Miss E Greenwood v North Staffordshire Combined Healthcare NHS Trust and Ms J Povey: 1304761/2020
EMPLOYMENT TRIBUNALS
Case No 1304761/2020
Between
Miss E GreenwoodClaimantNorth Staffordshire Combined Healthcare NHS Trust and Ms J PoveyRespondent
Before
Employment Judge FindlayIn person for claimantMs L Badham (instructed by Counsel) for respondentDate 7 December 2021
JUDGMENT
[1]The claimant’s claim of unfair dismissal (brought against both respondents) is dismissed;[2]The claimant’s claims of failure to make a reasonable adjustment in respect of an ergonomic chair and standing desk are dismissed;[3]The claimant’s claims of failure to make reasonable adjustments in respect of her working hours and in relation to the driving element of her role were not made within the time limit in section 123(1)(a) of the Equality Act 2010 and the Tribunal which hears the final hearing in respect of her claims will determine whether it is just and equitable to extend time for those claims to be pursued;[4]The claimant’s claims under section 15 of the Equality Act in respect of :a. the alleged failure to inform her that she could accept a Band 6 role at a protected rate of pay without being interviewed for a band 7 role;b. of not being selected for a band 7 role; andc. of the refusal of the respondent to permit her to retract her notice; were made in time and can proceed to final hearing;[5]The claimant’s application to add Catherine Raper as third respondent is dismissed. 27 October 2020
REASONS
[1]By a claim form presented on 28 February 2020, the claimant made complaints of disability discrimination and unfair dismissal following the termination of her employment as a senior mental health practitioner (Band 7) with the respondent’s Home Treatment/Crisis Resolution Team, on 3 November 2019. There was a period of ACAS Early Conciliation between 6 February and 13 February 2020 (R1) and 20 – 25 February 2020 (R2).[2]The claims were the subject of three preliminary hearings – two for case management (on 4 August 2020 and 30 April 2021) and an open preliminary hearing on 27 October 2020 at which the claim for unfair dismissal was dismissed, along with two of the claims for failure to make reasonable adjustments, which were out of time.[3]The claimant’s disability is two-fold – a spinal condition causing pain and discomfort in her back and a mental impairment of anxiety and low mood. The respondent admitted that the claimant was a disabled person in relation to both those conditions prior to this hearing.[4]By the time of the hearing the claims and issues had therefore narrowed substantially from those present at the time the claim was commenced. The issues were as summarised in paragraphs 41.1, 41.3 and 41.4 of the Order of Employment Judge Findlay dated 27 October 2020.[5]The remaining claims were:5.1 Failure to Make Reasonable Adjustments This claim comprised primarily of two assertions – that the claimant should have been allowed to work for 22.5 hours per week and secondly, that she should have been permitted to restrict her home visits to patients who lived within a 20 to 30 minute drive of the respondent’s office. These claims had been determined to be out of time on their face at the open preliminary hearing on 27 October 2020. The tribunal was therefore required to determine whether it would be just and equitable to allow them to proceed before, if appropriate, considering them on their merits.5.2 Discrimination Arising from Disability This claim was about the respondent’s alleged failure to inform the claimant during a reorganisation process in August 2019 that she could accept a Band 6 role with protected pay without being required to go through the interview process for a Band 7 role. Secondly, the claimant alleged she was not successful in her application for a Band 7 position because of her sickness absence record and her need for reasonable adjustments including a reduction in working hours, which were things arising from her disability. Thirdly, the claimant alleged that she was not permitted to retract her resignation because of her history of sickness absence and the need for reasonable adjustments.
The hearing
[6]The hearing of the claim encountered some practical difficulties as follows. It commenced on the first day (6 September 2021) as an in-person hearing at the Tribunal in Birmingham. The claimant represented herself and, with the provision of adjustments such as regular breaks, being permitted to sit or stand as required and the provision of a suitable chair, she was able to give her evidence and deal with cross examination by the respondent’s counsel. Her evidence was incomplete when the Tribunal adjourned on the first day.[7]On the second day of the hearing (7 September 2021) the Tribunal was notified that the respondent’s counsel had become unwell overnight with suspected Covid-19 and had made arrangements for an urgent PCR test. The parties were excused at the respondent’s request for the rest of that day pending further news of the respondent’s Counsel’s fitness to attend. The Tribunal, with the parties’ agreement, converted the hearing to continue via video-conferencing (CVP) on the understanding that Mr Cooksey hoped to be able to participate from his hotel room via this technology from the following day onwards. The Tribunal used the time to continue with its reading.[8]On day 3 of the hearing, the Tribunal was advised that the respondent’s counsel was in fact quite unwell and could not attend but very much hoped to be well enough to attend to enable completion of the evidence on 9 September 2021, even if written submissions were required thereafter. He did not yet have the result of his PCR test. Conscious that it would be most unsatisfactory to delay the case part way through the claimant’s evidence, the Tribunal granted the postponement requested on 8 September 2021.[9]On 9 September 2021 (the 4th day of the hearing) the Tribunal was advised that Mr Cooksey’s symptoms had worsened and, whilst it was not believed to be Covid-19, he was too ill to resume the hearing this week. The Tribunal was greatly assisted by the listing team at Midlands West Employment Tribunal and, by juggling their own diaries, and taking into account the claimant’s availability, it was possible to find 2 days on 21 and 22 September 2021 when the evidence and submissions could be completed. With reluctance but understanding, the Tribunal therefore postponed the hearing to be completed then.[10]The claimant was represented by Miss Hodgkin when the hearing resumed on 21 September 2021 and completed her evidence. The respondent then heard evidence from Ms Josephine Povey, Associate Director, and the parties’ submissions, on 22 September 2021, reserving its decision. The Tribunal met on 19 November 2021 (the first available opportunity) to deliberate, when it reviewed all the evidence and reached this decision unanimously.[11]In addition to the oral evidence, the Tribunal had a 324 page joint file of documents. References in these reasons to page numbers are references to the pages of that file, unless otherwise stated.
