Mrs R Hutchinson v Avery Homes Hanford Ltd: 1300936/2021
EMPLOYMENT TRIBUNALS
Case No 1300936/2021
Between
Mrs R HutchinsonClaimantAvery Homes Hanford LtdRespondent
Before
Employment Judge KenwardMr. Frew (instructed by Counsel) for claimantMr. Hulse (instructed by Counsel) for respondentDate 4 January 2021
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. This means that the respondent unfairly dismissed the claimant.[2]The respondent is ordered to pay to the claimant compensation for unfair dismissal in the sum of £1,204.33 comprising of:(1) a basic award in the sum of £227.59 (on the basis that the conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the sum calculated of £1,517.30 by 85%;)(2) a compensatory award in the sum of £976.74 consisting of a prescribed element (loss of earnings in respect of the period from 12th February 2021 to 28th January 2022) of £802.09 and a non-prescribed element (future loss of earnings and loss of statutory rights) of £174.65, with these sums having been reduced from the sums calculated of £5,166.50 (for the prescribed element) and £1,125.04 (for the non-prescribed element) on the basis of being: (a) subject to a reduction of 85% under the principles in Polkey v A E Dayton Services Limited [1988] ICR 142; (b) subject to an increase of 15% by reason of the respondent’s failure to comply with the ACAS Code of Practice on disciplinary procedures; and (c) subject to a further reduction of 10% as being just and equitable in respect of the dismissal having been caused or contributed to by any action of the claimant.[3]The claimant’s complaint of breach of contract is not well-founded and is dismissed. Case Number: 1300936/2021 - 2 - Signed electronically by me Employment Judge Kenward Dated 28th January 2022 Case Number: 1305815/2020 & 1310216/2020 1 EMPLOYMENT TRIBUNALS Claimant Respondents Mrs. R. Davies v Herefordshire Council(1) Riverside Primary School(2) Heard at: Birmingham On: 20, 21, 22, 23 September 2021 In chambers :24 September2021 Before: Employment Judge Wedderspoon Members : Mr. S. Woodhall Mrs. C. Davis Representation: Claimant: Mr. Frew, Counsel Respondents: Mr. Hulse, Counsel[1]The unanimous judgment of the Tribunal is as follows :- (i)the claim of direct disability discrimination is well-founded and succeeds; (ii)the claim of discrimination arising from disability is well-founded and succeeds; (iii)the claim for a failure to make a reasonable adjustment is well-founded and succeeds; (iv)the claim for harassment related to disability is well-founded and succeeds; (v)the claim for victimisation is well-founded and succeeds; (vi)the claim of constructive unfair dismissal is well-founded and succeeds. A hearing will take place to determine remedy.
REASONS
[1]By claim forms dated 18 May 2020 and 2 November 2020 the claimant brought complaints of unfair dismissal and disability discrimination against the respondents. ACAS conciliation commenced on 19 March 2020 and ended on 19 April 2020.[2]The claimant has brought the following claims :- (a)Unfair constructive dismissal; (b)Direct disability discrimination contrary to section 13 of the Equality Act 2010 (“EqA”); (c)Discrimination arising from disability contrary to section 15 of the EqA; Case Number: 1305815/2020 & 1310216/2020 2 (d)Failure to make reasonable adjustments contrary to sections 20 and 21 of the Equality Act 2010; (e)Harassment related to disability contrary to section 26 of the EqA; (f)Victimisation contrary to section 27 of the EqA.[3]The agreed list of issues to be determined by the Tribunal are as follows :- Disability Discrimination Claims (1)The Respondents accept that the Claimant was at the material time of the claim a disabled person as defined in section 6 of the Equality Act 2010. The condition relied upon is Grade 3 Anaplastic Astrocytoma (a malignant brain tumour condition). (2)Pursuant to para 20(1) of Schedule 8 to the EA 2010, did the Respondents know or ought to have known that the Claimant was disabled? The Respondents accept that they had knowledge of the Claimant’s disability at all material times. Direct discrimination (disability) contrary to section 13 EA 2010 (3)Did any of the following acts occur: (i)the Claimant was not given the opportunity to work in Early Years from September 2019? (4)If so, did the Respondents treat the Claimant less favourably by enacting each act above than they treat or would treat others (the Claimant relies on a hypothetical comparator and an actual comparator namely Claire Sargent to whom the role was given)? (5)If so, was the less favourable treatment because of the protected characteristic of disability? Discrimination arising from disability (section 15 EA 2010) (6)Did the following arise from the Claimant’s disability:a. The Claimant’s inability to properly cope with Key Stage 1 including her memory loss and coping strategies? (7)Did the following acts occur?b. The Claimant has been refused the reasonable adjustment of working in Early Years;c. The Claimant was not provided with induction training or training for the Key Stage 1 role;d. The Claimant has been threatened with the potential of dismissal through her capability;e. The Claimant has had it suggested to her that she take ill-health retirement;f. The Claimant has been the subject of a campaign to identify negative capability issues about her; Case Number: 1305815/2020 & 1310216/2020 3g. On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's GP had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work;h. Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency;i. Miss Shearer had contacted the Occupational Health Expert again without the knowledge of the Claimant. (8)If so, was this unfavourable treatment? (9)If so, was this unfavourable treatment because of something arising in consequence of the Claimant's disability? (10)If so, was the treatment was a proportionate means of achieving a legitimate aim? i. What is the aim the Respondent relies on? ii. Is it legitimate? iii. Was the treatment a proportionate means of achieving this aim? Failure to make reasonable adjustments (11)Did the First Respondent have and apply the following PCPs: (i)The practice of the Claimant having to work in Key Stage 1. (ii)The practice of deploying part-time staff in a way which would cover the full- time teachers' planning, preparation and assessment (PPA) time. (12)If so, did any or all of the PCPs put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, namely, in relation to each PCP: (i)The Claimant was unable to properly cope with Key Stage 1. The Claimant’s role in Key Stage 1 demanded that she teach across four classes which demanded her to have knowledge of 120 pupil names, histories and behaviours. The Claimant did not receive an induction to the Key Stage 1 curriculum and each class had a different routine with planning and materials stored in numerous software formats and behaviour management strategies. (ii)Everything was new, unfamiliar and the Claimant became vulnerable where she was forced to take a big step change without any support (iii)The Claimant was increasingly disadvantaged by the role that she had to complete and increasingly upset. Case Number: 1305815/2020 & 1310216/2020 4 (iv)The Claimant was affected by the time pressures of teaching four focusses a day in Key Stage 1 and further she did not feel that Guided Reading was successful for her. (v)The Claimant grew increasingly anxious. (13)If so, did the First Respondent know or could it reasonably be expected to know that the Claimant was likely to be placed at any such disadvantage? (14)If so, were the adjustments below reasonable adjustments at the relevant time? (i)Allowing the Claimant to work within Early Years. Harassment related to disability (section 26 EA 2010) (15)Did the following conduct occur? (i)The Claimant has been refused the reasonable adjustment of working in Early Years; (ii)The Claimant was not provided with induction training or training for the Key Stage 1 role; (iii)The Claimant has been threatened with the potential of dismissal through her capability; (iv)The Claimant has had it suggested to her that she take ill-health retirement; (v)The Claimant has been the subject of a campaign to identify negative capability issues about her; (vi)On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's GP had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work; (vii)Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency; (viii)Miss Shearer had contacted the Occupational Health Expert again without the knowledge of the Claimant. (16)If so, were each or any of the acts listed above unwanted? (17)If so, did each conduct relate to disability? (18)If so, did each conduct have the purpose (taking into account the Claimant’s perception, the circumstances of the case and whether it is reasonable for the conduct to have such an effect) the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? Victimisation (19)Did any of the following acts occur: Case Number: 1305815/2020 & 1310216/2020 5 (i)The Claimant raised concerns about her disability and issues with work when seeking support with Miss Shearer on 29 October 2019? (20)Was this act a protected act? (21)Did the Claimant suffer the following detriments? (i)The Claimant has been refused the reasonable adjustment of working in Early Years; (ii)The Claimant has been threatened with the potential of dismissal through her capability; (iii)The Claimant has had it suggested to her that she take ill-health retirement; (iv)The Claimant has been the subject of a campaign to identify negative capability issues about her; (v)On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's GP had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work; (vi)Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency; (vii)Miss Shearer had contacted the Occupational Health Expert again without the knowledge of the Claimant. (22)Has the Claimant been subjected to these detriments because she did a protected act? Constructive unfair dismissal (23)The Claimant relies upon the implied term of trust and confidence and includes the implied term not to be discriminated against. (a)Was the Respondent in fundamental breach of the terms and conditions of the Claimant's employment in subjecting the Claimant to disability discrimination as set out within Pages 89 – 93 of the Bundle? (b)What was the most recent act or omission on the part of the Respondent that the Claimant states caused or triggered her resignation? (c)The Claimant relies upon the contents of her letter of resignation dated 28 July 2020 which includes the following: i. I was subject to a variety of conduct which I consider to be discriminatory and in breach of contract. ii. Whilst you have now postponed the investigation meeting, this does not diminish the effect of the pressure that was brought to bear on me in the last 18 months, which merely compounded the previous contractual breaches. Case Number: 1305815/2020 & 1310216/2020 6 iii. Emma Shearer’s pressuring of me to return to school, when only a few months ago she was pushing me to take early retirement, mean that I would not be returning to an unbiased atmosphere. iv. Recent events including comments and inaccuracies in the investigation report which you were trying to get me to answer with four days have tipped me over the edge and I feel that I cannot therefore return to employment at Riverside. (24)Did the reasons provided within the resignation letter identify acts or omissions that were part of a course of conduct comprising several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (25)Did the Claimant resign in response, or partly in response, to that breach? (26)Did the Claimant suffer a discriminatory dismissal pursuant to Section 39(2)(c) of the Equality Act 2010?
