← Back to searchEmployment Tribunal
- Case Number
- 2206237/2018
- Claimant
- Mrs R Wright-Turner
- Respondent
- London Borough of Hammersmith and Fulham and Ms K Dero
- Venue
- England and Wales
- Hearing Date
- 5 November 2021
- Judge
- Employment Judge Khan
- Claimant Representative
- Mrs R Wright-Turner
- Respondent Representative
- Mr D Basu QC, Counsel
- Judgment Type
- preliminary hearing will be held to list a remedy hearing and make any
- Compensation
- £3,780,587
- Jurisdiction
- Breach of ContractDisability DiscriminationPublic Interest DisclosureandUnfair Dismissal
Judgment
The unanimous judgment of the tribunal is that:
(1) At all relevant times, the claimant was disabled by reference to ADHD
and PSTD / other psychological symptoms and the respondents had
knowledge of the same.
(2) The harassment complaint succeeds in part (paras 37(1)(a), (c) & (d)
POC)
(3) The direct discrimination complaint succeeds in part (paras 37(2) & (5)
POC)
(4) The discrimination arising from disability complaint succeeds in part
(paras 39(1) & (4) POC).
(5) The first respondent failed unreasonably to comply with the ACAS Code
of Practice on Disciplinary and Grievance Procedures.
(6) All the other complaints fail and are dismissed.
Case No: 2206237/2018
2
Reasons
1. By a claim presented on 28 September 2018 the claimant brought
complaints of disability discrimination, detriment and automatic unfair
dismissal (protected disclosures) and unauthorised deductions / breach of
contract. The respondents resisted these complaints.
2. The description of disability which the claimant relied on was amended by
agreement on day one of the hearing as set out below.
The issues
3. We were required to determine the issues listed below which were agreed
by the parties in advance and refined following discussion with them during
the final hearing.
A. Disability (section 6 & Schedule 1 of the Equality Act 2010 (“EQA”))
1. Did the claimant suffer from a mental impairment at the relevant
times by reason of (i) ADHD and/or (ii) PTSD / other psychological
symptoms identified in the Joint Statement of the expert
psychiatrists?
2. Did the impairment/s have a substantial and long-term adverse effect
on the claimant’s ability to carry out normal day-to-day activities? In
particular:
(1)
was the effect of the impairment/s (taken in the absence of
treatment or other measures) more than trivial?
(2)
did the impairment/s last, or were they likely to last, at least 12
months?
3. Did the first and/or the second respondent know, or could they
reasonably be expected to have known, that the claimant was
disabled?
B. Direct discrimination (section 13 EQA)
4. Did the treatment alleged by the claimant at paras 37(1) – (6) of the
particulars of claim (“POC”) occur? The alleged treatment is alleged
to have been carried out by both respondents.
Paras 37(1) – (6) POC
(1)
In the course of the meeting on 2 May 2018:
a. Repeating to the claimant the suggestion that her brain
“doesn’t work like other people’s”.
b. Suggesting that the claimant’s actions in sending the
email in question were inappropriate or irrational, and
Case No: 2206237/2018
3
that someone who did not have ADHD would not have
sent the email.
c. Telling the claimant that she did not realise she was
being serious when discussing ADHD.
d. Accusing the claimant of failing to declare her disabilities
to the first respondent during the recruitment process.
e. When the claimant attempted to explain her conditions,
taking no interest in learning about them.
f. Asking about reasonable adjustments when the
circumstances did not disclose a need for that enquiry.
g. Suggesting that the claimant was incapable of
performing her role.
h. Conveying to the claimant that, in light of her disabilities,
she regretted her appointment.
i. Informing the claimant (without prior discussion) that the
HR Director would be appointed a “buddy” to support the
claimant, when no such buddy was required.
(2)
Informing the claimant that her probation period had been
extended by three months (by letter dated 10 May, postmarked
17 May and received by the claimant on 19 May 2018).
Furthermore, doing so:
a. without giving her the opportunity to discuss or comment
on the decision before it was taken;
b. without having provided feedback on her performance in
accordance with the first respondent’s policy or at all;
c. after (by both the second respondent and Mr Grimley)
having described the claimant’s in positive terms;
d. without explaining which areas of performance required
improvement; and
e. when she was on sick leave.