The Facts
[12]Based on this evidence, the Tribunal made the following findings of fact.12.1 The claimant is a qualified mental health nurse. She commenced her employment for the respondent on 31 March 2008. The claimant accepted a position with the Home Treatment/Crisis Resolution Team as a senior practitioner. She was employed to work 30 hours per week. This team provided an acute service responding to referrals from various agencies to visit patients in the community undergoing serious episodes of poor mental health. The urgent nature of the work meant that each day senior practitioners would assess the callouts for that day and allocate them as appropriate to different practitioners dependent on experience and suitability. The claimant enjoyed her work and the Tribunal heard no evidence that there were any difficulties with her performance prior to the onset of her health problems. Indeed, she was a valued member of the team.12.2 On 7 January 2014 the claimant was involved in a car accident whilst at work. This was a rear end shunt when the car in which the claimant and her colleague were travelling was hit from behind by another vehicle. The claimant attributes her subsequent back problems to this accident. She developed pain and discomfort in her back which required medical treatment and significant medication. The problem did not resolve and became a chronic condition.12.3 On 10 November 2015 the claimant was involved in a further incident at work whilst visiting a service user, during which she felt terrified and at risk for her personal safety. The claimant was thereafter absent from work due to anxiety and depression from 10 November 2015 to 20 September 2016. An Occupational Health report following a consultation with the claimant on 26 February 2016 suggested that the claimant might be experiencing some PTSD following this incident (page 76).12.4 The claimant’s back problems were also still present during 2016 and, when reviewed by the respondent’s Team Prevent (Occupational Health) on 8 September 2016, reference was made to the this and the suggestion made that a special workstation and chair be procured for her (page 97).12.5 On 24 October 2017 the claimant commenced a further period of lengthy sick leave, due to her back condition. She was referred to Occupational Health once again and was assessed in a face-to-face consultation on 21 November 2017 (report, page 115). The summary of her condition at that time was that she suffered symptoms of pain in her lower back on a daily basis but was able to mobilise unaided, carry out light household chores and drive for short distances. Prolonged sitting exacerbated her pain as did heavy tasks requiring bending and lifting. The Occupational Health opinion at that stage was that the claimant was fit for work with some adjustments as follows. The respondent had already ordered specialist equipment for her workplace (the claimant told us this was a specialist chair and a rising desk) and Occupational Health advised that the claimant take regular breaks away from her workstation, carry out some stretching and take regular breaks every 30 minutes or so whilst driving for work purposes.12.6 As the claimant was still absent from work on 20 December 2017, a stage I sickness review meeting was held with the respondent’s Access and Home Treatment Manager, Sue Parkes. Ms Parkes wrote to the claimant on 29 January 2018 (page 121) to confirm what had been discussed and included this statement: “I advised that we need to be working towards a return date for you and I asked you to give some thought to what days/hours you might be able to undertake on your return as part of a rehabilitation plan and what (if any) adjustments will need to be made to your role either on a temporary or permanent basis”. Ms Parkes confirmed to the claimant that her specialist chair had been ordered.12.7 The claimant attended a stage II sickness review meeting on 12 February 2018 with Catherine Raper, Access and Home Treatment Team Manager, together with the claimant’s trade union representative and a senior HR adviser from the Trust. Ms Raper told the claimant that her special chair and rising desk had been set up ready for her to use when she was well enough to return to work. She added in her confirmatory letter following the meeting (page 124) “we discussed several options to help you to return to work, including reduced hours and being office-based which would reduce the driving you would need to do; we also discussed that you would be able to walk around when needed and take a break if that helped”.12.8 On 13 February 2018 the claimant was seen again by Occupational Health. In the report following that consultation (page 126) the health advisor recorded that the claimant felt her condition had deteriorated since the last occupational health consultation and she was awaiting a consultant review. The claimant reported that she was restricted in undertaking heavy tasks, bending and lifting and driving for longer periods and she still had difficulty sitting comfortably for longer than 30 minutes. The opinion of Occupational Health was that the claimant was unfit for work at that point.12.9 On 18 April 2018 Ms Raper carried out a further stage II sickness review meeting with the claimant. She highlighted the large amount of sick leave the claimant had taken during the last three years and advised her, with regret, that it would be necessary to consider moving to stage III of the process if a return to work date could not be identified (p134).12.10 On 23 May 2018 the claimant was reviewed again by Occupational Health. The report following that review was at page 137. The claimant was by this time undertaking physiotherapy treatment and acupuncture and was being seen by a pain management consultant. The claimant still had limitation in the time she could stand and walk for and it was noted that a combination of activity was best for her. She was said to be fit for work with temporary adjustments, namely the use of the specialist chair and desk riser that was in place, and permission to alter her posture throughout the day. A phased return to work