The hearing
[4]The Tribunal was provided with an agreed bundle of 500 pages, agreed chronology and cast list. The claimant relied upon her own evidence and the evidence of Diane Brown, the claimant’s mother and Elizabeth Mason, a former nursery teacher at the second respondent’s school. The respondent relied upon the evidence of Emma Shearer, Head teacher of the second respondent’s school, Anna Green, External HR advisor and Julie Bridgewater, External Senior HR advisor.[5]At the commencement of the hearing the Tribunal put in place the requested reasonable adjustments to assist with the claimant’s fatigue and memory loss/concentration namely regular breaks, a conference room on the same floor at the hearing room and the availability of notebook and pen on the witness table.[6]Due to the COVID pandemic, the number of persons in the room (in addition to the Tribunal) was limited to 5 persons. A screen was set up on Day 2 for other attendees to participate in the hearing.[7]The case was timetabled. Day 1 for reading, Day 2 for the claimant’s evidence, Day 3 for the Respondent’s evidence and Day 4 for oral submissions (half an hour each) to supplement written submissions. The Tribunal reserved its judgment and deliberated on days 4 and 5.[8]At the request of the Tribunal Mr. Frew of Counsel produced on day 2 an up- to-date agreed list of issues.[9]On day three when both parties closed their case, Mr. Hulse on behalf of the respondent applied to amend the respondent’s case of defending the constructive unfair dismissal to add in an issue (not presently pleaded in the ET3) of delay/waiver of the repudiatory breach of contract. His application was based on the overriding objective and that the Tribunal would need to consider all relevant matters of constructive dismissal and do the right thing. Case Number: 1305815/2020 & 1310216/2020 7 Mr. Frew on behalf of the respondent objected on the basis that the application came in late and that the claimant was significantly prejudiced as she had not been cross examined about this issue; the claimant was not alive to this issue being in dispute and there was no merit in the application since the claimant was extremely ill from January 2020.[10]The Tribunal may exercise its discretion to amend a party’s case, as late in proceedings as the submissions stage. Discretion is exercised in accordance with the overriding objective, Presidential Practice Direction on case management and in accordance with the principles set out in Selkent and in Vaughan v Modality Partnership (UKEAT/0147/20); the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application.[11]The Tribunal determined that the balance of injustice and hardship of allowing the application to the claimant outweighed the injustice and hardship for refusing the respondent’s amendment application. The respondent made the application at a late stage; the unfair dismissal claim had been issued on 2 November 2020; trial preparation including exchange of witness statements had taken some time before the hearing with no notice given to the claimant that delay/waiver was a feature of the respondent’s case; the claimant had not prepared her witness statement to deal with these issues and had not been cross examined during the hearing about delay. The Tribunal could not consider the issue of delay in the absence of any evidence on the point. The prejudice was too great to the claimant and the Tribunal refused the application. The Law Constructive unfair dismissal
The Law
[12]Section 95 (1) (c) of the Employment Rights Act 1996 (“ERA”) relevantly provides “For the purposes of this Part an employee is dismissed by his employer if (and only if)-the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.[13]An employee seeking to establish that she has been constructively dismissed must prove :- (1)that the employer fundamentally breached the contract of employment; and (2)that she resigned in response to the breach (see Western Excavating (ECC) Limited v Sharp (1978) IRLR 27).[14]It is an implied term of the contract of employment that the employer will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee; Malik v BCCI plc (1997) IRLR 462; Baldwin v Brighton & Hove CC (2007) IRLR 232.[15]The serious nature of the conduct required before a repudiatory breach of contract can exist has been addressed by the EAT in Pearce v Receptek (2013) All ER (D) 364 at paragraphs 12/13 Case Number: 1305815/2020 & 1310216/2020 8 “It has always to be borne in mind that such a breach (of the implied term) is necessarily repudiatory and it ought to be borne in mind that for conduct to be repudiatory, it has to be truly serious”. The modern test in respect of constructive dismissal or repudiatory conduct is that stated by the Court of Appeal not in an employment context, in the case of Eminence Property Developments Limited v Heaney (2010) EWCA Civ 1168 “..the legal test is simply stated..it is whether looking at all the circumstances objectively that is from the perspective of a reasonable person in a position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract’. That case has been followed since in Cooper v Oates (2010) EWCA Civ 1346 but is not just a test of commercial application. In the case of Tullet Prebon Plc v BGC Brokers LP (2011) EWCA Civ 131 Aikens LJ took the same approach and adopted the expression ‘Abandon and altogether refuse to perform the contract. In evaluating whether the implied term of trust and confidence has been broken, a court will wish to have regard to the fact that since it is repudiatory it must in essence be such a breach as to indicate an intention to abandon and altogether refuse to perform the contract’.[16]A fundamental breach of contract cannot be cured but if an employer takes corrective action the employer may prevent conduct from developing into a breach of the implied term of trust and confidence; Assamoi v Spirit Pub Co Limited (2012) All ER (D) 17.[17]Where a fundamental breach of contract has played a part in the decision to resign the claim of constructive dismissal will not be defeated merely because the employee also had other reasons for resigning; Wright v North Ayrshire Council (2014) IRLR 4 (paragraph 16).[18]Where a Claimant relies upon a final straw to resign the final act may not be blameworthy or unreasonable but it must contribute something to the breach even if relatively insignificant Omilaju v Waltham Forest London Borough Council (2005) EWCA Civ 1493. Further, there cannot be a series of last straws; once the contract is affirmed earlier repudiatory breaches cannot be revived by a subsequent “last straw” and following affirmation it takes a subsequent repudiatory breach to entitle the employee to resign. Direct disability discrimination[19]Pursuant to section 13 of the Equality Act 2010 the Tribunal should concentrate primarily why the Claimant was treated as she was. Was it because of the protected characteristic? That will call for an examination of all the facts of the case. Or was it for some other reason? If it was the latter, the claim fails; see paragraph 11 of Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 1.[20]Less favourable treatment is because of the protected characteristic if either is inherently discriminatory or if the characteristic significantly influenced the mental processes of the decision-maker. It does not have to be the sole or principal reason. Nor does it have to have been consciously in the decision-maker’s mind; Nagarajan v London Regional Transport (1999) IRLR 572. Case Number: 1305815/2020 & 1310216/2020 9 Burden of proof[21]Section 136 (2) and (3) of the Equality Act 2010 states “(2)..If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the Court must hold that the contravention occurred; (3)But subsection (2) does not apply if A shows that A did not contravene the provision.”[22]Section 136 (2) of the Equality Act 2010 envisages a two-stage approach to the burden of proof in discrimination claims. The Claimant has the initial burden of proving a prima facie case of discrimination and if this hurdle has cleared the burden shifts to the Respondent to provide a non-discriminatory explanation (Ayodele v Citylink Ltd and anor 2018 ICR 748).[23]If the Claimant can prove a ‘prima facie’ case of discrimination, then the burden shifts to the Respondent to show that such discrimination did not in fact occur. In the recent Supreme Court case of Royal Mail Group Limited v Efobi (2019) EWCA Civ 18 it was confirmed that the burden does not shift to the employer to explain the reasons for its treatment of the claimant unless the claimant is able to prove on the balance of probabilities those matters which he wishes the tribunal to find as facts from which in the absence of any other explanation an unlawful act of discrimination can be inferred.[24]To establish a prima facie case, the Claimant has to show that she was treated less favourably than others were or would have been treated, and in addition to this also needs to show ‘something more’ which indicates that discrimination may have occurred: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. (Madarassy v Nomura International plc [2007] ICR 867 at [56] per Mummery LJ) Harassment[25]Section 26 (1)(a) of the Equality Act 2010 defines harassment by reference to conduct that is related to a relevant protected characteristic; this is a question of fact. In deciding whether conduct had the proscribed effect, tribunals should consider the context; (Bakkall v Greater Manchester Buses (South) Limited (t/as Stage Coach Manchester 2018 ICR 1481) including whether or not the perpetrator intended to cause offence.[26]Dignity is not necessarily violated by things said or done which are trivial or transitory particularly if it should have been clear that any offence was unintended.[27]While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or Case Number: 1305815/2020 & 1310216/2020 10 indeed comments or conduct related to other protected characteristics) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase; Richmond Pharmacology Limited v Dhaliwali (2009) IRLR 336. Failure to make reasonable adjustments[28]The duty to make reasonable adjustments comprises of a requirement where a PCP of the employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled to take such steps as it is reasonable to take to avoid the disadvantage. A disadvantage is substantial if it is more than minor or trivial; see section 212 (1) of the Equality Act 2010.[29]Paragraph 6.28 of the Equality and Human Rights Commission’s Code of Practice on Employment lists some of the factors which might be taken into account when deciding what it is a reasonable step for an employer to have to take including (i)whether taking any particular step would be effective in preventing the substantial disadvantage; (ii)the practicability of the step; (iii)the financial and other costs of making the adjustment and the extent of any disruption caused; (iv)the extent of the employer’s financial and other resources; (v)the availability to the employer of financial or other assistance to help make an adjustment (such as advice through access to work); and (vi)the type and size of the employer.[30]Before a Respondent is required to disprove a failure to make reasonable adjustments there must be sufficient facts from which the Tribunal could conclude not just that there was a duty to make adjustments but also that the duty has been breached. By the time the case is heard before a Tribunal there must be some indication as to what adjustments it is alleged should have been made (Project Management Institute v Latif UKEAT 0028/07). Discrimination arising from disability. S.15 EqA[31]Section 15 of the Equality Act 2010 provides that “(1)A person(a) (A) discriminates against a disabled person(b) (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability and (b)A can not show that the treatment is a proportionate means of 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.”[32]Pnaiser v NHS England (2016) IRLR 170 says, “From these authorities the proper approach can be summarised as follows : Case Number: 1305815/2020 & 1310216/2020 11 (a)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. No question of comparison arises. (b)The tribunal must determine what caused the impugned treatment or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a s.15 case. 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 so amount to an effective reason for or cause of it. (c)Motives are irrelevant. The focus on this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant; see Nagarajan v London Regional Transport. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises.. (d)The tribunal must determine whether the reason/cause (or if more than one) a reason or cause is “something arising in consequence of B’s disability”. That expression “arising in consequence of” could describe a range of causal links.. (f)This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (h)Moreover the statutory language of s.15 (2) makes clear ..that the knowledge required is of the disability only and does not extend to a requirement of knowledge that the something leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover the effect of s.15 would be substantially restricted on Miss. Jeram’s construction and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15.[33]Mr. Justice Langstaff held in the case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe (UKEAT/0397/14) “The current statute requires two steps. There are two links in the chain both of which are causal though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something” and therefore has to identify the something and second upon the fact that “something’ must be “something arising in consequence of B’s disability’ which constitutes a second causative (consequential) link. These are two separate stages”.[34]As with direct discrimination, the focus must be on the conscious or subconscious motivation of the person or persons who decided on the unfavourable treatment IPC Media Limited v Millar (2013) IRLR 707.[35]These principles were affirmed in the case of Pnaiser v NHS England (2016) IRLR 174. Case Number: 1305815/2020 & 1310216/2020 12[36]When considering the justification defence, the Tribunal must weigh the discriminatory effect of the treatment against the reasonable needs of the business Hardy and Hansons Plc v Lax (2005) ICR 1565 applying Allonby v Accrington & Rossendale College (2001) ICR 1189.[37]Mr. Justice Singh stated in Hensman v Ministry of Defence UKEAT/0067/14 when assessing proportionality while a Tribunal must reach its own judgment that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. Victimisation[38]Pursuant to section 27 of the Equality Act 2010, a person victimises another if they are subjected to a detriment because they do a protected act. The EHRC Code states that a protected act need not be the only reason for the detrimental treatment; it is enough if it is one of the reasons.
