary causative steps.
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17. Applying a more analytical approach to the claims
18. “2.1 R failed to apply its procedures not least in respect of sickness absence and
specifically its Disability Policy”
18.1. The R did not apply its’ sickness absence and disability policy. From
Paragraph 81 of the Judgment it is clear that Ms Gupta, whose was
responsible for considering this, did not do so because she believed the C
was seeking a settlement from the R, this dates back to proposals made by
the C in May 2011. The Tribunal find that at no point could it be said that a
settlement was in contemplation but that does not mean that Ms Gupta
reason was not subjectively the reason for the “something” complained of.
This is a subjective question not a question of whether the view was
reasonable.
18.2. The belief that the C was seeking a settlement is then not something arising
in consequence of the disability, it is a consequence of the overtures that
the C made in May 2011 to seek resolution. The dispute with the R is not
the disability and critically, as set out in the case on reasonable adjustment,
the R has acted reasonably in addressing a position on needing a medical
assessment on a phased return to work. That effectively became a break in
the chain of causation between the disability occasioning the C’s absence
and the events after the R has reasonably engaged on how that might be
addressed.
19. “2.2 R failed to apply or have regard to its procedures including the grievance
procedure and dignity and respect policy.”
20.
The same reasoning applies to these policies.
21. “2.3 To take all steps to ensure C’s immigration status (which was intimately
4102702/12 Page 38
intertwined with her employment status) would not be compromised by C’s absences
and if necessary to take all reasonable steps to ensure that C would not be at risk of
losing her lawful working status”.
22. This as noted is not actually unfavourable treatment it is the R not treating the C as
beneficially as she wished, the clue is the formulation “to take all steps”, there was no
duty on the R to take any steps in respect of the C’s immigration status.
23. “2.4 R failed to maintain C’s pay when absent though illness and failed to keep any
non-payment under review”
“2.5 R failed to reintegrate C into work”
“2.6 R failed to contact C’s GP in order to assess C’s fitness and ability to return
to work”
“2.7 R failed to commission expert medical advice in respect of C’s condition,
prognosis and return to work”
“2.8 R failed to provide a brief to C as a condition precedent to C being seen by
R’s Occupational Health advisers”
24. As outlined above on the point relating to the continuation of pay none of these
“somethings” are unfavourable treatment, the C is not being treated as favourably as
she wanted. This is equally true of the following:
“2.12 R should have considered moving C to a different place of work (here outside
the school of Engineering)”
4102702/12 Page 39
“2.13 R should have engaged with C in respect of her work permit status, fully
informing C of her and its options all with a view to ensuring C’s work status was
not lost at the expiration of her 5 year work permit.”
“2.14 R should have, if necessary, created a new role for C”
“2.15 R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her laboratory”
“2.16 R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad”
“2.17 R should have engaged with C in respect of the potential of and warned and
informed C of the removal of her duties as PHD supervisor for Emad”
25. Properly analysed these are all assertions of beneficial treatment which the C desired
and not unfavourable treatment. This is reflected in the fact that the C, although
unsuccessfully so, seeks to advance these matters as reasonable adjustments.
26. This leaves the dismissal and these issues:
“2.9 R should not have dismissed C and/or should have taken all reasonable steps
to avoid dismissal”
“2.10 R failed to avoid dismissing C”
“2.11 In dismissing C, R failed to apply any of the relevant procedures applicable
including the ACAS code of practice, R’s Disability Policy, Dignity and Respect Policy,
Absence Management Policy, Unauthorised Absence Policy”
27. These are capable of being unfavourable treatment but what is the “something”. It is
simplistic to say it is the C’s absence, she had been absent since 2010. What leads to
this process is the impasse, an impasse that’s reached by the end of 2011, as set out
4102702/12 Page 40
above, because the C is not accepting of the way forward to re integrate her into the
workplace.
28. Even if then there is a causative connection for the purpose of S.15(1) on the objective
test the treatment was a proportionate means of achieving a legitimate aim. It plainly
must be a legitimate aim to regularise the contractual position of an employee in
respect of whom an impasse has been reached and there is a simply a sterile
employment relationship. The means are clearly proportionate as termination is the
only mechanism by which that can be resolved.
Conclusion on S.15
29. The C’s claims under S.15 should be dismissed.
30. Whether the R victimised the C contrary to S.27 of the EqA. The protected acts
relied on by C are identified in C’s closing submissions to the ET dated 29/5/16
at paras 84-88 and 152-155:
31. On C’s case the alleged protected acts are articulated in the broadest way at paras
84-88. Paras 152-155 do not assist with any degree of refinement. That is not to assert
that it is denied that there were protected acts, the Tribunal found a protected act, but
the lack of precision leaves the C with a broad brush assertion that they are said to be
materially causative of acts which we find both in the reasonable adjustment and the
S.15 claim. Ultimately this is a matter for the Tribunal who heard the witnesses but it
is observed above the R’s reasonable engagement with the C in 2011, on the way
forward, negates the suggestion that of the alleged acts or omissions were causatively
motivated by the earlier protective acts.