was recommended.12.11 On 19 June 2018, the claimant returned to work on a phased basis. She was referred to Occupational Health again and had a telephone consultation on 10 August 2018 to consider her fitness for nightshift working. The report following her consultation (page 147) stated that she was “coping well with current duties and hours” but it was recommended that she refrain from nightshift working as it was likely to interfere with her medication regime. The advice was again that she should still ensure she was not sitting more than 15 to 20 minutes at a time if possible.12.12 The claimant was not required by the respondent to carry out night shifts following her return to work and this adjustment remained in place until her employment ended in November 2019.12.13 After the claimant returned to work in June 2018 on a reduced hours basis (22.5 hours per week), she managed to continue with her role, with adjustments, taking a single day off on 15 September 2018 and three days off 26 to 28 November 2018 for treatment for her back.12.14 On 25 January 2019 the claimant had a supervision session with her manager, Joanne Willis. Notes of the supervision and the agreed actions arising were at page 158 in the bundle. Under the heading “support needs” Ms Willis wrote “your flexible working has been extended for a further three months - currently working 22.5 hours - to support your physical health and work/life balance. Less back pain reported by you today following recent treatment which is having a positive impact on your work/life balance.”12.15 The claimant had a further supervision with Ms Willis on 12 March 2019 (page 160). The notes of that meeting recorded that the current flexible working arrangement in place for the claimant was to reduce her hours from 28.45 to 22.5 per week. There was a discussion around the review of these reduced hours and the claimant was to consider a return to her contractual 30 hours to fit in with the shift pattern and team working. It was noted that the claimant was about to receive treatment in the form of another injection for her back but no other issues were raised at that time about the claimant’s health needs.12.16 On 2 April 2019 the claimant made a formal flexible working application to remain on her current working pattern of 22.5 hours per week. She also requested to refrain from working nights. The application was granted by Ms Willis almost immediately as recorded in a letter dated 9 April 2019 (page 166). This was agreed as a temporary change to the claimant’s employment contract to be reviewed in three months.12.17 The claimant was referred to occupational health and reviewed again on 23 April 2019 (page 167). At this time the claimant advised that her rising desk appeared to be broken and the report included the recommendation for it to be repaired. The report included the comments that the claimant was aware that she must continue to get up at regular intervals to move about the work area and stop for frequent breaks when driving long distances. The report concluded with the statement that “no other adjustments were identified during our appointment”. The claimant was said to be still unfit to work nights, or a late shift followed by an early shift, but otherwise fit for work. It was recommended that these were made permanent adjustments.12.18 The claimant’s evidence to the Tribunal was that she knew of the need to mobilise every 20 to 30 minutes either in the workplace or when driving, but that in practice these adjustments didn’t happen because of the nature of the job. She said it was difficult to take regular breaks when driving or a passenger because she might be stuck in traffic or in need of getting to an appointment. She said that as far as possible shorter journeys were given to her when the callouts were being allocated but it didn’t always happen. She said she’d stop and stretch as often as she could but sometimes service needs made it impossible. The claimant added that the need for reduced driving duties was not documented as a required adjustment at page 160 in the bundle (the notes of her supervision meeting on 12 March 2019 with Ms Willis) because “there was not really anything to do about it”. In summary, the claimant said that limiting the driving required for her to get to patients was “not a realistic adjustment to have in the job I was in”. She suggested that she would have needed an alternative job to move to in order to avoid driving for more than 20 to 30 minutes.12.19 The claimant had a further four days’ sickness absence on 21 June 2019. This triggered a stage I sickness review meeting which was held with her line manager Joanne Willis (page 257). Ms Willis wrote to the claimant on 13 August 2019 (page 261) to confirm the outcome of the meeting. This letter included this statement that there had been a discussion about resuming the claimant’s contracted 30 hours per week “given your stability following the temporary reduction to 22.5 hours to support [her] recovery”. The claimant agreed to recommence her 30 hours per week as per her contract from the week commencing 14 October 2019. The end of this temporary change to working arrangements was confirmed by Ms Willis in writing in a letter of the same date (page 264).12.20 On 18 July 2019 the respondent commenced a 30-day consultation process in relation to a management of change process across Crisis Care. The purpose of the reorganisation was to provide a facility to act as a single point of access to deliver assessment and treatment for people with mental health issues. It was to be called “The Mental Health Crisis Care Centre” and was to bring together five existing teams, including the claimant’s Home Treatment Team.12.21 There was a detailed management of change consultation paper (page 170). For the claimant and others in similar roles this meant that she was at risk of redundancy but had the opportunity to apply for one of the band 7 posts in the new structure. The consultation paper stated as follows (p184): – 7.3 As part of this process affected individuals can voluntarily apply to step down to a lower band. If appointed, pay protection would not apply. 