Ms Frankland v The Royal Wolverhampton NHS Trust: 1301281/2018

EMPLOYMENT TRIBUNALS

Case No 1301281/2018

Venue Birmingham

Hearing 30 October 2018

Between

Ms FranklandClaimant

The Royal Wolverhampton NHS TrustRespondent

Before

Employment Judge Harding

Mr Clay (instructed by Solicitor) for claimant

Ms Nettle (instructed by Solicitor) for respondent

Mr. I Clay (instructed by solicitor) for claimant

Mr. P Farrar (instructed by solicitor) for respondent

Date 23 June 2021

JUDGMENT

By consent the claim of wrongful dismissal (unpaid notice pay) is dismissed on withdrawal by the claimant. Case No: 1301281.18 Employment Judge Harding Dated: 30 October 2018 Sent to the parties on: 02 November 2018 For the Tribunal: Case Number: 1301281/2018 1 EMPLOYMENT TRIBUNALS EMPLOYMENT TRIBUNALS EMPLOYMENT TRIBUNALS EMPLOYMENT TRIBUNALSEMPLOYMENT TRIBUNALSEMPLOYMENT TRIBUNALS Claimant Respondent Paula Frankland v The Royal Wolverhampton NHS Trust PRELIMINARY HEARING Heard at: Birmingham On: 15 April 2019 Before: Employment Judge Woffenden Appearances For the Claimant: Mr. I Clay, solicitor For the Respondent: Mr. P Farrar, solicitor JUDGMENT

[1]The claimant has leave to amend her claim by replacing section 8.2 of her claim form with paragraphs 8 to 33 of the Further and Better Particulars of Claim dated 6 November 2018 ( “the Particulars “) save for “ and direct discrimination on grounds of disability contrary to section 13 Equality Act 2010 “ of paragraph 8 and paragraphs 16 17 18 19 20 21 and 23 of the Particulars.

[2]Unless by 29 April 2019 the claimant complies with paragraph 3.1 a) and b) of the order of Employment Judge Harding sent to the parties on 2 November 2018 (‘the Order’) the claim of disability discrimination shall be dismissed without further order.

[3]The claims which presently continue to hearing are of unfair dismissal and section 15 Equality Act 2010.

[4]The hearing is listed for 5 days as detailed in the Order. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.

[1]I now record that the issues between the parties which will fall to be determined by the Tribunal are as follows:

[2]Unfair dismissal claim 2.1. What was the reason for the dismissal? The respondent asserts that it was a reason related to capability which is a potentially fair reason for section 98(2) Employment Rights Act 1996. It must prove that it had a genuine belief in the capability and that this was the reason for dismissal. 2.2. Did the respondent hold that belief in the claimant’s capability on reasonable grounds? The burden of proof is neutral here but it helps to know the claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows: 2.2.1. The respondent’s wholesale failure to follow its own capability/long term absence management procedures and as set out in paragraph 5 of the Order. 2.3. Was the decision to dismiss a fair sanction, that is, was it within the reasonable range of responses for a reasonable employer? 2.4. If the dismissal was unfair, did the claimant contribute to the dismissal by culpable conduct? This requires the respondent to prove, on the balance of probabilities, that the claimant actually committed the misconduct alleged. 2.5. Does the respondent prove that if it had adopted a fair procedure the claimant would have been fairly dismissed in any event? And/or to what extent and when?

[3]Disability 3.1. Does the claimant have a mental impairment, namely anxiety? 3.2. If so, does the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? 3.3. If so, is that effect long term? In particular, when did it start and: 3.3.1. has the impairment lasted for at least 12 months? 3.3.2. is or was the impairment likely to last at least 12 months or the rest of the claimant’s life, if less than 12 months? N.B. in assessing the likelihood of an effect lasting 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. See the Guidance on the definition of disability (2011) paragraph C4. Case Number: 1301281/2018 3 3.4. Are any measures being taken to treat or correct the impairment? But for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities?

[4]Section 15: Discrimination arising from disability 4.1. The allegation of unfavourable treatment as “something arising in consequence of the claimant’s disability” falling within section 39 Equality Act is the claimant was dismissed because of her sickness absence which arose from her anxiety. No comparator is needed. 4.2. Does the claimant prove that the respondent treated the claimant as set out in paragraph 4.1 above? 4.3. Did the respondent treat the claimant as aforesaid because of the “something arising” in consequence of the disability? 4.4. Does the respondent show that the treatment was a proportionate means of achieving a legitimate aim? The respondent relies on the following:8.4.1 As to the business aim or need sought to be achieved: to ensure adequate staffing levels and managing attendance levels.

8.4.2 As to the reasonable necessity for the treatment: ?

8.4.3 As to proportionality: ? 4.5. Alternatively, has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had a disability?

[5]Remedies 5.1. If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy. The claimant is now working. I reminded Mr Clay that the burden of proof as to the nature and extent of any injury to feelings falls on the claimant. 5.2. There may fall to be considered reinstatement, re-engagement, a declaration in respect of any proven unlawful discrimination, recommendations and/or compensation for loss of earnings, injury to feelings, breach of contract and/or the award of interest.

[6]Judicial mediation

[7]I raised the possibility of this case being considered for an offer of judicial mediation. I explained how the process operates and provided a note giving a full explanation of the judicial mediation scheme. I emphasised that this was just an enquiry as to whether the parties would be interested in the Regional Employment Judge considering whether the case would be suitable for an offer of judicial mediation. Case Number: 1301281/2018 4

[8]The claimant expressed interest in this matter being dealt with by way of judicial mediation. The respondent (as an NHS body) is not interested.