32. It is noted that the C refers back to the shifting burden of proof on the claims of sex
discrimination and or victimisation, addressed below. It will be noted that the C
unsuccessfully appealed the Tribunal’s original self direction on the burden of proof
and it is respectfully submitted that the Tribunal make reference back to that self-
direction, at para 131 of the Judgment. Not adopting the “2 stage” process in
4102702/12 Page 41
considering the burden of proof is not an error of law, as the C’s unsuccessful appeal
demonstrates. The central question is the reason “why” alleged acts of discrimination
have occurred and a tribunal may proceed to address that question directly and that it
is typically the more satisfactory approach.
33. Lord Hope, in Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054,
at paragraph 32, approved dicta of the former President Underhill J, as he then was,
in Martin v Devonshires Solicitors:
“The points made by the Court of Appeal about the effect of the statute in
these two cases could not be more clearly expressed, and I see no need for
any further guidance [ nb he was there referring to the guidance in the cases
of Igen and Madarassy]. Furthermore, as Underhill J pointed out in Martin v
Devonshires Solicitors [2011] ICR 352, paragraph 39, it is important not to
make too much of the role of the burden of proof provisions. They will require
careful attention where there is room for doubt as to the facts necessary to
establish discrimination. But they have nothing to offer where the tribunal is
in a position to make positive findings on the evidence one way or the other.
That was the position that the tribunal found itself in in this case. It is
regrettable that a final resolution of this case has been so long delayed by
arguments about onus of proof which, on a fair reading of the judgment of
the employment tribunal, were in the end of no real importance.
34. There is no basis for the burden of proof in that the matters alleged are not of
themselves give rise to the inference that the specific decision makers around the
objects of the C’s complaints were motivated by the fact that the C had carried out
protected acts.
35. These claims of victimisation should be rejected.
36. Whether the R discriminated against the C because of her gender contrary to S.13 of
the EqA, the alleged acts of less favourable treatment
4102702/12 Page 42
37. The same reasoning applies in relation to sex discrimination, this is no more than an
unsubstantiated bare assertion.
38. These claims of direct sex discrimination should be rejected.
39.
The Amendment Application
40. The C has applied to amend her Claim to include a claim of direct discrimination,
contrary to S.13 EqA, on the ground that it is alleged that the R treated the C less
favourably than it would have treated others who were not disabled, the acts of less
favourable treatment being relied upon being:
40.1. The R failure to apply its policies
40.2. R’s failure to treat C’s grievance as that
40.3. R’s failure to take steps to extend C’s work permit
40.4. The C’s dismissal C
40.5. dismissing the C without considering other options
41. This amendment is made now, substantially out of time. It is open to the Tribunal to
exercise a discretion to allow a claim substantially out of time under the EqA, on the
basis that it is just and equitable to do so, s.124.
42. It can neither be just nor equitable to permit this here.
42.1. The amendment is proposed after the R has closed its case, the C resisted
the leading of further evidence, and R would be deprived of the ability to
conduct its case knowing that it had to meet this claim;
42.2. No explanation has been provided as to why the application is being made
4102702/12 Page 43
now. The claims were first pleaded by lawyers instructed on behalf of the C
in 2012. Previous applications were made to amend, in relation to holiday
and notice pay, and the possibility of amendment was clearly known;
42.3. Even if material became known, through productions in the case, the
application could have been made before the commencement of the
evidence;
42.4. Even if it formulated on the basis of the oral evidence before the Tribunal
the application could have been made before submissions and at a point
when it was open to the R to lead evidence in rebuttal;
42.5. The C instead does nothing. She maintains her position on the pleaded
case, on which there was judgment and an appeal and the matter is only
before the Tribunal on the basis of the remitted matters.
43. The application should be refused.
DISCUSSION AND DECISION
(i)
Failure to make reasonable adjustments
S20 and s21 of the Equality Act 2010 insofar as material provide:
“20 Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this
section, sections 21 and 22 and the applicable Schedule apply; and for those purposes,
a person on whom the duty is imposed is referred to as A. (2) The duty comprises the
following three requirements (3) The first requirement is a requirement, where a provision,
criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation
to a relevant matter in comparison with persons who are not disabled, to take such steps
as it is reasonable to have to take to avoid the disadvantage.
21 Failure to comply with the duty
4102702/12 Page 44
(1) A failure to comply with the first, second or third requirement is a failure to comply with
a duty to make reasonable adjustments. (2) A discriminates against a disabled person if
A fails to comply with that duty in relation to that person.”
33. In their determination of the claimant’s case on failure to make reasonable
adjustments the Tribunal was guided by the decision of the EAT in this case and the
terms of the remit from the EAT. In doing so, the Tribunal reminded itself that this
case only involves consideration of the first requirement as set out in s20(3).
34. In terms of the claimant’s submissions, as recorded in paragraph 144 of the
Judgment, the PCP is the respondents’ requirement that the claimant attend work
and fulfil her role. The EAT accepted the C’s argument that it is her case that, as a
disabled person with depression, she was unable to return to work at the School of
Engineering and this meant her future employment was put at risk and by
comparison non-disabled people who could attend work at the School of
Engineering would not be put at that risk.
35. In the Joint List of Issues, the claimant’s representative lists 15 steps that the
respondents should have taken. These steps are set out in the Agreed List of Issues,
replicated in paragraph 8 of this Judgment.