7.4 A post, which is the same band or one band below the individual’s current band, may be offered to An “at risk” person as suitable alternative employment. Protection of pay will be paid as set out in the Trust’s Pay Protection Policy’12.22 Those involved in the management of change process were asked to fill out a preferred options form stating whether they wish to apply for one of the band 7 roles in the new structure. The assessment criteria were at appendix 10.3 to the consultation paper (page 193). These included “qualifications, skills/knowledge, experience, personal qualities/leadership skills, regularity of attendance, disciplinary record and performance issues”. Under the “regularity of attendance” section it stated that any absences related to protected characteristics under the Equality Act 2010, including disability, would be discounted.12.23 The claimant said in her witness statement that she was concerned that she would be discriminated against or overlooked in the interview process due to her sickness absence and her inability to work nights. The Tribunal found this was a natural anxiety but not one in fact based on any evidence from the respondent that the application of their criteria, formal or informal, would result in this disadvantage nor did the Tribunal find evidence that such a prejudice existed amongst those who interviewed the claimant for a Band 7 position.12.24 It was true that Miss Willis was keen for the claimant to return to her contracted hours once she began to report more stability with her health. The claimant concluded that this meant that she needed to be working 30 hours if she was going to “stand a realistic chance” of being appointed to a band 7 post in the management of change process. The claimant told the Tribunal, in answer to questions from Mr Cooksey, that Ms Povey had said this to her in an informal 121 meeting held at the commencement of the consultation process, in the presence of her trade union representative, on an unknown date in or about August 2019.12.25 The Tribunal was not satisfied that Ms Povey used these words expressly to the claimant. This evidence did not appear in the claimant’s claim form or witness statement, but only as a response to questions from the respondent’s counsel. The Tribunal concluded that, bearing in mind in particular the wording of the issues in relation to the section 15 EqA claim, such a comment, if the claimant was confident of it, would have appeared in her witness statement, especially as this meeting was covered at some length by the claimant in paragraphs 54-55. This was evidence about specific words alleged to have been used in an un-minuted meeting over 2 years earlier by a manager from whom the Tribunal did not hear and needed to be approached with some caution as a consequence. The Tribunal found that it was most likely that Ms Povey simply suggested to the claimant at the meeting that if she was concerned about her hours in view of her health, she should seek another meeting with Team Prevent, so they could offer their up-to-date opinion as to what she needed. This was the version of events in the claimant’s witness statement.12.26 The Tribunal also took into account that the claimant was accompanied by her RCN trade union representative at the 121 meeting, yet she did not allege that he had queried the alleged comment by Ms Povey, or raised it with the respondent afterwards. The claimant advised the Tribunal that it was in fact the RCN representative who had told her that the interviews had been prejudged and the respondent “already knew who they wanted for the positions”. Whether there was any evidence at all to back up this bald assertion the Tribunal was not told, but unfortunately it seemed to sew seeds of doubt in the claimant’s mind which adversely affected her employment relationship from then on.12.27 The claimant filled out a profile form and expressed her interest in the band 7 roles. She stated (page 249) that the reasonable adjustments she had in place at that time were an ergonomic chair and standing desk when possible. She added that she was part-time working (30 hours per week) but working 22.5 hours on a temporary basis and was interested in or willing to consider a change to her working hours.12.28 On 23 August 2019 Ms Josephine Povey, the Service Manager (and second respondent) sent an email to a large group of staff, including the claimant, asking for expressions of interest for the Crisis Care Centre Service Manager role – a Band 8a position (page 271). The email stated that this position was being ring-fenced to the existing Band 7 staff who were at risk of redundancy. It went on to include the statement that, if individuals did not wish to express an interest in the post then they would simply be interviewed for the Band 7 positions or alternatively, for those individuals who had expressed a preference to move into a Band 6 role with pay protection, then that process would commence in due course.12.29 The consultation process ended and the claimant and others in similar positions to her were sent a letter dated 29 August 2019 (template at page 272) stating that their posts were now formally at risk of redundancy.12.30 The interviews for the Band 7 positions in the new structure took place between 2 and 4 September 2019. There were three members of staff on the interview panel – Josephine Povey, Patrick Ross-Osborne, Senior HR Adviser, and Fiona Platt, Service Manager. The interviews were competencybased interviews involving standard questions designed to test the candidates’ suitability against the published criteria for appointment. The Tribunal was provided with the manuscript notes taken by each interviewer in relation to the claimant’s interview which were in pro forma and followed the format of the interview question by question (page 274-290). There were similarities in the responses recorded by the interviewers for the claimant and in the marks given to her for them.12.31 There were 11 candidates for the Band 7 roles and seven positions. The interview scores were summarised in a spreadsheet at page 295. (The respondent