[9]I made the following case management order by consent. Save as varied below the parties agreed the case management orders in the Order remain of full force and effect. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Amended response and Varied Orders1.1 The respondent has leave to present a draft amended response, marked for my attention, so as to arrive with the Tribunal and the claimant on or before 13 May 2019. The amended response will set out the respondent’s factual assertions in connection with the claims as now understood (including but not limited to the disability issue and legitimate aim) and leave will be granted if it does this.

1.2 Dates for compliance with the Order are varied as follows: a) Paragraph 5.1 -3 June 2019 b) Paragraph 5.2- 17 June 2019 c) Paragraph 5.3- 1 July 2019 d) Paragraph 6.1- 15 July 2019

1.3 By 22 July 2019 the parties shall write to the tribunal to confirm all directions have been complied with and the case is ready for hearing. CONSEQUENCES OF NON-COMPLIANCE

[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.

[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.

[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. _____________________________ Employment Judge Woffenden Date: 16.04.2019 Case Number: 1301281/2018 5 Case No: 1301281/2018 1 EMPLOYMENT TRIBUNALS Claimant: Miss Paula Frankland Respondent: The Royal Wolverhampton NHS Trust Heard at: Birmingham On: 8 August 2019 Before: Employment Judge Britton Representation Claimant: In person Respondent: Mr Farrar, Solicitor

REASONS

[1]In exercising my discretion to set aside the strike-out Order, I have taken into account the Claimant’s explanation for the delay, which I have accepted was innocent and unintentional. She appears to have been completely in the hands of her Solicitor whom she was instructing at that time. It is not clear to me exactly how the relationship between the Claimant and her Solicitor manifested itself, because it is not the Tribunal’s place to delve into the minute detail. However, on the basis of the explanation that the Claimant did provide to me, it did appear that there were grounds to suspect at the very least that the Claimant may have not been kept informed of what was required by the Tribunal and what was needed in order to comply with the Unless Order and by what date.

[2]I have also taken into account the extent of the non-compliance. The failure to comply with the Unless Order in substance was the Claimant’s failure to ensure that her medical records arrived with the Respondent’s representative by 29 April 2019, even though they were posted to the Respondent’s Solicitor prior to that date, and likewise her failure to ensure that the Impact Statement was received by the Case No: 1301281/2018 2 Respondent’s representatives prior to that date. It is agreed between the parties that the Impact Statement was received by the Respondent’s Solicitors one day late, on 30 April 2019. The Impact Statement on reading it does appear to me to be materially deficient in that it did not address the question of the impact of the Claimant’s alleged disability upon her ability to carry out day-to-day activities. However, as indicated above, I am satisfied that the Claimant was entirely in the hands of her representative in this regard.

[3]In my judgment, it would not be in the interests of justice to visit the consequences of any delay or default that there may have been on the part of the Claimant’s representative upon her in relation to these proceedings.

[4]I have had careful regard to the overriding objective and I am mindful of the need to avoid delay and ensure that, amongst other things, the case is dealt with fairly and justly. In my assessment, the principle requirement at this stage is to determine whether it is still possible for there to be a fair trial and for there to be a proper consideration of the proceedings. In my view, notwithstanding the Claimant’s failure to comply with a procedural step, notably on a second occasion, a fair trial is still possible.

[5]I have taken into account the extent to which the Claimant’s default and the ensuing delay, is likely to prejudice the Respondent and in my view the balance of the prejudice is in favour of allowing this application. If the application is not allowed, the Claimant will be deprived of pursuing a potentially valuable discrimination complaint whereas the prejudice to the Respondent, may be addressed by consideration being given to making an Order for costs.

[6]Although the Respondent’s representative did seek to persuade me that there would be prejudice to the Respondent in terms of delay because of the risk that the memories of witnesses would fade, this point was not made with any specific reference to any particular witness and was put to me as a generic observation. I am mindful, however, of the fact that in this case, the Respondent has already prepared the matter for trial, albeit to deal with an unfair dismissal claim but, as observed previously, by my colleagues who have dealt with the Case Management of this matter, and, as appears from the pleadings in any event, the factual material that is relevant to the unfair dismissal claim will in many respects overlap with the factual material that will be relevant for the Tribunal to take into account when dealing with a disability discrimination complaint.

[7]In view of my overall assessment and taking into account the interests of justice, and the overriding objective, the sanction of striking out the claim is not proportionate and therefore the order is set aside. Case No: 1301281/2018 3 Employment Judge Britton 15 August 2019 Case Number: 1301281/2018 - 1 - EMPLOYMENT TRIBUNALS Claimant Respondent Miss Paula Frankland v The Royal Wolverhampton NHS Trust FINAL ( HEARING (CONDUCTED PARTLY IN PERSON AND PARTLY BY THE CLOUD VIDEO PLATFORM) Heard at: Birmingham On: 21 to 23 June 2021 Before: Employment Judge Perry, Mrs I Fox & Mrs L Clark Appearances For the Claimant: in person For the Respondents: Mr A Gibson (solicitor)

[1]The claimant was not discriminated against contrary to part 5 of the Equality Act 2010 and her complaint that she was treated unfavourably because of something arising in consequence of her disability is dismissed.

[2]The claimant’s complaint of unfair dismissal is not well found and is also dismissed. Signed electronically by me