Facts
[39]From 1 September 2011, the claimant was employed by the first respondent as a full-time teacher at Riverside Primary School. Her full-time role was teaching in the reception class of early years which covers nursery (ages 3 to 4 years) and reception (4 to 5). It has its own curriculum with seven key stages of learning for children within the early years’ classes. The claimant took maternity leave from 6 June 2016 until 29 May 2017. From 29 May 2017 the claimant returned on a 0.5 full time equivalent contract which entailed 37.5 hours per two week period and she continued to work in Early Years specifically reception, job sharing with the early years head and one of the assistant heads of school, Liz Mason.[40]During December 2017 to January 2018 the claimant was diagnosed with grade 3 anaplastic astrocytroma (a malignant tumour) at the age of 30 years. The condition is incurable and results in life expectancy of an average of 8 years. There is no dispute that the claimant is a disabled person for the purposes of section 6 of the Equality Act 2010 and that the respondents had knowledge of this disability since December 2017.[41]From 2 January 2018 the claimant was absent from work on sick leave. The claimant underwent surgery and chemotherapy.[42]In October 2018, advice was sought from occupational health by the respondent as to the claimant’s fitness to return to work. Dr. Sadhra’s occupational health advice dated 29 October 2018 (p.230-1) stated that the claimant was fit to return to work on a phased return but it should be postponed until the results of her neurology investigations had been received. Dr. Sadhra recommended a further occupational health review in 6 weeks (page 231). Dr Sadhra stated “..She reports that she is mostly symptom free i.e. she no longer suffers from headaches and she feels that her vision is unaffected. The only symptom she does state that an affect her on the odd occasion is using an Case Number: 1305815/2020 & 1310216/2020 13 incorrect noun. She reports that she has not noticed any problems with either her short or long-term memory. She would like to go back to work. She reports that she is able to do all activities of daily living independently. She is already aware of the DVLA guidance surrounding her diagnosis. …I do believe we can aim for a phased return to work in January 2019. I believe that Mrs. Davies currently displays no obvious symptoms or signs that would affect her ability to perform as a teacher. It is difficult to estimate the time and to what extent her recovery from her health problem will be, however it will be made more clear over the weeks and months to come. We have discussed reasonable adjustments and I can not suggest anything other than a phased return where her hours can be increased incrementally over a period of time with the aim being to return back to her full contracted hours. There is a chance her health problem may recur but at this stage it is uncertain whether it will..”[43]A further assessment by Dr. Sadhra took place on 18 December 2018 (page 233-235). The report noted that the claimant has not developed any new symptoms and remains mostly symptom-free. She reported she did find word finding difficult but he did not notice any signs of this in today’s consultation. She helped out on a school trip recently and felt exhausted. The claimant did wish to return to work. He stated that the claimant was fit for work. The claimant reported her G.P. identified no obvious abnormalities relating to her memory. He recommended re-introducing the claimant on a phased return approach and recommended a maximum of 9 hours per week initially (spread across two half days or one day initially). If the claimant was able to tolerate this after 1 to 2 weeks, her hours could be increased to 18 hours per week. He advised the claimant not to work two consecutive full days. If the claimant was able to tolerate this after a period of 2 weeks she can be increased back up to her full time working hours and working consecutive days. If the claimant was not tolerating her hours on a particular regimen, then he recommended reducing her hours down to a previous regimen that she could cope with. In respect of covering nursery classes as part of a new change to her job role, as this was an unfamiliar setting for the claimant, he advised temporarily against this because this may have an effect/contribute to her fatigue symptoms and it would be difficult to determine whether any worsening is caused by the increase in hours or this aspect of her job role. He recommended a further occupational health review in two to three months’ time (p.233-4).[44]On 8 January 2019 the claimant returned to work on a phased return and attended safeguarding training. The children returned to school on 9 January 2019. On 14 January 2019 there was no formal return to work meeting with Emma Shearer, the Head teacher but a brief chat. Ms. Shearer informed the claimant what she would be doing; working with booster groups namely underachieving children in reception class and the claimant was asked to give them extra tuition. This was not a return to the claimant’s previous role. Pursuant to the applicable Managing Attendance Policy and Procedure paragraph 3.2 (page 152), “ a return to work, even after part or single days, the MA1 self-certification/ declaration form must be completed and signed by the employee and countersigned and retained by the school.” Ms. Shearer’s explanation to the Tribunal as to why this mandatory step was Case Number: 1305815/2020 & 1310216/2020 14 not taken was because the claimant was returning on a “phased return”. The Tribunal notes that there is no distinction made within the policy as to whether the employee returns on a phased return as to the lack of need to complete a return to work form. The purpose of the return to work interview is set out in the policy as including “update the employee on any workplace or workload issues during their absence; explore ways to resolve problems which might improve healthy attendance by taking medical or such other advice as required including compliance..and monitoring of work/life balance. The headteacher or nominated representative should explain the range of appropriate occupational health and counselling services available. Check the employee is fit to return to work and whether any temporary adjustments or support are necessary.” Ms. Shearer informed the Tribunal that there were no changes to the workplace and she had the occupational health advice. The Tribunal finds that Ms. Shearer failed to follow the procedure and failed to recognise the importance of a meeting at this stage with the claimant as an employee returning to the workplace after a period of absence; such a meeting forms an important part of a returning employee’s integration back into the workplace and can form a useful consultation with the employee to identify any concerns or obtain reassurance from the employer. The claimant perceived the lack of a meeting as a lack of pastoral care from the headteacher. The Tribunal finds that this was in part because of Ms. Shearer’s lack of understanding about disability in the workplace. The headteacher was unaware of policies, nor had she received any equality Act/diversity training. Her evidence to the Tribunal is that she had no training about disability but instead she took and relied upon H.R. advice at the material time. The Tribunal found that Mrs. Shearer did not seek H.R. advice at this stage as corroborated by the evidence of the witnesses from H.R. and instead, Mrs. Shearer tended to believe she knew best.[45]On 14 January 2019 the claimant met with Mrs. Shearer (the head teacher) to discuss working with the booster groups and incrementally increasing her hours. Following this discussion, Emma Shearer sent an email to staff informing them about the claimant’s preliminary two week timetable (page 236) “we have started to structure the timetable for Rachael. This is what we have done so far there may be tweaks along the way. I will speak to Sarah this week.” The claimant complains that there was no forward plan discussed or agreed between the claimant and the respondents at this stage. However, the Tribunal finds that this was an unrealistic expectation of the claimant for a plan to be mapped out at that stage because of Dr. Sadhra’s view was that incremental changes should be made and in fact the Claimant raised no concern about that at this stage. During the week commencing 14 January 2019 the claimant worked 1.5 days and in the week commencing 21 January 2019 the claimant worked for 2.5 days.[46]By 30 January 2019 the claimant was covering a class for Sarah Gough who was on a 0.5 contract. There was no review by Mrs. Shearer at this stage with the claimant about the claimant’s working hours and the claimant was moved onto her regular hours. Laura Whitty (the early years lead and coordinator) gave the claimant a schedule of her working pattern between 25 February and the Easter holiday on 9 March and a time-table for the summer term (pages 238-9 and 260-261). Case Number: 1305815/2020 & 1310216/2020 15[47]The claimant’s timetable was changed at short notice so that the claimant could be asked to cover a particular teacher if there was an absence or a problem. This caused the claimant some anxiety but she did not share this with her employer. The Tribunal accepts the claimant’s explanation that she was fearful of the reaction of the headteacher if she did so. On 11 March the claimant had to cover Liz Mason and on 18 March she was asked to cover the absence of Gemma Gammon in nursery until 30 April. The claimant received the changes to her schedule by text message (page 245). The claimant did not return to her pre-sickness absence role.[48]On 5.3.2019 p.242 Dr. Sadhra conducted an occupational review. He noted that since the last review the claimant reported no recurrence of headaches, and she remains mostly symptom-free. He stated “She reports that she is scheduled to do three full-days (back to her normal working hours) and reports experiencing no symptoms of fatigue despite the increase in her hours. She also reports that she does not feel over-tired when she returns home nor does she feel the need for a lot of rest over the weekend in order to recover from does the working week. She has been under further investigations with her Neurosurgical team and she reports they are happy with the progress she has been making. She mentions that the intermittent difficulty with word finding remains, however once again during this consultation this was not apparent. It is my opinion that Mrs. Davies is fit for work and she can be increased back up to her full-time working hours and working consecutive days, on the basis there is no deterioration of her symptoms. I have not arranged a further occupational health review, however, should there be a change in her symptoms I have advised that her G.P. is the first point of call and should an occupational health review feel warranted we would be happy to review via a re-referral”.[49]The Tribunal finds this was a positive review of the claimant’s return to work. However, the report does not comment upon the claimant undertaking any unfamiliar work.[50]On or about 9 April 2019 the claimant had a discussion with Emma Shearer. The claimant wanted to return to classroom teaching. Emma Shearer told the claimant that she wanted to keep full time teachers in the classroom and have part time teachers (such as the claimant) covering preparation, planning and assessment (PPA). Emma Shearer informed the claimant that she would be covering PPA and that effectively the claimant was losing her classroom. The claimant was very distressed by this and felt since her return she was being singled out for different treatment; “It felt personal”. Ms. Shearer suggested that the claimant should reduce her contracted hours from 0.5 full time equivalent to 0.3 as this would enable her to remain in early years. Mrs. Shearer’s evidence was that the offer was for 0.3 in early years and 0.2 in key stage 1 but the Tribunal does not accept this evidence and prefers the claimant’s version of events. The claimant’s version is corroborated by her email dated 9 April 2019 when the claimant asserts, she wishes to remain at 0.5 hours and Ms. Shearer does not correct the claimant Case Number: 1305815/2020 & 1310216/2020 16 that she meant 0.3 hours only in early years. The claimant’s concern about a reduction to 0.3 hours was that she could be moved from her actual job in reception, and she would not be able to remain in Early Years. Although the claimant’s evidence is that this was contrary to Dr. Sadhra’s recommendation namely to keep the claimant in a familiar setting; the Tribunal finds that this is not entirely clear. By 5 March 2019 Dr. Sadhra’s opinion was that the claimant could be increased back to her full-time working hours and working on consecutive days; there does not appear to be any direct consideration by Dr. Sadhra at the review to comment upon an unfamiliar work setting for the claimant or what work he envisaged the claimant would do. The Tribunal was not taken to any referral from the headteacher to Dr. Sadhra. His opinion was not clarified by the respondent but rather Ms. Shearer took it that as Dr. Sadhra had previously said it was a temporary arrangement (not to do unfamiliar work) the claimant could now do it . The headteacher did not clarify with Dr. Sadhra specifically whether the claimant could conduct PPA.[51]By email dated 9 April 2019 (p.253) the claimant stated that she “would like her hours to remain at 0.5” and that she was keen to return to the responsibility and challenge of being a classroom teacher as soon as possible. She said occupational health supported this. After Easter the claimant’s work pattern would remain the same but she sought clarification about the actual working days Ms. Shearer would want the claimant to come in. The claimant stated “If you could let me know via email or written word as this would be helpful to have as an aide memoir/reassurance, that I can refer to. I feel “written” information would be the only further help I will need..”.