36. It is necessary to consider whether each step would be effective in preventing the
substantial disadvantage. (Conway v Community Options Ltd (UK EAT/0034/12;
EHRC Code of Practice on Employment at para 6.28). The Tribunal also bore in
mind that it is important to consider whether a combination of steps could avoid the
substantial disadvantage (Burke v The College of Law and anor 2012 EWCA Civ
87, CA; Home Office (UK Visas and Immigration) v Kuranchie EAT 0202/16) .
There does not necessarily have to be a good or real prospect of an adjustment
removing a disadvantage for that adjustment to be a reasonable one; it is sufficient
for the tribunal to find that there would have been a prospect of it being alleviated
(Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10.
4102702/12 Page 45
37. In this case, the substantial disadvantage is that the claimant, as a disabled person
with depression, was unable to return to work at the School of Engineering which
meant her future employment was at risk. The Tribunal therefore has to look at the
reasonable adjustments directed at overcoming the alleged substantial
disadvantage and achieving the claimant’s return to work. To this end the Tribunal
agrees with the submissions of Mr Reade QC that several of the alleged ‘reasonable
adjustments’ are not steps or actions which would have been effective in preventing
the substantial disadvantage in question – in particular the proposed ‘reasonable
adjustments’ to engage with the claimant in respect of the potential of and warn and
inform the claimant of the removal of her duties as a PHD supervisor; to engage with
the claimant in respect of the potential of and warn and inform the claimant of the
removal of her laboratory; and to maintain the claimant’s pay when absent through
illness and to keep non-payments under review. The claim in respect of these
adjustments fails.
38. S20(3) of the Equality Act 2010 imposes a duty “to take such steps as it is reasonable
to have to take to avoid the disadvantage. “ The question whether proposed steps
are reasonable is a matter for the Employment Tribunal and has to be determined
objectively (Griffiths v Work and Pensions Secretary (CA) (2017) ICR 160 (at
para 73) citing Smith v Churchill Stairlifts plc (2006) ICR 524 at paras 44-45).
39. After consideration of the Tribunal’s Findings in Fact, and given the conclusion that
the respondents were unable to facilitate the claimant’s return to work as an impasse
was reached due to the claimant’s failure to respond constructively to a reasonable
request to engage with Occupational Health, the Tribunal came to the view that (1)
it was not reasonable to expect or require the respondents to take any further steps
to reintegrate the Claimant into work; (2) it was not reasonable to expect or require
the respondents to take the step of contacting the claimant’s GP in order to assess
the claimant’s fitness and ability to return to work; (3) it was not reasonable to expect
or require the respondents to take any further steps to commission expert medical
advice in respect of the claimant’s condition, prognosis and return to work; (4) it was
not reasonable to expect or require the respondents to create a new role for the
claimant and (5) it was not reasonable to expect or require the respondents to
4102702/12 Page 46
provide a ‘brief’ beyond the scope of what they had already provided and indicated
they were willing to provide, to the claimant as a condition precedent to the claimant
being seen by the respondents’ Occupational Health advisers. In this respect the
Tribunal concluded that, because of the impasse reached, which was caused by
the claimant the respondents were unable to obtain the medical information they
required in order to attempt to re-integrate the claimant in an appropriate manner
into the workplace. To this end the Tribunal was mindful of the fact that the claimant
had been absent from her employment with the respondents since January 2010
with work related stress and depression. Against that background the course of
action proposed by Ms Waldron was an eminently sensible and reasonable one.
40. The Tribunal considered that the proposed reasonable adjustment of “failing to avoid
dismissal of the claimant” (as set out in the Agreed List of Issues at 1.9 (paragraph
8)) is not a “reasonable adjustment” in itself. To this end, the Tribunal was collectively
of the view that the “reasonable adjustment” of failing to apply the respondents’ own
procedures and policies (and thus potentially avoiding or reducing the risk of
dismissal) is the appropriate adjustment in this context.
41. After having regard to the evidence and the guidance given by the Employment
Appeal Tribunal in this case the Tribunal finds that it was reasonable to expect and
require the respondents to take the following steps, in order to fulfil the duty to make
reasonable adjustments; (a) to apply the respondents’ own procedures and policies
in respect of sickness absence and disability; (b) to apply their grievance procedure
and dignity and respect policy; (c) to take steps that they reasonably could to try to
ensure the claimant’s immigration status would not be compromised by her
absences caused by her disability and if necessary to take all reasonable steps to
ensure that the claimant would not be at risk of losing her lawful working status; (d)
to apply all of the respondents’ relevant procedures in connection with the claimant’s
dismissal and (e) to engage with the claimant in respect of her work permit status,
informing her of all its options with a view to trying to ensure her work status was not
lost at the expiration of her 5 year work permit. By so engaging there was a prospect
that the substantial disadvantage would be alleviated. These were all steps which
the respondents failed to take but which they should have taken in order to comply
4102702/12 Page 47
with their duty to make reasonable adjustments within the meaning of section 20(1)
of the Equality Act 2010.
42. In determining that, objectively speaking, such adjustments were reasonable the
Tribunal had regard to the fact that many of the proposed adjustments consisted
only of the respondents applying their own policies and procedures. Other
adjustments consisted of engaging with the claimant in respect of her work permit
status to avoid or minimise the risk of her right to remain in the UK and her work
status being imperilled. The Tribunal were at one in finding these were reasonable
steps to expect the respondents to take given that the claimant remained an
employee of the respondents and given the consequences to her of losing that
status.