The respondents accept (a) & (e) and deny (b) – (d).
(3)
Making repeated attempts to meet with the claimant while she
was on disability-related sick leave i.e. on 24 May and 24 July
2018.
(4)
Refusing to deal with the claimant’s grievance as sent by her
solicitors on 1 August 2018.
(5)
Dismissing the claimant with effect on 9 August 2018. The
claimant says this decision was taken on 2 August. The
respondents say this decision was taken around 23 July with a
final discussion between the second respondent and Mark
Grimley on 30 July 2018. Furthermore, doing so without giving
her:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal; or
c. any opportunity to appeal.
Case No: 2206237/2018
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(6)
Failing to respond adequately or at all to the claimant’s further
grievance and request for an appeal sent by her solicitors on 15
August 2015.
5. Was the claimant thereby treated less favourably than a hypothetical
non-disabled comparator because of her alleged disability/ies?
C. Discrimination arising from disability (section 15 EQA)
6. Did the treatment alleged by the claimant at paras 39(1) – (5) POC
occur?
Paras 39(1) – (5) POC
(1)
Informing the claimant that her probation period had been
extended by three months (by letter dated 10 May, postmarked
17 May and received by the claimant on 19 May 2018).
Furthermore, doing so:
a. without giving her the opportunity to discuss or comment
on the decision before it was taken;
b. without having provided feedback on her performance in
accordance with the first respondent’s policy or at all;
c. after (by both the second respondent and Mr Grimley)
having described the claimant’s in positive terms;
d. without explaining which areas of performance required
improvement; and
e. when she was on sick leave.
(2)
Making repeated attempts to meet with the claimant while she
was on disability-related sick leave i.e. on 24 May and 24 July
2018.
(3)
Refusing to deal with the claimant’s grievance as sent by her
solicitors on 1 August 2018.
(4)
Dismissing the claimant. Furthermore, doing so without giving
her:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal; or
c. any opportunity to appeal.
(5)
Failing to respond adequately or at all to the claimant’s further
grievance and request for an appeal sent by her solicitors on 15
August 2015.
7. Was the claimant thereby treated unfavourably because of her actual
and/or alleged disability-related sickness absence?
8. Was the claimant’s actual and/or alleged sickness absence
something arising in consequence of her alleged disability/ies?
Case No: 2206237/2018
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9. Can the first or second respondent show that the treatment was a
proportionate means of achieving a legitimate aim? The respondents
rely on para 34 of the amended grounds of resistance (“GOR”).
Para 34 amended GOR
As to justification:
(i)
It was both reasonable and standard practice for the first
respondent to extend the probationary period of an employee,
where that period had not been satisfactorily completed owing
to performance issues.
(ii)
In the circumstances, it was reasonable for the respondents to
try to maintain some level of contact with the claimant while she
was absent with what the respondents understood to be work-
related stress.
(iii) The letter referred of 1 August indicated that the claimant
intended bringing a grievance; the first respondent was entitled
to respond as it did.
(iv) The first respondent was entitled to dismiss the claimant in
circumstances where her probationary period had been
extended and there were ongoing performance issues and to
do so without involving her in that decision.
(v)
The first respondent’s response to the claimant’s solicitor’s
letter of 15 August was adequate in the circumstances.
D. Failure to make reasonable adjustments (section 20 & 21 EQA)
10. Did the respondents operate the provisions, criteria or practices
(“PCPs”) at paras 41(1) – (7) POC1?
Paras 41(1) – (7) POC
(1)
Informing an employee of a decision to extend probation while
she is absent on disability-related sick leave.
(2)
Failing to give an employee who is absent on disability-related
sick leave:
a. the opportunity to discuss or comment on a decision to
extend probation before it was taken;
b. proper and timely feedback on her performance (in
accordance with the first respondent’s Probation Policy
or at all);
c. an explanation as to which areas of performance
required improvement.
(3)
Attempting to hold meetings with an employee when she is
absent on disability-related sick leave.
(4)
Refusing to deal with a grievance filed by solicitors.
1 There is no para 41(5)
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(6)
Dismissing an employee while on disability-related sick leave
and without giving:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal;
c. any opportunity to appeal.