[52]By email dated 11 April 2019 (page 252) Emma Shearer responded to confirming that the claimant’s proportion would remain at 0.5. She also stated “we are looking to place full time teachers in the classroom and part time teachers covering PPA and management release where possible. This supports consistency and continuity for the children. From September I can confirm that you will be covering PPA. The days will be between Tuesday and Thursday and I will confirm your working pattern before the May half term. I have tried to give part time staff as much notice as possible as I know that childcare arrangements can be difficult to change. I have referred back to the Health@work document dated 19 December 2018 as you mentioned in your email. The report recognised that working in an unfamiliar setting would, be advised against temporarily if we could accommodate it. The report on 5 March 2019 stated that you are now fit to resume your contracted hours”. The Tribunal finds that this was not entirely correct. Although Dr. Sandhra had advised that the claimant could return to normal hours there was no further comment about an unfamiliar area of teaching. However, the claimant appeared to accept the headteacher’s analysis and responded to this email stating “I know fully understand your rationale which is a comfort as it feels less personal.”[53]The headteacher undertook a return-to-work interview on or about 1 May 2019 (page 258). The headteacher recorded that “Rachael is now back to Case Number: 1305815/2020 & 1310216/2020 17 her full working hours. She is enjoying being back. Rachael finds it difficult to retain verbal information at times and requires things to be written down to support this. Rachael feels supported and happy to ask for further support if needed.” It was noted that a further occupational health appointment would be arranged for the summer term. However, no occupational health appointment was made for the summer term. The headteacher’s evidence was that there was no reason to have a further occupational health appointment because the claimant’s return to work seemed to be going smoothly. The Tribunal rejects this evidence. The record of diary notes of issues with the claimant which seems to start from 30 April 2019 indicates in July 2019 the claimant could not remember a conversation she had just had (page 284); on the same date the claimant forgot where she was. On 16 July 2019 the claimant was reminded of what she was doing several times but clarification had to be given to the claimant two times in the morning. The explanation of the headteacher faced with this material at the Tribunal was that she was unaware of these issues and/or they were nothing new. The Tribunal does not accept her evidence. As found by the Tribunal, the Headteacher had requested colleagues to document any issues with the claimant and her progress or lack of it and the tribunal finds that the headteacher was likely on the balance of probabilities to be aware of these issues at the material time and should have sought further advice from occupational health.[54]Further, due to staff absences the claimant lost her PPA time but it was no replaced. Her teaching assistance was removed due to staff absences and the assistant was not replaced. The claimant felt alone and ignored.[55]Liz Mason who the claimant had job shared in the nursery prior to her long absence from work was due to retire in the new year. Liz Mason worked part-time three days per week. Her retirement meant a vacancy for an early year’s teacher. Liz Mason had also recommended the claimant for the post before Easter in 2019 informing Ms. Shearer that support workers had said how well the claimant worked in the nursery and she thought the claimant would be a good teacher. The tribunal finds that Ms. Shearer stated in response “its always positive to hear positive things about staff.” Despite this endorsement from a senior teaching professional who had experienced the claimant’s work, Ms. Shearer did not offer the job to the claimant or even enquire whether she would be interested in it, instead she offered the job to Claire Sergeant.[56]On 17 May Claire Sargeant, a part time colleague, text (page 262) the claimant “Just wanted to let you know that Emma was asking how I feel about doing nursery. She said she hasn’t made any definite decisions. I know you were keen. I don’t want you to think I’ve gone behind your back.” The claimant had not been asked by the headteacher if she would be interested in this role. The claimant responded “Oh really How do u feel about it? Not ur fault but bloody annoying as I’ve been saying I would like to do is..I’m just sad that Emma keeps saying to me she doesn’t want job shares in the classroom! It would clearly be ok for other people though..”. Claire Sergeant was on a 0.6 contract. The claimant was more experienced Case Number: 1305815/2020 & 1310216/2020 18 than Claire Sergeant; the claimant had 8 to 9 years’ experience in early years. Claire Sargent did not have a disability. Mrs. Shearer’s explanation to the Tribunal for this decision was for operational reasons and financial reasons she gave the job to Claire Sargent. The vacant role was for a 0.6 contract but Mrs. Shearer did not ask the claimant if she would be willing to take on the extra 0.1 hour increase. Mrs. Shearer’s explanation to the Tribunal was that it would be an extra cost to the school to do so and Clare Sargeant was on a 0.6 contract. The Tribunal reject this evidence because the post already carried with it a budget of 0.6. In her answers to Hopple the headteacher stated that to give the claimant that role would mean she would have to increase the claimant’s hours; the school was overstaffed at this time; she wished to re-organise staff without increasing the headcount or costs associated with staffing. She also stated “RD did not express interest in this role to me at any time.” The Tribunal finds she did not ask the claimant at any time despite the claimant’s experience and expertise in the role and recommendation by Liz Mason for the claimant to do the role; it was inexplicable to the Tribunal that the experienced claimant was not asked. Further the head teacher stated “I do talk with staff about their aspirations and will always endeavour to make that happen within the constraints of the budget. I had previously already agreed a reduction in hours on her return..” The headteacher did not discuss the option of the claimant increasing her hours by 0.1 at any time. The explanation from the headteacher for her decision is also inconsistent with what she actually did. The nursery vacancy was job shared with Gemma Gammon who increased her hours from 0.4 hours to 0.5 hours. There was no explanation as to why Gemma Gammon was permitted to increase her hours by 0.1 but this option was not made available or offered to the claimant. The head teacher also said that the claimant wanted to remain on 0.5 FTE hours but the head teacher has taken this from the context of the claimant wishing to maintain her hours when the headteacher offered to reduce them to 0.3; she was not consulted about the possibility of increasing by 0.1. The headteachers explanations for her rationale are unpersuasive. Furthermore, the headteacher from her email dated 10 April 2019 had told the claimant she wanted full time teachers in the classroom yet Gemma Gammon and Miss. Sergeant who were part time employees were permitted to be teachers. From the evidence, neither Gemma Gammon nor Claire Sergeant were disabled but the claimant was. This arrangement meant that Claire Sargent shared teaching time and PPA time with Gemma Gammon as the class now had 1.1 full time equivalent. The Tribunal finds that the headteacher did not offer this role to the claimant because she was disabled.[57]From September 2019 the claimant was moved from nursery to Key stage 1 and 2 teaching. This move was undertaken in the absence of any updated occupational health report. The claimant had not undertaken this work for a period of 9 years. The work involved the claimant teaching a different curriculum; The claimant found this difficult because it involved teaching 5 to 7 year olds and involved a different curriculum to the one she taught in 2012. She did not receive an induction, but the claimant did not raise that fact with the respondent at the time. The children involved numbered approximately 120 and the claimant was required to remember names of Case Number: 1305815/2020 & 1310216/2020 19 every child. The Tribunal finds that this is a difficult task and would have been very difficult for the claimant who had recent brain surgery and had complained about intermittent difficulty with word finding. The claimant did not express her concerns about this role but the Tribunal finds that the headteacher with the knowledge that the claimant was struggling to word find and the intelligence collected by colleagues on the headteacher’s instructions about the claimant’s performance should have realised that the claimant was likely to struggle in this role.[58]The claimant was invited to a performance review held on 16 October 2019. This should be a regular meeting to set targets as with all staff. The claimant raised her concerns about teaching key stage 1. Mrs. Shearer suggested a referral to Occupational Health. The claimant refused at that stage. However, the claimant reflected upon this; changed her mind and emailed the headteacher on 29 October 2019 (page 276) “After my performance management meeting I have some concerns and wish to clarify them. The different pressures between Key Stage 1 and Early Years is causing me some anxiety, which I may not have clearly communicated to you. At the close of our meeting you offered the opportunity to revisit Occupational Health which I declined. On reflection this was probably a little hasty. My feelings of nervousness and tension are not subsiding and therefore wish to accept your proposition.”[59]On 5 November 2019, the claimant sought an update from the headteacher about the occupational health appointment. She did not receive a response so she sent a chaser 12 November 2019 (p.281). Mrs. Shearer responded “Yes I have spoken to them. When are you free to go through it?” The claimant was not in school so did not respond to the headteacher’s invitation. Due to this a meeting was not arranged between the claimant and the headteacher until 4 December and Mrs. Shearer did not contact Occupational Health.[60]On 25 November 2019 the claimant chased the headteacher as to a response from occupational health and the headteacher offered a discussion that day to the claimant. The claimant and headteacher spoke on the telephone. During their discussion the claimant expressed she felt anxious and was finding PPA cover difficult. The headteacher offered the claimant counselling on 25 November 2019 but the claimant turned it down because she was getting similar support from her GP. Mrs. Shearer suggested cancelling the lesson observation of the claimant’s class which the claimant agreed would be beneficial.[61]At a meeting took place on 4 December 2019 between the claimant and the headteacher Mrs. Shearer. The claimant believed that she and the head would be discussing the occupational referral letter. The headteacher suggested to the claimant she could seek ill health retirement and stated that she would send her a link to obtain more information about it. This suggestion took the claimant by surprise. Mrs. Shearer thought that this was a way out. The claimant said “I’m only 32 and love my job”. The claimant was not interested in ill health retirement and made this clear but the Case Number: 1305815/2020 & 1310216/2020 20 headteacher sent the claimant by a link to the details about ill health retirement anyway (p.291). The Tribunal finds, contrary to the respondent’s case that the headteacher was simply providing options to the claimant, the headteacher considered that the claimant was simply not up to the job and should take ill health retirement. The Tribunal find corroborative evidence to this finding in the evidence of Liz Mason who told the Tribunal that she had been directly told by colleagues that the headteacher wanted the claimant out. The Tribunal also reject the suggestion that Liz Mason was an unreliable witness; the Tribunal found her evidence to be credible.[62]Mrs. Shearer completed an occupational health referral form (page 249-251). She stated in the document that there “concerns have been identified with Rachael’s ability to spell high frequency words accurately and consistently and concerns abut her phonic knowledge when teaching reading ans spelling e.g. Pard (park); feelinds (feelings) beech (beach) oo and oa confusion. There have been previously no concerns with this and it has only been identified as a problem following her illness. There have been concerns raised that Rachel has not carried out tasks on pre-planned work. Some of the work has been planned for Rachel to reduce her anxiety in the short term. There have been occasions where she has lost this planning or has been unable to deliver the plans due to being unable to find the plan of the computer. Rachael has become aware of her limitations and her frustration has presented as being quite angry and negative. Previously there have been no concerns with regards to this. Rachael is unhappy about working with children in years 1 and 2 (This has been timetable due to the operational needs of the school). We gave offered to reduce her contract to 0.3 to allow for her to work in nursery and reception in the short term. Rachael has declined this but continues to be unhappy and increasingly anxious. Her GP has suggested that she is signed off from work due to anxiety but she has declined this.” The headteacher sought advice about a recommendation for ill health retirement. The Tribunal found that the head teacher considered that the claimant had shortcomings at work because of her ill health and appeared to write her off as having a future as a teaching professional in the school.