43. Accordingly, and in respect of these adjustments specified in paragraph 41 only, the
claimant’s case of failure to make reasonable adjustments under s20 and s21 of the
Equality Act 2010 succeeds.
(ii)
Section 15 Complaint
S15 of the Equality Act 2010 provides:
“15 Discrimination arising from disability (1) A person (A) discriminates against a disabled
person (B) if- (a) A treats B unfavourably because of something arising in consequence
of B’s disability, and (b) A cannot show that the treatment is a proportionate means of
achieving a legitimate aim.”
44. In determining the claimant’s claim under s15 of the Equality Act 2010 the
Employment Tribunal was guided by the decision of the EAT in this case and the
dicta in the recent case of Iforce Ltd v Ms E Wood (2019) UK EAT 0167-18-0301
(at paragraph 20). It is there stated:
4102702/12 Page 48
“The correct approach to section 15 was considered by the Court of Appeal in City
of York Council v Grosset (2018) EWCA Civ 1105 where Sales LJ provided the
following guidance from paragraphs:
“36 On its proper construction, section 15 (1)(a) requires an investigation of
two distinct causative issues: (i) did A treat B unfavourably because of an
(identified) “something”? and (ii) did that “something” arise in consequence
of B’s disability? 37 The first issue involves an examination of A’s state of
mind, to establish whether the unfavourable treatment which is in issue
occurred by reason of A’s attitude to the relevant “something”....38 The
second issue is an objective matter, whether there is a causal link between
B’s disability and the relevant “something” ”
45. The Tribunal also had regard to the authority of Williams v Trustees of Swansea
University Pension and Assurance Scheme and Another (2018) UKSC 65 in
finding that insufficiently advantageous treatment does not equate to “unfavourable”
treatment.
46. In advancing the claimant’s case under s15 of the Equality Act 2010 the claimant
relies upon the same steps set out in advancing the case of failure to make
reasonable adjustments. Insofar as the first two matters on that list are concerned
(namely the respondents’ failure to apply their own procedures in respect of sickness
absence and apply their disability policy, and failure to have regard to their
procedures including their grievance policy and dignity and respect policy), the
Tribunal has found that Sheila Gupta believed that the claimant was seeking
settlement and it was for this reason she did not apply the university’s policies and
procedures. The chain of causation is broken in that the failure to apply those
policies and procedures was not ‘something arising in consequence of (the
claimant’s) disability’.
47. Insofar as the issue of ‘unfavourable treatment’ is concerned it is the view of the
Tribunal that the requirements to
4102702/12 Page 49
a. “ensure that the claimant’s immigration status would not be compromised
by her absences and to take all reasonable steps to ensure that the claimant
would not be at risk of losing her lawful working status”
b. to “maintain the claimant’s pay when absent through illness and to keep
non-payments under review”;
c. to “reintegrate the claimant into work”;
d. to “engage with the claimant in respect of her work permit status fully
informing her of options with a view to ensuring the claimant’s work status
was not lost at the expiration of her 5 year work permit”;
e. to “create a new role for the claimant if necessary”
f. to “engage with the claimant in respect of the potential of and warn and
inform the claimant of the removal of her laboratory” and
g. to “engage with the claimant in respect of the potential and warn and inform
the claimant of the removal of her duties as PHD supervisor for Emad”
all constitute advantageous treatment in that in these propositions the claimant
asserts that she was not treated as favourably as she considered she should
be treated. To this end the Tribunal agreed with the proposition of Mr Reade
QC in stating that this is reflected in the fact that the claimant seeks to advance
these matters also as reasonable adjustments.
48. Insofar as it is asserted that the need to “ provide a brief to the claimant as a condition
precedent to the claimant being seen by the respondents’ occupational health
advisors” is concerned, the Tribunal had regard to its findings that in the letter of
19th August 2011 that the respondents undertook to share with the claimant all forms
and other documentation that would be supplied to the chosen OH provider - in
effect, the “brief” to the OH provider chosen by the claimant. In these circumstances
the Tribunal concluded that there was no unfavourable treatment. Likewise with the
need to “re-integrate the claimant into work” and “consider moving the claimant to a
different place of work outside the school of engineering,” the Tribunal found that the
respondents were unable to commence what they described as a “gradual scheme
of re-integration" into the workplace due to the failure on the part of the claimant to
respond to their reasonable request to refer her to OH. That is not something arising
in consequence of the claimant’s disability. For the same reason the claimant’s case
4102702/12 Page 50
under s15 in respect of contacting the claimant’s GP in order to assess the claimant’s
fitness and ability to return fails as on the facts as found by them the Tribunal were
unable to conclude that this was something arising in consequence of the claimant’s
disability.