(7)
Failing to respond adequately or at all to a further grievance and
request for an appeal sent by an employee who is absent on
disability-related sick leave.
11. If so, did those PCPs put the claimant at a substantial disadvantage
in comparison with a non-disabled employee?
12. Was it reasonable for the respondents to take the steps at paras
42(1) – (9) POC2 in order to avoid the disadvantage to the claimant?
Paras 42(1) – (9) POC
(1)
Ensuring no decision was taken to extend her probation while
she was absent on disability-related sick leave
(2)
Ensuring that the claimant was given, at a time when she was
not on disability-related sick leave:
a. the opportunity to discuss or comment on a decision to
extend probation before it was taken;
b. proper and timely feedback on her performance (in
accordance with the first respondent’s policy or at all).
c. an explanation as to which areas of performance
required improvement.
(3)
Waiting for the claimant’s return to work before holdings
meetings with her.
(4)
Dealing with the claimant’s grievance which was filed by her
solicitors.
(8)
Ensuring that a decision to dismiss was not taken when the
claimant was on sick leave and without giving:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal;
c. any opportunity to appeal.
(9)
Responding appropriately to the claimant’s further grievance
and request for an appeal.
13. Were those steps taken?
2 There are no paras 42(5) – (7)
Case No: 2206237/2018
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E. Harassment (section 26 EQA)
14. Did the conduct alleged at paras 37 – 41 POC occur?
15. Was it unwanted conduct?
16. Was it conduct related to the claimant’s alleged disability/ies namely
her actual / perceived disability-related sickness absence?
17. Did that conduct:
(1)
Have the purpose of violating the claimant’s dignity or creating
an intimidating, hostile, degrading, humiliating or offensive
environment for her?
(2)
Have the effect of violating the claimant’s dignity or creating an
intimidating, hostile, degrading, humiliating or offensive
environment for her?
F. Victimisation (section 27 EQA)
18. It is accepted that the sending of the claimant’s letter of grievance
dated 1 August 2018 was a protected act within the meaning of
s.27(1) EQA.
19. Was the claimant dismissed because she sent the said letter?
G. Protected disclosures (sections 43A – H & 47B of the Employment
Act 1996 (“ERA))
20. Did the claimant make disclosures of information to her employer as
alleged at paras 46(1) – (8) POC and, specifically, by reference to
the documents enumerated in Appendix 1 of the claimant’s closing
submissions?
(1)
She raised concerns about contractual arrangements and
governance for shared services.
(2)
She raised issues with the PSR Budget and risks including the
non-delivery of statutory services and third party contracts.
(3)
She raised concerns about member behaviour, the member
Code of Conduct, the first respondent’s constitution and
scheme of delegation.
(4)
She raised concerns about GDPR compliance in third party
arrangements.
(5)
She raised concerns about the waiving of notice periods in
breach of contract thereby risking delivery of statutory duties,
service quality and management.
Case No: 2206237/2018
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(6)
She raised concerns about the first respondent’s employment
duties and duty of care to employees.
(7)
She raised concerns regarding facilities management, and, in
particular, health and safety corporate responsibilities.
(8)
She raised allegations of disability discrimination.
21. If so, did the claimant make the disclosures in the reasonable belief
that:
(1)
the information tended to show that a breach of a legal
obligation had occurred; and
(2)
the disclosures were in the public interest?
22. Did the treatment alleged by the claimant at paras 37(1) – (6) POC
occur?
23. Was the claimant subjected to that treatment by the first and/or the
second respondent on the ground that she had made one or more of
the disclosures?
24. Did the second respondent decide that the claimant should be
dismissed?
25. If so, was the claimant dismissed as a consequence of that decision?
26. Did the second respondent take that decision on the ground that the
claimant had made one or more of the disclosures?
27. Was the second respondent at the relevant times another worker of
the first respondent?
28. Was the reason or the principal reason for the claimant’s dismissal
by the first respondent that she had made one or more of the
disclosures set out as issue 23 above?
H. Unauthorised deductions from wages / Breach of contract
29. Was the sum of £15,133.58 deducted from the claimant’s pay by the
first respondent?
30. Did that deduction amount to:
(1)
An unauthorised deduction from the claimant’s wages in
contravention of section 13 ERA?
(2)
A breach of the claimant’s contract?