[63]Further at a meeting between the claimant and Ms. Shearer on 18 December 2019, Mrs. Shearer produced the draft Occupational Health referral (page 299). In the document Mrs. Shearer raised a number of concerns about the claimant’s ability as a teacher and indicated a number professional failings from critical comments of colleagues. The claimant’s evidence is that in the meeting the head teacher referred to a number of emails from colleagues that supported these criticisms. The respondent disputes this and relies upon the fact that the claimant’s email dated 19 December 2019 (p.294) does not mention any reference to emails. However the claimant’s email dated 16 January 2020 does refer to the sheaf of emails shown to the claimant in the December 2019 meeting and Mrs. Shearer does not deny that emails were referred to (page 319). On the balance of probabilities, the Tribunal concluded that the headteacher referred to emails of concerns about the claimant from colleagues. At the meeting on 18 December, the claimant felt threatened by this suggestion and the Tribunal finds, understandably so. The claimant took the paperwork away. Case Number: 1305815/2020 & 1310216/2020 21[64]After the meeting on 19 December 2019, the claimant emailed Mrs. Shearer page 294). The claimant disputed a number of assertions made by the headteacher in the occupational referral document. The claimant stated “In the form you note concerns about my phonic knowledge and ability to spell high frequency words. However, when we spoke yesterday you stated that actually your comments related to an occasion when a child had used “oo” instead “oa” and I had not corrected them. I would like clarification as to whether you feel my spelling is affected by the treatment I received for cancer or that I had failed to correct a child’s work appropriately on this occasion. Since the pupil’s experience is always paramount in my practice I was hurt to read that you believe I have not carried out tasks as part of pre-planned work. I would like to understand whether this relates to the occasion when I couldn’t access the planning prepared by another teacher, prior to or on the day at work as a result of IT failures that could not be addressed either by myself, you or our IT support? Since then it has been recognised that I have been using an old laptop which is problematic and that documents are saved in numerous files of which I had not been made aware at the time. I strongly disagree that I am unable to log onto a functioning computer and refute the suggestion that loss of digital information has lead to non attendance at courses or classes. Could you please let me know of the incident you are referring to or is this relating to the Elklan training that I did actually attend? As you have told me that this process has been difficult for you and that is why it has taken so long, I am sorry at this busy time to put it back on your desk.”[65]Mrs. Shearer suggested a further meeting for 19 December (p.293 -294). Mrs. Shearer stated that her priority was to support the claimant from her return to work and make reasonable adjustments. She stated that despite reasonable adjustments having been made she still had concerns that the claimant was struggling with some fundamental aspects of the teaching role.[66]A further meeting took place between the claimant (accompanied by her mother, Diane) and Mrs. Shearer on 20 December 2019. Notes of the meeting were taken by Katie Rushforth (p.295-296). Mrs. Shearer made reference to concerns set out at the meeting on 18 December namely logging onto the laptop; a problem with ipads and a failure of the claimant to attend a training day. She further mentioned issues of planning in May, memory issues in April and July. The claimant provided her explanation of what had occurred and stated she believed that the training was optional; the training had been after school hours and the claimant did stay for it. The claimant was unaware of the alleged mistakes and they had not been previously brought to the claimant’s attention. Mrs. Shearer stated she did not want to get explicit with the allegations, she had taken advice and stated that if she had to go down the capability route she would have to do this. The Tribunal finds that this was threatening and unnecessary and premature. No occupational health advice had been sought by the respondent in the summer of 2019 in accordance with the occupational advice in March 2019 and despite it would appear the respondent knowing about issues from April 2019 and the claimant had not been informed about Case Number: 1305815/2020 & 1310216/2020 22 them at the time. Therefore, it was too early for the respondent to be suggesting that capability procedures may need to be used. The claimant agreed in evidence that the notes of the meeting were accurate save for whether the claimant accepted the headteacher’s comments. The Tribunal concluded that the claimant did not accept the headteachers comments but signed the form (page 300-1) by amending one sentence only just to obtain the Occupational Health referral and the claimant signed it to avoid going down a disciplinary route. The claimant felt threatened.[67]The claimant was concerned about the criticisms of her work so she text Laura Whitty on 3 January 2020 stating “It appears that I have made a series of mistakes since my return to work which many colleagues have noted. I feel sad that you couldn’t have shared these with me or is it that Emma has been asking you if I’ve had any problems so that she can help resolve them? Going forward I will not be offended if you wish to point out any issues.” Laura Whitty responded (p.304) that the headteacher had asked how the claimant and stated that there were some things the claimant has forgotten. She stated she thought it was always seemed supportive (page 307). Laura Whitty stated nobody has been running to Emma; she stated “..just when she asked..”. The Tribunal found by the nature of the date of each and every record of the claimant’s performance made by colleagues there was an effort by the headteacher to collect information about the claimant’s capabilities which ultimately the headteacher used to reinforce her view that the claimant was not able to perform in her job. She had the perception that the claimant was not up to the job because of her disability. She had sought corroborative evidence to support her view and stored that information up, in the absence of seeking further occupational health advice in the summer of 2019 and ultimately used that information against the claimant.[68]On 8 January 2020 the claimant had a conversation with Liz Mason who informed the claimant that she had attended a social event at or around Christmas 2019 with existing members of Riverside School, Rachel Greaves and Miss. Reynolds. Liz Mason said that Miss. Greaves and Miss Reynolds had been approached by Miss. Greaves, Head Teacher in relation to her and in relation to her abilities. She told the claimant that Miss. Shearer’s attitude towards the claimant was that she should get out. The. Respondent was critical of this evidence. However, the Tribunal had the opportunity of hearing the evidence of Liz Mason and found her to be a consistent and credible witness and the Tribunal concluded that her evidence was accurate.[69]On 8 January 2020 the claimant went off sick with an anxiety state for one month (page 307A). On 9.1.2020 the claimant was sent an occupational health appointment to see Dr. Critchley 308A. On 9 January 2020 in a text exchange with the claimant a colleague wrote “I can imagine its probably Emma. She hates anyone questioning her decisions and goes into defensive mode” (page 311). The Tribunal found that this was reflected in cross examination where the headteacher was unwilling to accept that she may have made some mistakes in the management of the claimant. The headteacher was emphatic she had made no errors in the management of the claimant which included a failure to follow policy to hold a return to work Case Number: 1305815/2020 & 1310216/2020 23 interview and or clarify occupational health advice about the claimant taking on unfamiliar work from March 2019 or seek occupational health advice in the summer of 2019.[70]By email dated 10 January 2020 (p.312) the claimant referred to being upset about the meeting on 20 December. The claimant stated that the revelations about her performance were shocking as the headteacher had not raised any at the performance management meeting on 16 October 2019. The headteacher accepted that she did not raise concerns on 16 October but stated in her email that the purpose of that meeting was to agree targets for the coming year and that targets were not reviewed from the previous year as the claimant returned to work in April and was on an extended phased return during the summer term. The Tribunal do not accept this explanation. It would have been reasonable to alert the claimant to some performance concerns in the context of setting targets on 16 October 2019. The Tribunal concluded that the reason that these were not raised with the claimant at the time was because the headteacher thought the claimant would take ill health retirement and leave the school.[71]On 15 January 2020 (p.316A) Lauren Way at the request of the headteacher set out in an email, criticisms of the claimant’s performance. She sets these out in paragraphs concerning general, classroom management, planning and assessment, marking and learning and states “I’ve tried to outline what we have discussed previously about Rachael during my year 2 PPA below.” A further document was collected from a colleague dated 16 January 2020 stating “she could not think of any space shape and measure activities to plan linking to Diwali..”(page 317). A further email was provided from another colleague requested by the Headteacher stating “during a staff meeting about ipads with external visitors Rachael left the room in tears as she was struggling to keep up with the new instructions for setting up and new apps..She said she was not happy working in Y2 as she found it fast paced and so different to what she was used to..”(page 318).[72]On 16 January 2020 the claimant sought the sheaf of emails shown to her on 20 December 2019. The headteacher said that she was putting these together.[73]A further occupational health report dated 24 January 2020 (p.321-3). Dr. Mark Critchley highlighted some difficulties in word finding and some memory issues and these problems are likely to be long term. In his opinion, the main factor preventing the claimant from working, was stress and anxiety at the way she feels that she is treated over the past couple of months with minimal support, little responses to requests for assistance or reasonable adjustments and her colleagues being questioned behind her back about work performance related issues. His opinion was that the claimant was fit for teaching but recommended some additional support and adjustments to include working with a younger age group, having one class (rather than four) and having some additional support. He did not consider that the clamant would currently satisfy the criteria for ill health retirement. Case Number: 1305815/2020 & 1310216/2020 24 He advised that the claimant would meet the criteria of disabled under the Equality Act 2010 by reason of her cancer diagnosis.[74]On 6 February 2020 the claimant was signed off sick for a further six weeks. On 6 February Mrs. Shearer requested Dr. Critchley to amend the medical report taking into account matters which she disputed in the claimant’s history to the doctor. Further Mrs. Shearer stated to the doctor “Rachel has not yet returned to work and I have been advised that this will be the case for a further 2 months..in order to provide the appropriate support, I would ask that you respond as soon as possible.” Mrs. Shearer notified the claimant by email on 6 February 2020 that she had “requested further clarification and provided additional information in relation to some of his points raised in the report.” Mrs. Shearer stated she was “surprised” that the claimant’s G.P. had signed her off for two months which the Tribunal found this commentary to be unnecessary, vindictive and intimidating to the claimant and resulted from the headteacher’s upset that the claimant complained to Dr. Critchley about the way she was treated with a lack of assistance and reasonable adjustments.[75]The claimant responded to Mrs. Shearer’s email stating that following the meeting in December and revelations and evidence obtained from staff about her competency she felt undermined which had worsened her stress and anxiety. She requested that further contact be by email.[76]Mrs. Shearer rang and wrote to Dr. Critchley page 328 referencing teaching standards. On 7 February 2020 Dr. Critchley advised that the claimant was fit to participate in discussions about unresolved issues and would benefit from written submissions in relation to the issues so that she can discuss them with her trade union and prepare her response. The Tribunal concluded that Mrs. Shearer was considering taking the claimant down the capability route or that the claimant would take ill health retirement (p.323//336).[77]On 11 February 2020 (page 338) Mrs. Shearer informed the claimant she had spoken to Dr. Critchley and that he felt the best option to overcome the claimant’s anxiety and stress was to return to work with support “as a matter of urgency as stated in point 5 of his report.“ She invited the claimant to a welfare meeting. This was not a fair representation of what Dr. Critchley has said in his report. He had suggested that resolving recent issues in the workplace should be addressed as a matter of urgency not the claimant’s return to work. The headteacher’s misinterpretation of the report was intimidating to the claimant who was off sick with mental health issues. The claimant in fact contacted Dr. Critchley who confirmed the urgency was only to resolve the workplace issues not a return to work.[78]The head teacher took advice from Human Resources on or about 10 February 2020 (p.337A). Case Number: 1305815/2020 & 1310216/2020 25[79]On 17 February 2020 (page 339) Anna Green (H.R. at Hoople Limited) sent an email to the claimant’s trade union representative, Paul Deneen suggesting a meeting on 25 February at Riverside to meet with the claimant and her trade union to discuss supporting the claimant’s return to work. The claimant immediately felt anxious and had requested contact via email with Mrs. Shearer.