49. So far as the claimant’s dismissal is concerned, Mr Gorton identified the following
as unfavourable treatment: the respondents failed to avoid dismissing the claimant;
the respondents should not have dismissed the claimant and/or should have taken
all reasonable steps to avoid dismissal; in dismissing the claimant the respondents
failed to apply any of the relevant procedures applicable. As the Tribunal understood
Mr Gorton’s position it was that the unfavourable treatment consisted of a failure on
the part of the university to take all reasonable steps to avoid dismissal and that
failure in turn led to the unfavourable treatment of dismissal. In determining whether
there had been unfavourable treatment, the Tribunal were guided by the EHRC’s
Code of Practice in Employment, paragraph 5.7 of which provides: “For
discrimination arising from disability to occur, a disabled person must have been
treated “unfavourably”. This means that he or she must have been put at a
disadvantage. Often, the disadvantage will be obvious and it will be clear that the
treatment has been unfavourable; for example, a person may have been refused a
job, denied a work opportunity or dismissed from their employment.” After having
regard to this guidance, the Tribunal were of the view that the claimant’s dismissal
(and the prevention of her dismissal) were capable of constituting “unfavourable
treatment” and observed that this a matter which was not disputed by the
respondents.
50. The Tribunal then addressed itself as to whether dismissal arose from “something”
arising from the claimant’s disability and guided themselves that this question has to
be answered as an objective matter of fact. In finding that the dismissal, avoiding
dismissal and taking steps to avoid dismissal (including applying all relevant
procedures) did arise from “something” arising from the claimant’s disability the
Tribunal had regard to the guidance from the EAT in this case. After consideration
of this guidance, the Tribunal concluded that the claimant’s absence was due to her
disability; and that the view that the claimant was never going to return to the
4102702/12 Page 51
employment of the respondents due to her health was reflected in the material part
played by Sheila Gupta in terminating the claimant’s employment without
consideration of other options as admitted by her in evidence (all as recorded in
paragraph 107 of the Judgment) (Bundle 1 p234).In reaching this conclusion the
Tribunal had regard to the arguments of Mr Reade QC that the claimant’s absence
alone was not enough to constitute ‘something’ as the claimant had been absent
since 2010. However, the Tribunal considered that the evidence of Sheila Gupta (as
reflected in paragraph 107 of the Judgment) together with the fact of the claimant’s
absence provided a sufficient causative link to conclude that her dismissal was
“something arising in consequence of” her disability.
51. In these respects the claimant’s case under s15 succeeds. In reaching this
conclusion, the Tribunal had regard to the respondents’ arguments on objective
justification, as set out in their submissions.
52. The Tribunal observed that there were no such arguments made in the original
proceedings, as recorded in paragraph 116 of the original Judgment (Bundle 1
p236). In the absence of amendment the Tribunal concluded that it was not open to
them to consider such arguments made at this stage of proceedings.
(iii) Victimisation and Sex Discrimination
53. The Tribunal proceeded to consider the claimant’s claims of victimisation and sex
discrimination, insofar as not already dealt with in the original judgment. In this
respect the Tribunal were guided by the Joint List of Issues which set out the acts of
victimisation and direct sex discrimination founded upon by the claimant all of which
are reflected in the list of failure to make reasonable adjustments.
54. In determining these issues, the Tribunal firstly concluded that the claimant had done
a number of protected acts, not least of which were her letters of 14th April 2010,
23rd May 2011 and 22nd November 2011.
4102702/12 Page 52
55. In addressing whether the respondents’ failure to apply their policies and procedures
including their sickness absence, disability policy, grievance procedure and dignity
and respect policy was because of the protected acts, or alternatively because of
the claimant’s sex, the Tribunal had regard to their finding that these policies were
not invoked due to Sheila Gupta’s genuine belief that the claimant was seeking
settlement from the respondents.
56. The Tribunal then proceeded to consider the respondents’ failure to maintain the
claimant’s pay when absent through illness. The Tribunal observes that there is no
evidence that the decision in respect of failure to maintain the claimant’s pay (which
was taken in late April 2010) was anything other than the respondents following their
usual policies and procedures in this respect. The Tribunal finds support for this
proposition in their findings arising from the evidence of Professor Alan Murray,
Head of the School of Engineering at the material time (cf para 52 letter of
4th February 2011 and paras 91-94 of the Judgment, Bundle 1 pages 219 and 230).
At paragraph 91 the Tribunal finds: “91 The Tribunal were of the collective opinion
Professor Alan Murray came across as an inherently reasonable and measured
individual. In his dealings with the claimant the Tribunal concluded that Professor
Alan Murray had only attempted to resolve situations and assist the claimant albeit
that at times the claimant perceived his correspondence to be patronising”. These
findings were unsuccessfully challenged on Appeal. In circumstances where, at the
time the decision was made to reduce the claimant’s pay the Head of the School of
Engineering was attempting to resolve matters between the claimant and the
respondents the Tribunal is of the collective opinion that the claimant’s claims of
victimisation and sex discrimination based on her reduction of pay in late April 2010
must fail.
57. The respondent’s failure to engage with the claimant in respect of the potential of
and warn and inform her of the removal of her laboratory and engage with her in
respect of the potential of and warn and inform her of the removal of her duties as
PHD supervisor for Emad are all issues of victimisation that are already covered in
the Judgment at paragraph 193 (Bundle 1, page 253). The Tribunal finds that these
acts are solely acts of victimisation which arose from the claimant’s protected act of
14th April 2010, being a grievance the subject matter of which was sex discrimination
4102702/12 Page 53
(Finding in Fact 43, Bundle 1 page 215). The claimant’s claims of sex discrimination
in this respect are therefore dismissed.