I. ACAS Code of Practice
31. Did the matters alleged at paras 53(1) – (3) POC occur?
Case No: 2206237/2018
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Paras 53(1) – (3) POC
(1)
the refusal to deal with the claimant’s grievance;
(2)
the failure to follow any procedure in dismissing the claimant,
and in particular:
a. the lack of warning;
b. the lack of opportunity to make representations, orally or
in writing;
c. the failure to give reasons;
(3)
the failure to give any right of appeal.
32. Was the first respondent in breach of the ACAS Code of Practice on
Disciplinary and Grievance Procedures?
33. If so, what is the uplift which should be awarded pursuant to section
207A of the Trade Union and Labour Relations (Consolidation) Act
1992?
Relevant legal principles
Disability
4. Disability is defined by section 6 EQA:
(1) A person (P) has a disability if— (a) P has a physical or mental
impairment, and (b) the impairment has a substantial and long-term
adverse effect on P's ability to carry out normal day-to-day activities.
…
(4) This Act (except Part 12 and section 190) applies in relation to a person
who has had a disability as it applies in relation to a person who has the
disability; accordingly (except in that Part and that section)— (a) a
reference (however expressed) to a person who has a disability includes a
reference to a person who has had the disability, and (b) a reference
(however expressed) to a person who does not have a disability includes a
reference to a person who has not had the disability.
(6) Schedule 1 (disability: supplementary provision) has effect.
5. Section 212 EQA defines ‘substantial’ as meaning more than minor or trivial.
6. Paragraph 2 of schedule 1 EQA provides, in respect of ‘long-term’ effects:
(1) The effect of an impairment is long-term if— (a) it has lasted for at least
12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to
last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a
person's ability to carry out normal day-to-day activities, it is to be treated
as continuing to have that effect if that effect is likely to recur.
Case No: 2206237/2018
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7. ‘Likely’ means that it could well happen (see SCA Packaging Ltd v Boyle
[2009] ICR 1056; and also the EQA Guidance on matters to be taken into
account in determining questions relating to the definition of disability).
Direct discrimination
8. Section 13(1) EQA provides that a person (A) discriminates against another
(B) if, because of a protected characteristic, A treats B less favourably than
A treats or would treat others.
9. The protected characteristic need not be the only reason for the treatment
but it must have been a substantial or “effective cause”. The basic question
is “What, out of the whole complex of facts before the tribunal, is the
‘effective and predominant cause’ or the ‘real or efficient cause’ of the act
complained of?” (O’Neill v Governors of St Thomas More RC Voluntarily
Aided Upper School and anor 1997 ICR 33, EAT).
10. The test is what was the putative discriminator’s conscious or subconscious
reason for the impugned treatment (see Nagarajan v London Regional
Transport 1999 ICR 877, HL).
11. Under section 23(1), when a comparison is made, there must be no material
difference between the circumstances relating to each case. Under section
23(2), where the protected characteristic is disability, the circumstances
relating to a case include a person’s abilities.
Discrimination arising from disability
12. Under section 15(1) EQA a person (A) discriminates against a disabled
person (B) if A treats B unfavourably because of something arising in
consequence of B’s disability and A cannot show that the treatment is a
proportionate means of achieving a legitimate aim.
13. Unfavourable treatment is not defined, the EHRC Code of Practice of
Employment says “must have been put at a disadvantage”. There is no need
for a comparator.
14. The unfavourable treatment must be shown by the claimant to be “because
of something arising in consequence of his [or her] disability”. The tribunal
must ask what the reason for this alleged treatment was. This need not be
the sole reason but it must be a significant or at least more than trivial reason
(see Secretary of State for Justice and anor v Dunn UKEAT/0234/16/DM).
If this is not obvious then the tribunal must enquire about mental processes
– conscious or subconscious – of the alleged discriminator (see R (on the
application of E) v Governing Body of JFS and The Admissions Appeal
Panel of JFS and Ors [2010] IRLR, 136, SC).
15. In Pnaiser v NHS England [2016] IRLR 170 Mrs Justice Simler set out the
following guidance:
(1) A tribunal must first identify whether there was unfavourable treatment
and by whom.