[80]On 24 February 2020 the claimant requested copies of the school’s polciies and her contract of employment. On 25 February 2020 (p.340) Mrs. Shearer provided copies of the requested documents to the claimant and stated taking account of Dr. Critchley’s report she may be able to offer a position to the claimant in reception from September 2020. The Tribunal finds that this was a considerable turn around in respect of the headteacher’s approach to the claimant and was likely a result of the headteacher taking advice and a concern that the claimant may well pursue action as regards to her treatment.[81]The unchallenged evidence of the claimant is that at this point she was suffering from shock, anxiety about people talking about her, general depression crying, loss of appetite, feeling insecure and uncertain about her abilities, anger that she had not been permitted time to fully recover from brain surgery and lack of confidence. As recorded in the note of Anna Green on 6 March 2020 the claimant was “terrified of walking in the door” of the respondent’s premises.[82]On 18 March 2020 the claimant lodged a formal grievance (p.350 -4) and she did so because of the way she felt she had been treated by the respondent. She sent the grievance to Mr. Weaver, the Chair of Governors at Riverside School (p.350-4). She stated that she had been needlessly subjected to “omissions and actions by Emma Shearer” and stated that she was left fearful for her future employment with anxiety and self-esteem. She highlighted a failure to have a return to work meeting; a failure to allow her to work in the familiar early years setting (and recommended by Liz Mason); no consideration of adjustments; failure to obtain occupational advice; the head teacher had gone behind her back; re-interpretation of Dr. Critchley’s report; a plan to put the claimant back in reception something she requested for 8 months but was told it was not possible.[83]Julie Bridgewater was appointed as investigator into the claimant’s grievance. The claimant had triggered the ACAS conciliation procedure and her solicitors had been in contact with ACAS. Julie Bridgewater wrote to the claimant in open correspondence and referred to without prejudice communications. The claimant was concerned she was being pushed into early retirement. She wrote to the claimant again on 20 April and left a voicemail. The claimant requested her solicitors to inform Ms. Bridgewater that she was not well enough to meet to discuss the grievance investigation and she should continue her investigation[84]By letter dated 8 July 2020, Mr. Weaver, Chair of Governors wrote to the claimant and invited her to a meeting (page 376) to discuss the investigation Case Number: 1305815/2020 & 1310216/2020 26 report. The respondent did not provide the claimant with the required 5 days’ notice for the meeting. Further the claimant was provided with a 134 page document. She was too unwell to meet at that time. At the request of the claimant her mother read the report and the claimant felt she was being blamed for the delay in concluding the process.[85]By letter 15 July Malcolm Weaver Chair of Governors suggested a meeting in September (p.380).[86]On 20 July 2020 p.383 Mrs. Shearer wrote to the claimant and offered her a 0.5 FTE position in early years and stated she would be more than happy to discuss this with the claimant.[87]By letter dated 28 July 2020 (page 384) the claimant tendered her resignation citing the respondent had acted in a discriminatory way and in breach of contract. The effect of the conduct of Emma Shearer had made her unwell. She stated “Since my return to school in January 2019 following my post operation rehabilitation I was subjected to a variety of conduct which I consider to be discriminatory and in breach of contract. The effect of the conduct of Emma Shearer and of the school has caused me to again be unwell and as I set out in my letter to you of 9 July I am seeking further medical assistance in this regard. Whilst you have now postponed the investigation meeting this does not diminish the effect of the pressure that was brought to bear on me in the last 18 months, which merely compounded the previous contractual breaches. My confidence in the school and Emma Shearer has been completely destroyed and Emma Shearer’s pressurising of me to return to school when only a few months ago she was pushing me to take early retirement mean that I would not be returning to an unbiased atmosphere. Recent events including the comments and inaccuracies in the investigation report which you were trying to get me to answer in 4 days have tipped me over the edge and I feel that I can not therefore return to employment at Riverside. I feel that my health and career have been damaged by the conduct to which I have been subject since January 2019 and I therefore tender my resignation with half a term’s notice as required by my contract.”[88]By letter 3 August 2020 p.386 Ms. Shearer responded to the claimant’s resignation stating there are key points of time when a teacher can resign. She accepted the claimant’s resignation with effect from 31 December 2020. The claimant submitted a further sick note which covered the period from 7 August 2020 to 31 August 2020. She confirmed her contract would now end at the end of December. Submissions[89]Both parties’ representatives provided detailed written submissions and were given the opportunity to add to these orally. Case Number: 1305815/2020 & 1310216/2020 27[90]Mr. Hulse, on behalf of the respondent, accepted that the respondent did know that the claimant was disabled but it did not or could not reasonably have expected to know that the PCPs of having to work in key stage 1 or deploying part time staff in a way to cover the full-time teachers PPA staff would place the claimant at a substantial disadvantage. It was submitted that deploying part time staff as PPA cover provided consistency and continuity for the children. The medical position appeared to support that the claimant could return to work; the only adjustment suggested was a phased return to work. Dr. Sadhra did not advise the respondents to deploy the claimant in a particular way or particular year group; in December 2018 he had suggested on a temporary basis the claimant should not work in an unfamiliar setting. By April 2019 the claimant had demonstrated an ability to work in an unfamiliar setting so that Mrs. Shearer should have no concern about the claimant undertaking key stage 1 duties. The claimant did not communicate that working in key stage 1 or doing PPA cover would place her at a disadvantage. The claimant’s self-certification form dated 1 May 2019 did not set out any concerns about the claimant undertaking any key stage 1 duties and the claimant communicated she felt supported and was happy to ask for further support. Although there were concerns about retaining verbal information this was managed by being written down. The claimant did not raise concerns that she could not conduct key stage 1 work.[91]Mr. Hulse further submitted that there was no vacancy in early years for the claimant to take in the autumn 2019 period and this was not practical until September 2020. He submits there was no direct disability discrimination in failing to offer to the claimant this role. The respondent disputed any discrimination arising from disability claim. First the respondent submitted that the claimant did not request to work in early years. It was submitted that the claimant was happy to work hours in key stage 1 (page 252-3) namely that the claimant communicated she was looking forward to the responsibility of and challenge of being the classroom teacher as soon as possible. Further the claimant did not request any induction training for her key stage 1 role and was not provided with any. The claimant simply requested written information would be the only other help she would need (page 253).[92]Further the respondent disputed that the claimant was threatened with dismissal through incapability. The respondent relied upon the claimant’s pleaded case at paragraph 20 of the particulars of claim namely “Emma Shearer identified that there were teaching standards but was reluctant to pursue the capability route with the claimant..” Further at the meeting on 20 December 2019 it was submitted Mrs. Shearer had a clear intention to make an occupational health referral to avoid a capability procedure; it is recorded that the headteacher said “If ES were to go down the capability route she would have to do this as it is her professional responsibility. ES stated the purpose of this meeting and further referral is to avoid going down that route.” Further it was submitted that the headteacher gave the option of ill health retirement to the claimant but did not in fact suggest she should take it. Further Mr. Hulse submitted that the claimant was not subjected to a campaign to identify negative capability issues about her. This was supported by Laura Witty’s response to the claimant’s enquiry at page 305. Case Number: 1305815/2020 & 1310216/2020 28 The Tribunal were invited to find Liz Mason’s evidence that Rachael Greaves had told her to go do some digging was unreliable; it was set in a social setting and was hearsay. Although it was accepted that Mrs. Shearer expressed she was surprised that the claimant’s GP had signed her off for two months this was not unfavourable treatment and was not put to Mrs. Shearer in cross examination. In respect of the headteacher’s request that the claimant should return to work on 11 February 2020 this was in the context of Dr. Critchley’s medical opinion that the claimant had made a good recovery. Even if considered to be unfavourable treatment the respondent was pursuing a legitimate aim which was proportionate. In respect of contacting Dr. Critchley allegedly behind the claimant’s back; it was submitted that this was not an issue for the Tribunal because the claimant changed her mind in cross-examination and she did have knowledge but consent was the real issue.[93]Mr. Hulse stated that there was no harassment or victimisation; the same submissions apply to these claims. Further he submitted that none of the acts complained about individually or collectively could amount to a repudiatory breach of contract.[94]Mr Frew for the respondent stated that the evidence of Ms. Shearer focused on her concerns about the claimant’s diagnosis and life expectancy which was central to her decision making. He submitted in respect of the direct disability claim the claimant relied upon a hypothetical comparator and a real comparator, namely Ms. Sergeant. In Chief Constable of Norfolk v Coffey (2019) EWCA civ 1061 the court of appeal held the correct comparator would be a person about whom no stereotypical assumptions were made and how they would have been treated. Mr. Frew submitted that Mrs. Shearer made stereotypical assumptions that the claimant was so unwell that she could not teach as demonstrated by her attempt to reduce the claimant’s contract from 0.5 to 03. The suggestion that part time staff were to cover PPA was only strictly applied to the claimant as a disabled person and not Miss. Sergeant. Mr. Frew submitted that Ms. Shearer took the view that the claimant was incapable of doing her job.[95]In respect of a failure to make a reasonable adjustment Mr. Frew submitted the respondent should have allowed the claimant to work within early years. He submitted that Mrs. Shearer’s evidence was inconsistent; first it was suggested it would cost the respondent £4,500; also there was a suggestion it was for continuity of the children and operational reasons. He compared this to the treatment of Gemma Gammon who had her contract incrased by 0.1. He referred to the EHRC Code Paragraph 6.33 which sets out a number of potential reasonable adjustment and submitted in accordance with the case of Archibald v Fife Council (2004) IRLR 651 a disabled employee might be given priority over others. Further in Southampton City College v Randall (2006) IRLR 18 the creation of a new post is not precluded from being a reasonable adjustment. He referred to the ability of Mrs. Shearer of being able to create a job in 2020. He also relied upon Chief Constable of South Yorkshire Police v Jelic (UKEAT/0491/09) where the EAT held that swapping a disabled employees role with that of a non-disabled employee Case Number: 1305815/2020 & 1310216/2020 29 was a reasonable adjustment. Further in the case of Griffiths v The Secretary of State for Work and Pensions (2015) EWCA Civ 1265 he relied upon whether an adjustment might be reasonable even if it is not clear that the step proposed will be effective or not. He submitted the claimant was successful in early years and an adjustment should have been made for her to carry out that work.[96]Mr. Frew submitted the way in which Mrs. Shearer identified capability issues was totally inappropriate. He submitted Mrs. Shearer downplayed the issues raised with the claimant describing them as concerns not allegations. She continued to raise capability at the meeting on 20 December 2019; “..she had taken advice and didn’t want to get explicit about things that staff had said if ES was to go down the capability route she would have to do this as it is her professional role..”[97]Mr. Frew submitted that the something arising from the claimant’s disability was the claimant’s inability to cope with Key Stage 1 due to her memory loss and coping strategies. On 6 February 2020 Mrs. Shearer challenged the integrity of the claimant by expressing her surprise that the claimant’s G.P. had signed her off for a further two months given that the occupational health report had said the claimant was fit to return to work.[98]He submitted the respondent did not provide any specific evidence to substantiate a justification defence; there was no evidence in relation to there being a proportionate means of achieving a legitimate aim.[99]Mr. Frew submitted that the claimant was subject to harassment related to disability; Mrs. Shearer did not accept that the claimant was capable of working in the school; collected information from colleagues about the claimant’s performance and used it against the claimant.[100]In respect of victimisation the actions of the claimant on 16 October 2019 amounted to a protected act and by reason of this act the claimant was subject to a detriment.[101]In respect of the constructive unfair dismissal claim, he referred to the letter detailing her resignation dated 28 July 2020.