58. The Tribunal then considered the claimant’s claims of victimisation and sex
discrimination in respect of the respondents’ failure to create the claimant a new
role, failure to consider moving the claimant to a different place of work, failure to
reintegrate the claimant into work, failure to contact her GP in order to assess her
fitness and ability to return to work, failure to commission expert medical advice in
respect of her condition, prognosis and return to work and failure to provide a brief
to the claimant as a condition precedent to the claimant being seen by the
respondents’ Occupational Health Advisers. In view of the Tribunal’s additional
Findings in Fact the Tribunal are of the collective opinion that these claims must fail.
To this end the Tribunal finds that in December 2016 there was an impasse with
regard to the claimant’s re-integration into the workplace due to lack of medical
information; that the request for medical information was a reasonable request, given
the claimant’s absence from the workplace since January 2010; and that that
impasse was occasioned by the claimant’s failure to select one of the three OH
providers set out in the letter from Dr Kim Waldron to the claimant of 19th August
2011. Insofar as the respondents’ failure to provide the “brief” was concerned, the
Tribunal were of the collective view that the offer to show the claimant all relevant
forms and documentation submitted to the chosen OH provider (as contained within
the letter of 19th August 2011) would, in effect, be the ‘brief’ to the chosen OH
provider. For these reasons the Tribunal considers the claimant’s claims of
victimisation and sex discrimination in these respects must fail.
59. The Tribunal then considered the claimant’s claims of victimisation and sex
discrimination in respect of the respondents’ failure to take all steps to ensure the
claimant’s immigration status would not be compromised by the claimant’s
absences; failure to engage with the claimant in respect of her work permit status;
failure to take all reasonable steps to avoid dismissing the claimant; failure to avoid
dismissing the claimant; failure to apply any of the relevant procedures applicable in
dismissal including their disability policy, dignity and respect policy, absence
management policy and unauthorised absence policy. In this respect the Tribunal
had regard again to the Tribunal’s Observations on the Evidence insofar as Sheila
4102702/12 Page 54
Gupta was concerned and to the observations in paragraph 107 where it is stated:
“The view that the claimant was never going to return to the employment of the
respondents due to her health was reflected in the material part played by Sheila
Gupta in terminating the claimant’s employment without consideration of other
options (as freely admitted by her in evidence).” (Bundle 1 p107). This observation
was unchallenged on Appeal and accordingly led the Tribunal to conclude that the
dismissal of the claimant by letter dated 11th January 2012 on the grounds of the
expiration of the her work permit ( para 70 of the Judgment Bundle 1 p 224-225)
arose from the view that the claimant was never going to return to the employment
of the respondents due to her ill health. In these circumstances it is the unanimous
decision of the Tribunal to dismiss the claimant’s claims of sex discrimination and
victimisation on these grounds.
60. The claimant’s additional claims of sex discrimination and victimisation are therefore
dismissed.
(iv) Burden of Proof
61. The challenge to the Tribunal’s findings on the application of the burden of proof was
unsuccessful on Appeal. As the Tribunal have again been able to make positive
findings as to the “reason why” any less favourable treatment took place, the
Tribunal is collectively of the view that there is no need to consider further the shifting
burden of proof.
(v) The Amendment
62. Finally, the claimant’s counsel, Simon Gorton QC moved to amend the claim to
include a further claim of direct disability discrimination under s13 of the Equality Act
2010. In support of his application to amend, Mr Gorton submitted that the claim
arises directly out of admissions made by Sheila Gupta as to why certain steps that
the respondents were expected to take were not taken. Mr Gorton submitted that
the comparator was Professor Brandini or a non-disabled hypothetical comparator.
63. Mr Reade for the respondents opposed the amendment on the basis that the
amendment is substantially out of time; that it cannot be just and equitable to permit
4102702/12 Page 55
an extension of time under s123 of the Equality Act 2010 as the claimant has had
the benefit of legal advice since 2012; there have been previous applications to
amend to include cases of notice pay and holiday pay; and the application, coming
as it does after the respondents have closed their case, comes too late in the day.
In this respect, Mr Reade submitted that it would have been open to the claimant to
make the application to amend prior to submissions in the case when there was still
opportunity for the respondents to lead evidence in rebuttal.
64. The Tribunal considered the application to amend. In doing so, it was guided by the
well-known principles in the case of Selkent v Moore (1996) ICR 836, EAT. To this
end the Tribunal considered the fact that such claims come some 7 years out of time
and that there is force in the argument that even if the claimant had sought to amend
her claim before submissions then the respondents would have been able to answer
such amendment. In all these circumstances the Tribunal concluded that the balance
of hardship and injustice favours the respondents in being faced with an additional
claim that it is too late to answer, and accordingly the amendment is refused.
(vi) Further Procedure
65. On joint application, the Hearing on Remedy listed for the 15th July 2019 was
discharged on the basis that there will be insufficient time to prepare for the same.
Date Listing letters will be sent out to re-list the Hearing on Remedy. In the
meantime, the parties undertook to co-operate and liaise with one another in
obtaining additional psychiatric evidence from Dr Scott, in updating the issue of loss
and in preparing for the Hearing on Remedy generally.