had to provide a clearer copy of this page to the tribunal as it was illegible in the bundle). The interview scores were summarised individually by interviewer and also collectively. The highest score was 40 and the lowest was 7. This was the claimant’s score. The claimant was therefore one of the four staff who were unsuccessful in obtaining a Band 7 position. The spreadsheet recorded that the claimant would potentially be interested in an alternative Band 7 post on EMU or on the ward.12.32 The claimant’s evidence to the Tribunal was that she had to work doing client assessments prior to the interview and this may have affected her performance. She did not criticise the interview itself or the questions asked. However, she said that her scores were so low (2, 2 and 3) that she could not believe that the interviewers had not been influenced by her disability and absences from work. She said two out of the three people who interviewed her knew about her absences and she didn’t believe that they had not taken them into account. When taken through the interview pro forma notes she did not recall in detail the answers she had given, but felt sure that some of what she said was not written down by the interviewers.12.33 Ms Povey’s evidence to the Tribunal was that she had been aware prior to the interviews that the claimant had some sickness absence in her history because she was the line manager of Jo Willis. She knew that the claimant had had some mental health issues and some physical disability issues. However, she was clear that the recruitment process was based on skills and abilities and that the claimant’s disability and history of absence was not taken into account in any way. She explained that the claimant had not consistently answered the questions or given clear or relevant examples to demonstrate that she had the competencies sought.12.34 Ms Povey gave unchallenged evidence that a number of those who had been successful in the appointment process for the Band 7 roles had disabilities. She explained that at least one of the successful candidates was at a formal stage of the sickness absence policy, at least one had a long-term disability which could have led to long-term absence at any point in the future due to the nature of that disability, and at least one successful candidate was requesting to work part-time. A further successful candidate needed flexible working to take up the position. In summary, she believed that only two of the successful candidates did not have a specific request or need for an adjustment to the contracted hours or work. The candidates were advised by Ms Povey to seek Occupational Health input because the respondent had numerous queries and requests for part-time or flexible working and Ms Povey wanted to prioritise those with a disability or health need. This mirrored the advice and information the Tribunal found had been given to the claimant at her 121 with Ms Povey at the outset of the consultation process.12.35 When asked about Ms Willis's influence over the process, Ms Povey was clear that Ms Willis had no involvement in the management of change process, being interviewed herself and going through the process as a candidate. Ms Willis was ultimately appointed to the Band 8a position as Centre Manager.12.36 Ms Povey was particularly clear to point out that qualified mental health nurses of the claimant's skills and experience were valued and that it was in the interests of herself and the organisation to retain those skills if possible. She denied, when it was put to her, that she was pleased to see the claimant go. The Tribunal found Ms Povey to be a credible witness and her evidence reliable.12.37 On 6 September 2019 Ms Povey sent an email to the claimant and one of the other unsuccessful Band 7 candidates drawing their attention to a fixed term six month Band 7 ward manager post on ward H at Harplands Hospital (page 292).12.38 A second email from Ms Povey the same day (page 292) identified a vacant ward manager post at Band 7 on the EMU (Edward Meyer Unit) which was an alcohol or drugs dependency ward. The claimant said she was interested in the role on EMU and later confirmed to Ms Povey that she was available to discuss the potential position and her interview feedback.12.39 After the Band 7 interviews Ms Povey telephoned the candidates to advise them of the outcome. This included the claimant. She explained that the claimant had not been successful and said she would give feedback on the interview in a meeting. Before the meeting could be arranged, on 10 September 2019 the claimant bumped into Ms Povey in the corridor and a conversation began which moved into a side room. The claimant was very unhappy about the interview outcome and Ms Povey explained to her some of the reasons why her answers in the interview had not been what the team were looking for. The claimant talked about handing her notice in but Ms Povey told her to think about it very carefully. Ms Povey told the Tribunal that she was worried that the claimant was making a rash decision to resign in response to her disappointment about the Band 7 recruitment process. Ms Povey did not want to lose any staff in the management of change process. There were enough jobs for everyone. Ms Povey said there were Band 6 posts available that the claimant could slot into one without interview but the Tribunal found that the claimant made it very clear she was not interested in taking a Band 6 post, even with pay protection, but wanted to be appointed to a Band 7 position. Her preferred option therefore was to go for the alternative Band 7 roles.12.40 At about this time, after the interview process, in discussion with colleagues the claimant realised that, had she not applied for a Band 7 position and had been offered and accepted a Band 6 position as an alternative, she would have been placed in pay protection as set out in paragraph 7.4 of the management of change consultation paper. The claimant was confident of being appointed to one of the Band 7 positions. She pointed out to the Tribunal that, not only was she an experienced practitioner, but she had a Masters