Conclusions
[102]The Respondents accept that the Claimant was at the material time of the claim a disabled person as defined in section 6 of the Equality Act 2010 by reason of the condition Grade 3 Anaplastic Astrocytoma (a malignant brain tumour condition). Further, the Respondents accept that they had knowledge of the Claimant’s disability at all material times.[103]Direct discrimination (disability) contrary to section 13 EA 2010[107]The Tribunal has already found that the Claimant was not given the opportunity to work in Early Years from September 2019. The factual context is that the headteacher did not consider the claimant for this role and did not ask whether she would be willing to do it. Instead, the headteacher put the claimant into teaching years 1 and 2 (not her expertise nor the role she conducted prior to her absence due to ill health) and gave the role to Claire Sergeant who had less experience of this role and less qualifications than the claimant. The Tribunal finds that the headteacher did know the claimant wanted this post and had a personal recommendation by Ms. Mason who had worked with the claimant and seen her succeed in this position. The tribunal has found the headteacher’s explanation about this namely cost, the claimant wanted to stay on a 50% contract to be Case Number: 1305815/2020 & 1310216/2020 30 unpersuasive. The cost issue does not make sense to the Tribunal; the post had a budget for a 60% employee and the headteacher was willing to allow the claimant’s colleague to increase her working hours by 0.1. The Tribunal reject this explanation. As for the claimant wishing to stay on a 50% contract; the claimant had only expressed this view in the context of being requested to consider dropping her contract to 0.3. The claimant was never given the opportunity to consider taking on the position. The Tribunal rejects this explanation. The Tribunal takes account of the circumstances of Claire Sergeant. She was less experienced and less qualified than the claimant, and on this basis the Tribunal does not find that she was an actual comparator. However, taking Claire Sergeant’s circumstances into account the Tribunal concludes that the Respondents treated the Claimant less favourably than they treat or would treat others; the claimant was an obvious choice for this position; she was experienced and qualified; was recommended for the post by Liz Mason; the headteacher knew she wanted the position.[108]The Tribunal now considers whether the less favourable treatment was because of the protected characteristic of disability? The Tribunal concludes that the claimant was treated less favourably because of her disability. The reasons put forward by the respondents not to consider or offer the role to the claimant as indicated above were unpersuasive. The Headteacher’s explanation that the claimant was unwilling to carry out a 0.6 role is rejected; she was never asked. The claimant was told that part time people are restricted to PPA; and there should be no job shares. These rules seemed to have only been applied to the claimant because Ms. Gammon and Miss. Sergeant part time teachers were permitted to job share and the hours of Ms. Gammon were increased by 0.1 to 0.5. The Tribunal concludes the claimant was directly discriminated against because of her disability. Discrimination arising from disability (section 15 EA 2010) 104. The Tribunal concludes that the Claimant’s inability to properly cope with Key Stage 1 including her memory loss and coping strategies arose from her disability. There was no updated occupational health report (as advised by the occupational doctor) in the summer of 2019. The claimant informed the Occupational Health doctor that she was having some difficulties with word finding. The evidence collected on the instruction of the head teacher which the Tribunal find she was aware of indicated that the claimant did have issues with memory loss; see references to this on 30 April, 3 July and 6 May.[110]The Tribunal finds that the Claimant was refused the reasonable adjustment of working in Early Years because she was disabled. This is a valid direct disability claim but the Tribunal does not find the reason was something arising in consequence of her disability pursuant to section 15 of the Equality Act 2010. 110. The Claimant was not provided with induction training or training for the Key Stage 1 role. The claimant did not seek such training and the Headteacher assumed because the claimant had conducted this role 9 years before she would not require training. The reason was not for the something arising in consequence of the claimant’s disability.[112]The Tribunal finds that the Claimant was threatened with the potential of dismissal through her capability because of concerns about her inability to properly Case Number: 1305815/2020 & 1310216/2020 31 cope with Key Stage 1 including her memory loss and coping strategies. The Tribunal rejects the respondent’s evidence that capability procedures were mentioned to the claimant in the context that the headteacher’s duty was to report this. The headteacher related criticisms of the claimant’s performance from colleagues as a consequence of her disability. This is supported by the occupational health review completed by the headteacher that makes direct reference to the concerns about the claimant’s performance as only having occurred following her ill health. The Tribunal rejects that this was justified. At the time the headteacher made this reference to the claimant she had not received any up to date occupational health advice (contrary to advice she had not sought occupational health advice in the summer of 2019); the suggestion that capability procedures were an option at this stage was premature and inappropriate. The medical evidence had not been received by Dr. Critchley. The Tribunal finds that the head teacher raised capability procedures with the claimant because the headteacher perceived the claimant’s performance was related to her disability.[113]The Tribunal has found that the headteacher raised the possibility of the Claimant taking ill-health retirement at a meeting with the claimant on 18 December. The Tribunal finds that this was raised by the headteacher because the claimant was perceived to be underperforming. The Claimant’s inability to properly cope with Key Stage 1 including her memory loss and coping strategies arose from her disability. The Tribunal finds that this was not justified at the time the headteacher raised it. At this stage there was no updated occupational health report and the claimant had not indicated that she was looking for ill health retirement.[114]The Tribunal finds that the Claimant was subject to a campaign to identify negative capability issues about her. The Tribunal has found that there was a collation of evidence by the claimant’s colleagues about her performance at the request of the headteacher. This is supported by Liz Mason’s evidence that the headteacher wanted the claimant out of the school. The Tribunal finds that this was done because the headteacher perceived that the claimant was not performing. The Claimant’s inability to properly cope with Key Stage 1 including her memory loss and coping strategies arose from her disability. The campaign was not justified. It was wholly disproportionated to have subjected the claimant to a campaign. If the recording of the claimant’s errors/concerns about her performance were sought, as the respondent suggests to support the claimant at work, it is inexplicable why they were not raised with the claimant at the time; nor did they lead the respondent to seek up to date occupational health advice (in accordance with advice) in the summer of 2019 or were not mentioned to the claimant in the course of the meeting on 16 October 2019.[115]On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's G.P. had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work. The Tribunal finds that this comment by the headteacher was unnecessary, vindicative and gratuitous. The headteacher did this because she was upset that the claimant had complained about the way she was treated by the respondents to Dr. Critchley. The Tribunal concludes that this was not something arising in consequence of her disability. Case Number: 1305815/2020 & 1310216/2020 32[116]Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency. In fact the headteacher had misquoted the letter and this was not in fact what the doctor stated. The Tribunal finds that the headteacher did this because she was upset that the claimant had complained about the way she was treated by the respondents to Dr. Critchley. The Tribunal concludes that this was not something arising in consequence of her disability.[117]The Tribunal finds that Miss Shearer did contact the Occupational Health expert without the knowledge of the Claimant. However, the headteacher did inform the claimant afterwards that she had done so. The Tribunal does not accept that this was done because of the claimant’s inability to properly cope with key stage 1 including her memory loss and coping strategies. The Tribunal takes account of the fact that an employer frequently will seek clarification of a medical expert’s opinion. Here, the headteacher did this because she disagreed with some of the commentary from the claimant given to the doctor and she wished to put her account to the doctor and sought whether in the light of her account whether Dr. Critchley’s opinion would be different. The Tribunal do not find that this was unfavourable treatment because of something arising in consequence of the Claimant's disability.[118]Failure to make reasonable adjustments[119]The Respondent accepts it did apply two PCPs namely the practice of the Claimant having to work in Key Stage 1 and the practice of deploying part-time staff in a way which would cover the full-time teachers' planning, preparation and assessment (PPA) time.[120]From the claimant’s evidence and the evidence collated by the respondent from the claimant’s colleagues as to the claimant’s performance, the claimant was unable to properly cope with Key Stage 1. The Claimant’s role in Key Stage 1 demanded that she teach across four classes which demanded her to have knowledge of 120 pupil names, histories and behaviours. The Claimant did not receive an induction to the Key Stage 1 curriculum and each class had a different routine with planning and materials stored in numerous software formats and behaviour management strategies. The requirement for the claimant to work in key stage 1 did place her at a disadvantage because she struggled with word finding and her memory was adversely affected by her disability and it was very difficult for the claimant to have knowledge of so many pupil’s names, histories and behaviours and the amount of planning in different software formats and behaviour management strategies.[121]In respect of constructive knowledge, the occupational health doctor did not raise memory issues in his reports in December 2018 and March 2019. He does comment about a concern about intermittent word finding in March 2019. The claimant did not when allocated this work specifically raise any concerns about doing this work either. The tribunal accepts that the claimant did state that she was happy to get back into the classroom at the time she was allocated the role in key stage 1. However, as the claimant continued to struggle with the tasks in key stage 1 as noted by the claimant’s colleagues the first Respondent know or could it reasonably be expected to know that the Claimant was likely to be placed at any such disadvantage. In any event the Tribunal find that the respondent actually knew on 16 October 2019 when the claimant expressly informed the headteacher Case Number: 1305815/2020 & 1310216/2020 33 in the course of the meeting that she was struggling. The Tribunal notes there does not appear to have been clarification sought about the claimant conducting this role from an occupational health perspective and as soon as the claimant was recorded by colleagues of having memory issues in April 2019 onwards and of being upset, pressured and anxious, the respondent should have known that conducting this work would place her at a substantial disadvantage. If the respondent had followed the occupational health advice to seek a review in the summer of 2019 the Tribunal concludes that the respondent would likely have known about the substantial disadvantages.