Employment Judge:
Jane Porter
Date of Judgment:
15 May 2019
Entered in Register
and Copied to Parties:
15 May 2019
---
ETZ4(WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4102702/12 & 4107069/12
Held in Edinburgh on the 9th and 10th of March 2020 and the 21st April 2020
Employment Judge J Porter
Tribunal Member Z Van Zwanenberg
Tribunal Member R Duguid
Professor R Sheikholeslami
Claimant
Represented by
Mr S Gorton, Counsel
University of Edinburgh
Respondents
Represented by
Mr D Reade, Counsel
Instructing Solicitor
Mr P Brown
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
It is the judgment of the Employment Tribunal to order the respondents to make payment
to the claimant of (i) the sum of £2,850 basic award and £312.50 compensatory award in
respect of her claim for unfair dismissal; (ii) the sum of £8,241.52 gross in respect of the
claimant’s claim of holiday pay; (iii) the sum of £2,000 with interest of £1,360 in respect of
the claimant’s claim of failure to make reasonable adjustments; (iv) the sum of £2,800
with interest of £2,072 in respect of the claimant’s claim of victimisation; (v) the sum of
£25,000 with interest of £16,200 together with a monetary sum equivalent to 8 months’
4102702/12 & 4107069/12 Page 2
NHS benefits plus interest in respect of her claim of discrimination arising from disability.
The Tribunal makes no award in respect of the claimant’s claim for psychiatric injury.
REASONS
Introduction
1.
This case has considerable procedural history. By Judgments dated 15th March
2017 and 15th May 2019 (following a Judgment and remit from the EAT of
5th October 2018) the claimant’s claims of discrimination arising from disability,
breach of duty to make reasonable adjustments and victimisation succeeded in part
under the provisions of sections 15, 20, 21 and 27 of the Equality Act 2010. The
claimant’s claims of unfair dismissal under section 98 of the Employment Rights Act
1996 and failure to pay holiday pay also succeeded.
2.
Against that background, a Hearing on Remedy was fixed for the 9th and 10th March
2020 and the 21st April 2020. At the Hearing on Remedy the claimant gave evidence
herself and led evidence from Dr Sarah Kennedy, her treating psychiatrist. The
respondents led evidence from June Bell, formerly employed as Head of Human
Resources for the University of Edinburgh’s College of Science and Engineering.
Dr Jacqueline Scott, also a psychiatrist, gave evidence as a jointly instructed expert.
Her evidence was taken (with the agreement of both parties) by video link on the
21st April 2020. The evidence in chief of the witnesses was provided by witness
statements.
3.
The parties produced a Joint Bundle of Documentation numbered 1-1043.
4.
At the outset of the Hearing the parties were reminded that the Hearing on Remedy
was not an opportunity to revisit the factual findings made in the Judgments of the
15th March 2017 and the 15th May 2019. The Tribunal found that in certain respects
the evidence heard at the Hearing in 2015-2016 and the facts found in their two
judgments were relevant to the issue of Remedy.
4102702/12 & 4107069/12 Page 3
Findings in Fact
5.
The claimant was absent from her employment with the respondents from January
2010 with work related stress and depression. The Tribunal found that since 2010
the claimant has experienced and continues to suffer from anxiety and depression
and continues to suffer from significant psychiatric symptoms. The symptoms
experienced by the claimant include difficulty in sleeping, concentrating, studying,
and engaging in any normal social contact or activity.
6.
The Tribunal accepted the evidence of June Bell that in spring 2010 an attempt was
made by the respondents to refer the claimant to their Occupational Health service.
The claimant failed to attend 3 Occupational Health appointments at that time. The
respondents did not pursue the issue of attending an Occupational Health
consultation with the claimant further in 2010, it being their practice not to persist in
such circumstances as they considered it could be perceived as harassing the
employee. However, the issue of a referral to Occupational Health was revisited by
Dr Kim Waldron with a view to the claimant’s reintegration to work in the
correspondence of 19th July 2011, 21st July 2011, 19th August 2011 and 13th October
2011 (para 9, judgment of 15th May 2017).
7.
The Tribunal accepted the evidence of Dr Kennedy that where, following an
employee commencing a period of sick leave, there is an expeditious referral to
Occupational Health such a referral is “usually successful” in bringing the employee
back to work. The Tribunal also accepted the evidence of Dr Kennedy that unless
a referral to Occupational Health comes reasonably soon after the employee’s
absence commences it is usual for the employee to view with suspicion any
subsequent approach by their employer asking them to engage with Occupational
Health.
8.
The Tribunal accepted the evidence of Dr Kennedy that when the claimant was first
absent from her employment with work related stress and depression in early 2010,
“given the lack of past psychiatric history I would have deemed her prognosis at that
time to be good with a full recovery should she have been able to return to a
4102702/12 & 4107069/12 Page 4
supportive environment with issues which she identifies as stressful being
addressed” (817). In accepting the evidence of Dr Kennedy on this point, the
Tribunal observed that it did not differ to any material extent from the evidence of
Dr Jacqueline Scott who spoke of the pattern being one of gradual recovery, and
there being a better prognosis in the absence of significant pre existing psychiatric
history or vulnerability (818.2)
9.
The Tribunal accepted the evidence of Dr Kennedy (to be found in her report (815-
818)) that in the period between January 2010 and December 2011: “I would have
expected her to become fit enough to return to work at any time during her time off.
The factors which perpetuated her illness were work related and there were no
external factors contributing to low mood.” To this end, the Tribunal accepted
Dr Kennedy’s explanation that the claimant is unusual in that her work is her life and
that at that time there were few stressors present in her life aside from her work.