degree and was better qualified than many of her colleagues. The Tribunal found that it was only after the claimant had suffered the significant disappointment and (as she saw it) humiliation of failing to secure a Band 7 role that the idea that she could have avoided all that, chosen a Band 6 and remained on the same pay for a period of time seemed attractive.12.41 The claimant chose not to await the outcome of the redundancy process and focused instead on pursuing opportunities outside the organisation. She could not understand how she could have performed so poorly in the interview and, recalling the words of her RCN representative about the process being prejudged, she wrote a letter of resignation the same day and left it on Ms Povey’s desk. It stated simply ‘Dear Josie, I am writing to inform you that I have made a decision to terminate my contract with Combined Healthcare with immediate effect. Following a discussion with the HR department, my period of notice is eight weeks. Kindest regards Elizabeth Greenwood’.12.42 On 23 September 2019 the claimant was sent formal confirmation of the outcome of the interview process (page 299). She was confirmed as being at risk of redundancy and advised that suitable alternative employment would not be sought for her in light of her resignation. Her last day of employment was confirmed as being 3 November 2019. The claimant was still given a right of appeal against the decision not to appoint her to a band 7 role but she did not exercise this right, telling the Tribunal that she hadn’t got the “strength or energy” to do so and just needed to find a new job.12.43 Approximately 5 weeks later, on 18 October 2019, the claimant had second thoughts about her resignation. She telephoned Ms Povey to ask if she could retract her resignation. Ms Povey advised her that it was too late to do so because the other vacant jobs in the new structure were already being advertised. The claimant was invited by Ms Povey to apply for those roles nevertheless.12.44 This conversation was followed up by the claimant with a letter to Ms Povey dated 21 October 2019 (page 300). The claimant referred in this letter to the “extremely difficult decision to resign” and said she had been trying to “improve [her] situation and advance in [her] career”. The claimant described it as being on reflection “an impulsive emotional response to the management of change process and decision”.12.45 On 8 November 2019 Ms Povey confirmed in writing to the claimant that it was not possible for her to retract her resignation as the role from which she resigned was no longer available (page 301). Ms Povey referred to the fact that she had counselled the claimant to take some time to consider the matter before making a final decision at the time and further that all the posts in the new structure were out to advertisement, with interested parties intending to apply. Ms Povey told the Tribunal that there were some internal candidates, including some Band 5s who had already expressed an interest in those posts. In the circumstances, Ms Povey did not consider it that it would have been fair to allow the claimant to retract her resignation at such a late stage and be slotted into a Band 6 post that others had banked on being able to apply for.
The law
[13]The relevant law is to be found in the following sections of the Equality Act 2010:[15]Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. …..[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …..[21]Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) … SCHEDULE 8, PART 3 Lack of knowledge of disability 20 (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) … (b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) …. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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. 14. Both Counsel cited caselaw in their closing submissions which was uncontroversial and with which opposing Counsel agreed. The Tribunal accepted the legal principles put forward from those cases. The directly relevant ones are set out below for ease of reference. 15. Knowledge in reasonable adjustments cases In Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10/DM Underhill P stated “an employer is under no duty under section 4A unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that he or she is disadvantaged by the disability in the way set out at in section 4A(1). As Lady Smith points out [in Alam], element (2) will not come into play if the employer does not know element (1).' The same approach applies under EqA 2010. 16. Reasonableness of adjustments Adjustments which do not alleviate the substantial disadvantage are not reasonable (e.g. Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664, EAT, Elias P). If an adjustment is not going to cure or limit the substantial disadvantage at which the disabled person is placed, it cannot be reasonable under the terms of the Act to make it (Home Office v Collins [2005] EWCA 598). The extent to which making the adjustment would prevent the disadvantage created involves an objective test (Royal Bank of Scotland v Ashton UKEAT 0306/10). In Lincolnshire Police v Weaver [2008] All ER (D) 291 (Mar) the EAT held that it is proper to examine the reasonableness of adjustments not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer. 17. Time limits The Tribunal considered with Counsel when time began to run as a matter of fact and law in relation to each of the claims for failure to make reasonable adjustments. There was agreement on this issue. Applying section 123(4) EqA and considering the caselaw, including Kingston Upon Hull City Council v Matuszowicz [2009] EWCA Civ 22 and Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, the parties agreed that the time limit began to run from the claimant’s return to work on 19 June 2018 in relation to the “driving adjustment” and in August 2019 for the “hours adjustment” when the claimant says she was pressured into agreeing to return to her contractual hours of 30 per week. 18. The Tribunal’s discretion to extend time if it considers it just and equitable to do so must be exercised carefully having fully considered the balance of hardship between the parties. The respondent’s Counsel put forward the applicable principles as follows and these were accepted by Miss Hodgkin. There is no presumption that Tribunals should extend time; the claimant must persuade the Tribunal that it is just and equitable to do so: Robertson v Bexley Community Centre, [2003] IRLR 434. Furthermore, the remedy of Employment Tribunal proceedings is considered to be sufficiently well known that ignorance of such recourse will not normally be accepted as an excuse for non-compliance with any time limit (Partnership Ltd v Fraine UKAEAT/0=520/10, John Lewis Partnership v Charmaine UKEAT/0079/11 and Walls Meat Co Ltd v Khan [1979] ICR 52). The statutory time limits should be sufficient for the claimant to investigate her options promptly and issue proceedings within the necessary 3- month period. 