[122]Furthermore teaching key stage 1, everything was new, unfamiliar and the Claimant did feel vulnerable where she was forced to take a big step change. The claimant did have some support by way of a teaching assistant but the teaching assistant was removed where there was sickness. The support was limited. The Claimant was affected by the time pressures of teaching four focusses a day in Key Stage 1 and further she did not feel that Guided Reading was successful for her. The Claimant did grow increasingly anxious and this is evidenced by her conversation with the headteacher on 16 October 2019.[123]The Tribunal concludes that it would have been a reasonable adjustment to allow the Claimant to work within Early Years from September 2019 and certainly by no later than 16 October. The respondent’s case is that there was no vacancy in early years at this time. The Tribunal has already found that this was due to the early years role having been given to Claire Sergeant as opposed to the claimant. The Tribunal notes that in respect of reasonable adjustments an employer may treat a disabled employee more favourably. For this reason the Tribunal rejects that there was no vacancy in early years; this role could and should, have been offered to the claimant and there was a failure to make a reasonable adjustment.[126]Harassment related to disability (section 26 EA 2010)[127]In respect of the pleaded allegations the Tribunal finds as follows : (i)The Claimant has been refused the reasonable adjustment of working in Early Years The claimant was refused the reasonable adjustment of working in early years because the claimant was not offered it by the headteacher. However, the Tribunal considers that this allegation is in reality the same allegation made in respect of the direct disability discrimination claim for which the claimant has succeeded. As this is a successful complaint of direct race discrimination then by virtue of section 212 of the Equality Act 2010 this can not be also an act of harassment related to disability. (ii)The Claimant was not provided with induction training or training for the Key Stage 1 role; The claimant was not provided with induction training or training for the Key Stage 1 role but the Tribunal has already found that this had nothing whatsoever to do with disability. The headteacher assumed because the claimant had taught this some 9 years ago she did not require an induction course and the claimant did not request one. (iii)The Claimant has been threatened with the potential of dismissal through her capability Case Number: 1305815/2020 & 1310216/2020 34 The Tribunal has already found that the claimant was threatened with the potential of dismissal through her capability. (iv)The Claimant has had it suggested to her that she take ill-health retirement; It is accepted that this was not in the gift of the headteacher but she was directing the Claimant towards this by mentioning it at the meeting in the context set out above and when the claimant protested she was not interested the headteacher sent the claimant all the information. The Tribunal concludes that the headteacher did suggest to the claimant that she should take ill-health retirement. (v)The Claimant has been the subject of a campaign to identify negative capability issues about her The claimant was subject to a campaign to identify negative capability issues about her. (vi)On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's GP had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work; On 6 February 2020 Miss. Shearer did contact the claimant to identify her surprise that the claimant’s G.P. had signed her off for a further two months given that the Occupational Health report (dated January 2020) had said that the claimant was fit to return to work. The Tribunal has found this was unnecessary and vindicative. (vii)Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency Miss. Shearer did contact the claimant again on 11 February 2020 identifying that the claimant should return to work as a matter of urgency. This was incorrect and Miss. Shearer misquoted the medical information. (viii)Miss Shearer had contacted the Occupational Health Expert again without the knowledge of the Claimant. Miss Shearer did contact the occupational health expert again without first informing the claimant but did inform the claimant at a later date. The Tribunal finds that this employer sought clarification which is often the case in situations where the respondent takes issue with the account given by the employee to the occupational health department. (16)If so, were each or any of the acts listed above unwanted? The Tribunal finds that all of the acts listed were unwanted conduct. (17)If so, did each conduct relate to disability? The Tribunal finds save for issues (ii) and (viii) all of the pleaded unwanted was related to the claimant’s disability (please note finding in relation to (i)). (18)If so, did each conduct have the purpose (taking into account the Claimant’s perception, the circumstances of the case and whether it is reasonable for the conduct to have such an effect) the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? The Tribunal is mindful when considering these issues it must have regard to the perception of the claimant but conduct is only unlawful if it was reasonable for the claimant to have that perception. The unchallenged evidence of the claimant is the Case Number: 1305815/2020 & 1310216/2020 35 conduct upset her and by the early part of 2020 she was absent from work due to stress and anxiety. The Tribunal concludes each of the acts save for (ii) and (viii) had the purpose and the effect of violating the claimant’s dignity and/or created an intimidating, hostile, humiliating or offensive environment for the claimant (again please note finding in respect of (i).[128]Victimisation (19)The Tribunal concludes that the Claimant raised concerns about her disability and issues with work when seeking support with Mrs Shearer at the meeting on 16 October 2019 and mentioned again in her email to Mrs. Shearer on 29 October 2019. The Tribunal concludes that this was a protected act within the meaning of section 27 of the Equality Act 2010. (21)In respect of the alleged pleaded detriments the Tribunal finds as follows : (i)The Claimant has been refused the reasonable adjustment of working in Early Years The claimant did suffer a detriment but the refusal of this adjustment occurred long before she raised concerns on 16 and 29 October 2019. (ii)The Claimant had been threatened with the potential of dismissal through her capability The claimant was threatened with a capability process on 20 December 2019. The Tribunal finds that this threat was connected to the fact that the claimant had made a protected act on 20 October 2019. (iii)The Claimant has had it suggested to her that she take ill-health retirement; This was suggested to the claimant at a meeting on 16 October 2019 and the Tribunal finds that the reference to ill health retirement was connected to the claimant making a protected act. (iv)The Claimant has been the subject of a campaign to identify negative capability issues about her The Tribunal finds that this campaign commenced from the start of the claimant’s role in early years and therefore do not find it was causally connected to the protected acts. (v)On 6 February 2020, Miss Shearer contacted the Claimant to identify her surprise that the Claimant's GP had signed her off for a further two months given that the Occupational Health Report (January 2020) had said that the Claimant was fit to return to work The Tribunal concludes that this was gratuitous and vindictive and connected to the raising of the claimant’s protected acts on 16 and 29 October 2019. (vi)Miss Shearer contacted the Claimant again on 11 February 2020 identifying that the Claimant should return to work as a matter of urgency There was no adequate explanation as to why Miss. Shearer could have misquoted so inaccurately the medical report. The Tribunal finds that this was connected to the protected acts. (vii)Miss Shearer had contacted the Occupational Health Expert again without the knowledge of the Claimant. Case Number: 1305815/2020 & 1310216/2020 36 The Tribunal does not find that this was connected to the protected act. The respondent was seeking clarification from the medical expert to comment upon the respondent’s account.[129]Constructive unfair dismissal (23)The Claimant relies upon the implied term of trust and confidence and includes the implied term not to be discriminated against. The Tribunal reminds itself that in considering this issue it must take into account whether the employer has conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee and whether the employer had no reasonable and proper cause. In respect of the pleaded case the Tribunal finds that (a)Was the Respondent in fundamental breach of the terms and conditions of the Claimant's employment in subjecting the Claimant to disability discrimination as set out within Pages 89 – 93 of the Bundle? In so far as the Tribunal has found that the respondent acted in a discriminatory way towards the claimant it is determined that the respondent conducted itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. The Tribunal rejects the respondent’s case that at all times it wished to support the claimant back into the workplace. The failure to provide the claimant with work which she was familiar with; failure to make reasonable adjustments particularly in the context of the recommendation of Liz Mason for the claimant to conduct the early years role; collated information from colleagues of “concerns” about the claimant’s performance but failing to raise these with the claimant at the time or with occupational health in the summer of 2019; suggested she should take early ill health retirement; threaten capability procedures; vindictively expressing surprise that the clamant was absent from work; suggesting that the claimant to return to work urgently misquoting the medical advice was conduct likely to destroy or seriously damage the relationship. No reasonable or proper cause was provided to the Tribunal as to these actions. As a result of this conduct the claimant became ill. (b)What was the most recent act or omission on the part of the Respondent that the Claimant states caused or triggered her resignation? The Tribunal accepts that the evidence of the claimant that the actions of the head teacher on 11 February 2020 in misquoting the medical evidence that she should return to work as a matter of urgency had a significant effect on her mental health and the confidence in her employer. By July 2020 the claimant had lost all hope in her employer; she did not consider the offer of a job in early years was genuine from the respondent; this had not been provided before and the requirement to attend a meeting at short notice (contrary to the policy); with a significant amount of material to consider added to her anxiety. She resigned. (c)The Claimant relied upon the contents of her letter of resignation dated 28 July 2020 which includes the following: v. I was subject to a variety of conduct which I consider to be discriminatory and in breach of contract. vi. Whilst you have now postponed the investigation meeting, this does not Case Number: 1305815/2020 & 1310216/2020 37 diminish the effect of the pressure that was brought to bear on me in the last 18 months, which merely compounded the previous contractual breaches. vii. Emma Shearer’s pressuring of me to return to school, when only a few months ago she was pushing me to take early retirement, mean that I would not be returning to an unbiased atmosphere. viii. Recent events including comments and inaccuracies in the investigation report which you were trying to get me to answer with four days have tipped me over the edge and I feel that I cannot therefore return to employment at Riverside. (24)Did the reasons provided within the resignation letter identify acts or omissions that were part of a course of conduct comprising several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? The Tribunal has found that these matters viewed cumulatively amounted to a repudiatory breach of trust and confidence. (25)Did the Claimant resign in response, or partly in response to that breach? This was unchallenged and the Tribunal conclude that the claimant did resign in response to that breach. (26)Did the Claimant suffer a discriminatory dismissal pursuant to Section 39(2)(c) of the Equality Act 2010? The Tribunal concludes that the claimant was subjected to discriminatory treatment and as a result she resigned her employment. The claimant was dismissed because of her disability. 105. A hearing will take place to deal with remedy.