10. In reaching this conclusion, the Tribunal gave consideration to the evidence of
Dr Scott to the effect that it is impossible to speculate whether the claimant would
have been fit to return to work in the period January 2010 to December 2011 (818.2).
The Tribunal preferred the evidence of Dr Kennedy in this respect as under cross
examination and with reference to the activities listed in 358-359 Dr Scott did
acknowledge that the claimant was fit for some work in this period.
11. The Tribunal considered carefully the evidence of Dr Kennedy and Dr Scott to the
questions posed on the issue of the link between the claimant’s referral to specialist
care in February 2012 and her dismissal and the link between the claimant’s
significant psychiatric symptoms in 2012 requiring periods of hospitalisation and her
dismissal. After such consideration the Tribunal preferred the evidence of Dr Scott,
that psychosocial stressors including persistent stress caused the claimant’s ill
health. In evidence, Dr Scott described psychosocial stress as any stressor that an
individual might encounter in life including, for example, difficulties with academic
and immigration status and difficulties with finances and housing.
4102702/12 & 4107069/12 Page 5
12. Although there was not a significant difference between the evidence of Dr Kennedy
and Dr Scott in this respect (Dr Kennedy stating that the claimant’s issues relating
to her work were the major underlying factors in her decline in health) the Tribunal
preferred the evidence of Dr Scott as they considered it to be more measured and
thorough. In reaching this conclusion the Tribunal observed that Dr Scott has had
the benefit of compiling four separate reports on the condition of the claimant. In
concluding that the report of Dr Scott was more thorough, the Tribunal also observed
that in her report of 7th February 2020 Dr Kennedy omitted making reference to the
claimant’s admission to hospital in March 2012.
13. For these reasons the Tribunal preferred the conclusions drawn by Dr Scott in her
report and considered her conclusions to be more thorough and balanced than those
of Dr Kennedy. In doing so, the Tribunal found that the claimant does not suffer from
PTSD or a dissociative disorder as diagnosed by Dr Kennedy.
14. The Tribunal observed that both Dr Kennedy and Dr Scott gave evidence that the
dismissal of the claimant and the discovery that she had been victimised impacted
upon her health. The Tribunal observed that the wording used by Dr Scott - namely
that such actions by the respondents would have been a significant stress and on
balance would have had a negative and detrimental impact on the claimant’s health-
was more measured that the corresponding answer by Dr Kennedy and for this
reason accepted the explanation of Dr Scott in evidence.
15. The Tribunal had regard to the evidence of Dr Kennedy and Dr Scott on the
consequences of the dismissal to the claimant’s long term mental health. The
evidence reflected the terms of their reports (815, 818.1). Again, there was little
difference in the evidence given by both psychiatrists; on balance, the Tribunal
preferred the evidence of Dr Scott in stating that it is only possible to state that the
majority of individuals recover from depressive or anxiety symptoms, but that the
ongoing stress would have significantly influenced the claimant’s recovery. In
preferring the wording of Dr Scott, the Tribunal observed that she has had the benefit
of compiling four reports on the claimant, dating back to her first report of November
2014.
4102702/12 & 4107069/12 Page 6
16. For the same reasons, the Tribunal also preferred the evidence of Dr Scott and did
not find in fact that the actions of the respondents have caused or materially
contributed to the claimant’s ongoing incapacity to work.
17. Again, the Tribunal preferred the more measured tones of Dr Scott in finding that the
claimant’s post dismissal immigration status would be classed as a further stress
influencing her mental health; her inability to access public funds would be classed
as a further significant stress and would undoubtedly have impacted her ability to
recover from her ongoing psychiatric conditions; and the loss of her right to access
the NHS would be a psychosocial stressor.
18. On the issue of the claimant’s prognosis, the Tribunal found that the evidence of
Dr Scott provided some clarity in what is a difficult area and therefore preferred that
evidence to the evidence given by Dr Kennedy. The evidence of Dr Scott was that
it is hoped that with the conclusion of the present proceedings the claimant will begin
recovery of her psychiatric symptoms. In her oral evidence, Dr Scott stated that 30%
of those who suffer from a depressive illness never recover; and in her evidence did
not categorise the claimant as belonging to that 30%.
19. The Tribunal were unable to make any Findings in Fact on what the consequences
would have been for the claimant’s health had she been fairly dismissed from her
employment with the respondents as no evidence was led of the same.
20. Insofar as holiday pay is concerned, the Tribunal accepted the evidence of June Bell
(which was not subject to cross examination) that all holiday pay due to the claimant
was the subject of an arrestment by Sheriff Officers and was paid over to Shepherd
& Wedderburn Solicitors in satisfaction of an earnings arrestment. There was no
evidence that the claimant was due any further sums by way of holiday pay.
21. Notwithstanding the foregoing, however, the Tribunal noted that in their submissions
the respondents state that the claimant is entitled to a further 28 days’ holiday pay.
This sum equates to the figure of £8,241.52 gross.
4102702/12 & 4107069/12 Page 7
22. The Tribunal accepted the evidence of June Bell and finds in fact that as the claimant
commenced her employment on point 61 of the salary scale the only way for her to
progress would have been for her to be nominated by her line manager and for that
recommendation to be