19. It can be a useful exercise to consider the factors set out in section 33 Limitation Act 1980 in considering the exercise of discretion in relation to time limits: the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the respondent has cooperated with any requests for information, the promptness with which the claimant acted once she knew of the facts giving rise to the claim; and the steps taken by the claimant to obtain appropriate professional advice once she knew of the possibility of taking action, although this list should not be applied slavishly (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA, Civ 27). 20. Applying this law to the facts that the Tribunal found, the Tribunal came to the following conclusions, taking each claim in turn, and again on a unanimous basis. Conclusions Time limits 21. The Tribunal asked itself the question posed in the list of issues (para 41, Order of Employment Judge Findlay, 27 October 2020, page 56) : “Were the claims of failure to make reasonable adjustments regarding hours of work/extent of driving required made within a further period that the Tribunal thinks is just and equitable?”
Conclusions
[22]The claimant told the Tribunal that she knew that her employer had a duty to make reasonable adjustments for her because of her disability when she returned to work in June 2018 but she did not know that she could bring a tribunal claim. She was being advised by the RCN but she felt that they let her down so she cancelled her membership around the time she handed in her notice. The claimant said she took advice from Stafford Citizen’s Advice Bureau (CAB) during her notice period and was referred to David Norris at Rugeley CAB but had to wait several weeks to see him. He helped her to complete her Tribunal claim form. The claimant made it clear in her evidence that she did not raise things at the time because she did not want to appear to be a “moaner” or make herself unpopular with her colleagues. She “just managed shift by shift” and did not tell the respondent that she needed to be restricted to visiting patients closer to the office.[23]The Tribunal considered the question of time limits separately for each adjustment claim. In relation to the “driving adjustment” claim the Tribunal noted that the claim was over a year out of time. There was limited explanation from the claimant as to why she had not raised the matter with the respondent at the time, or at any time during the 17 months of her employment after it was alleged the duty to make this adjustment arose. During this time the claimant was assessed by Occupational Health many times and had supervision sessions with her line manager. The issue of knowledge was engaged in relation to this claim – namely whether the respondent knew, or could reasonably have known, that (to paraphrase) the claimant was substantially adversely affected by the need to drive to certain locations. The tribunal noted that any evidence about this issue was up to 3 years’ old by the time of the hearing, which could well affect its cogency from both parties’ point of view. There was no evidence that the respondent had failed to cooperate in the claimant’s investigation of the claim or that the claimant had dragged her feet in bringing the claim once she knew of it. The claimant did not seek professional advice about her legal options until she had failed to be appointed to the Band 7 role and resigned. It was clear to the Tribunal that this was the claimant’s catalyst for action. Weighing up all these circumstances, the Tribunal was not satisfied that it would be just and equitable to permit the claim of reasonable adjustments (driving) to proceed.[25]For the sake of completeness, the Tribunal considered what the position would have been had it found that the claim could proceed out of time. The Tribunal concluded that it would have dismissed the claim. The claimant’s own evidence was simply that this was not an adjustment that was feasible in the role that she was in. In those circumstances the Tribunal could not be satisfied that it was a reasonable adjustment. Furthermore, despite the respondent asking Occupational Health and the claimant for guidance on necessary adjustments more than once, the suggestion that the claimant’s work duties should have been altered so that she did not travel to visit clients who lived more than 20-30 minutes from the office, was not raised. The requested adjustment was restricted to permitting the claimant to stop and stretch/move every 20-30 minutes whether she was in the office or driving. The claimant’s own evidence was that the respondent was happy for her to do this.