Case No: 2206237/2018
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(2) The tribunal must determine the reason for or cause of the impugned
treatment. This will require an examination of the conscious or
unconscious thought processes of the putative discriminator. The
something that causes the unfavourable treatment need not be the main
or sole reason but must have at least a significant (or more than trivial)
influence on the unfavourable treatment and amount to an effective
reason for or cause of it. Motive is irrelevant. The focus of this part of
the enquiry is on the reason for or cause of the impugned treatment.
(3) The tribunal must determine whether the reason or cause is something
arising in consequence of B’s disability. The causal link between the
something that causes the unfavourable treatment and the disability
may include more than one link. The more links in the chain the harder
it is likely to be to establish the requisite connection as a matter of fact.
This stage of the causation test involves an objective question and does
not depend on the thought processes of the alleged discriminator.
(4) The “because of” enquiry therefore involves two stages: firstly, A’s
explanation for the treatment (and conscious or unconscious reasons
for it) and secondly, whether (as a matter of fact rather than belief) the
“something” was a consequence of the disability. It does not matter
precisely in which order these questions are addressed.
16. The employer will escape liability if it is able to objectively justify the
unfavourable treatment that has been found to arise in consequence of the
disability. The aim pursued by the employer must be legal, it should not be
discriminatory in itself and must represent a real, and objective
consideration. As to proportionality, the Code notes that the measure
adopted by the employer does not have to be the only way of achieving the
aim being relied on but the treatment will not be proportionate if less
discriminatory measures could have been taken to achieve the same
objective.
Harassment
17. Section 26(4) EQA provides that:
(1) A person (A) harasses another (B) if –
(a) A engages in unwanted conduct related to a relevant protected
characteristic, and
(b) the conduct has the purpose or effect of –
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or
offensive environment for B.
…
(4) In deciding whether conduct has the effect referred to in section (1)(b),
each of the following must be taken into account –
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
18. In deciding whether the conduct “related to” a protected characteristic
consideration must be given to the mental processes of the putative
harasser (see GMB v Henderson [2016] IRLR 340, CA).
Case No: 2206237/2018
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19. In Pemberton v Inwood [2018] IRLR 542, CA Underhill LJ re-formulated his
earlier guidance in Richmond Pharmacology v Dhaliwal [2009] IRLR 336,
EAT, as follows:
''In order to decide whether any conduct falling within sub-paragraph (1)(a)
of section 26 EqA has either of the proscribed effects under sub-paragraph
(1)(b), a tribunal must consider both (by reason of sub-section 4(a))
whether the putative victim perceives themselves to have suffered the
effect in question (the subjective question) and (by reason of sub-section
4(c)) whether it was reasonable for the conduct to be regarded as having
that effect (the objective question). It must also take into account all the
other circumstances (subsection 4(b)). The relevance of the subjective
question is that if the claimant does not perceive their dignity to have been
violated, or an adverse environment created, then the conduct should not
be found to have had that effect. The relevance of the objective question is
that if it was not reasonable for the conduct to be regarded as violating the
claimant’s dignity or creating an adverse environment for him or her, then
it should not be found to have done so.''
20. The claimant’s subjective perception of the offence must therefore be
objectively reasonable.
Reasonable adjustments
21. The duty to make reasonable adjustments is set out in sections 20 – 21
EQA. Where a provision, criterion or practice (“PCP”) of the employer puts
a disabled person at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, the employer is
required to take such steps as it is reasonable to have to take to avoid the
disadvantage.
22. Under Schedule 8, paragraph 5(1), a ‘relevant matter’ is either deciding to
whom to offer employment or the employment of the complainant.
23. Section 212(1) defines ‘substantial disadvantage’ as one that is more than
minor or trivial.
24. Under Schedule 8, paragraph 20(1), an employer has a defence to a claim
for breach of the statutory duty if it does not know and could not reasonably
be expected to know that the disabled person is disabled and is likely to be
placed at a substantial disadvantage by the PCP, physical feature or, as the
case may be, lack of auxiliary aid. A tribunal can find that the employer had
constructive (as opposed to actual) knowledge both of the disability and of
the likelihood that the disabled employee would be placed at a
disadvantage. In this case, the question is what objectively the employer
could reasonably have known following reasonable enquiry.
25. In Environment Agency v Rowan [2008] IRLR 20 (