[26]Turning to the hours adjustment claim, the Tribunal concluded that it would be just and equitable for this claim to be permitted to proceed. The issue of hours was under discussion between the parties on 8 August 2019 and the claimant had agreed to increase her hours back to her contracted hours of 30 with effect from 14 October 2019 (p264). Mr Cooksey for the respondent accepted that time could be said to run from this date, 14 October 2019, when, if there was the PCP described as the “expectation that anyone working in a band 7 role should work at least 30 hours per week”, as the claimant alleged, it could be said to have been applied to the claimant and the failure to provide a reasonable adjustment committed. As early conciliation commenced on 28 February 2020, this claim was therefore 14 days out of time. The Tribunal weighed up the same factors set out above and concluded that, in this instance, the claimant had provided some explanation for the delay as she had explained to the Tribunal that she was suffering an exacerbation of her anxiety and depression at this time and was upset and frustrated by her failure to be appointed to a band 7 role in the new structure. The determination of this issue was more straightforward evidentially than the driving adjustments claim and the cogency of the evidence was unlikely to be adversely affected by the delay of 14 days.[27]The Tribunal went on therefore to consider the merits of this claim, asking itself the question, “did the respondent have a provision, criterion or practice of expecting anyone working in a band 7 role should work at least 30 hours per week?” The Tribunal concluded that no such practice existed. The claimant was permitted to work 22.5 hours per week for a number of months as a reasonable adjustment after returning to work from sickness absence, when she was in a Band 7 role. Further, the evidence of Ms Povey was that a number of those who were successful in the interviews for the Band 7 structure worked reduced and/or flexible hours. The Tribunal found no evidence that the claimant had been disadvantaged because for a period of time she worked fewer than 30 hours per week. If there was no such PCP, then there could be no disadvantage to the claimant from its application, substantial or otherwise. Therefore, the claim to reasonable adjustments in relation to reduced hours could not succeed.[28]The section 15 EqA claim of disability-related discrimination was then considered. The Tribunal first asked itself whether the respondent had treated the claimant unfavourably in any of the three ways she alleged (see paragraph 3 of EJ Findlay’s Order, p57). The Tribunal found that the claimant had been treated unfavourably by the respondent in failing to select her for a band 7 post in the new structure and by failing to permit her to retract her resignation. The Tribunal did not find that the claimant had been subject to unfavourable treatment by the alleged failure to inform the claimant during the re-organisation process that she could accept a band 6 post with pay protection without having to be interviewed for a band 7 role because paragraph 7.4 on page 184 and the email of 23 August 2019 (p271) provided this information. Furthermore, the claimant had a number of opportunities to ask or clarify whether this was the case during the consultation process. The Tribunal concluded that the claimant was focussed on being appointed to a Band 7 post and it was only later, after her difficult experience with the interview and outcome for that post, that her attention was attracted to the idea that she could have stayed on the same pay, avoided the interview and dropped to a Band 6 role. The claimant did not at any stage want a Band 6 post. Indeed, she resigned rather than accept one.[29]The respondent accepted that the claimant’s history of sickness absence and her need for reasonable adjustments arose in consequence of her disability. The next stage in its analysis was therefore for the Tribunal to ask whether the unfavourable treatment of not being appointed to a Band 7 post, and/or not being permitted to withdraw her resignation was because of either of those things. The Tribunal concluded in each case that it was not. The causal link was not made out for these reasons.[30]The Tribunal found that the claimant had a bad day and did not perform to the best of her ability at all in the interview for the Band 7 position. This was very unfortunate. It was clear to the Tribunal that she was capable of higher scores in that process and her disappointment was understandable. However, the Tribunal accepted the evidence of Ms Povey, supported by the documents, that this was a competency-based interview using pre-prepared questions which were asked of all candidates and marked against a clear scheme of desirable responses. There was no prejudice found, or which could be inferred, against the claimant because of her sickness absence or her need for adjustments by any member of the decision-making panel. There were successful candidates in the interview process with disabilities who had a likelihood of needing future time off as well as reduced hours and reasonable adjustments. The Tribunal did not find facts from which it could conclude that discrimination had occurred such as to shift the burden of proof to the respondent. Even if it had, the tribunal would have been satisfied that the respondent had discharged the relevant burden on the evidence. 29. The evidence in connection with the retraction of resignation was carefully reviewed by the Tribunal. The Tribunal was satisfied that Ms Povey was telling the truth when she said that she made her decision because she was concerned to be fair to those who had been awaiting the opportunity to apply for a Band 6 post, such as some existing Band 5 staff. There was a very considerable delay of 5 weeks between the claimant’s resignation and her request to retract it by which time the Band 6 posts had already been advertised. If Ms Povey had acceded to the claimant’s request, this would have resulted in the claimant being slotted into a Band 6 post, with pay protection at the level of Band 7, and others, who had not resigned their jobs with the respondent, having fewer opportunities to progress and obtain posts in the new structure. The decision was not motivated by the claimant’s sickness absence or need for adjustments. This was clear from the fact that Ms Povey explained that the claimant could apply for the Band 6 posts in any event. Again the Tribunal did not consider that the facts found resulted in a shift in the legal burden of proof to the respondent applying section 136 EqA, but the respondent’s evidence was sufficient to discharge the burden of proof if it had carried it.