Miss C Barron v Department for Work and Pensions: 1400341/2021

EMPLOYMENT TRIBUNALS

Case No 1400341/2021

Between

Miss C BarronClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Livesey

In person for claimant

Ms Williams (instructed by counsel) for respondent

Date 16 March 2022

JUDGMENT

The Claimant’s complaints of discrimination on the grounds of disability are dismissed. JUDGMENT having been sent to the parties on 30 March 2022 and written reasons having been requested in accordance with rule 62 (3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]Claim 1.1 By a Claim Form dated 10 January 2021, the Claimant brought complaints of discrimination on the grounds of disability.

[2]Evidence2.1 The Claimant gave evidence in support of her case and, on behalf of the Respondent, the Tribunal heard from the following witnesses; - Mrs Clark, a Fraud Investigator; - Mrs Marston, a Team Fraud Manager; - Mrs Cunningham, a Team Leader; - Mrs Taylor, an Executive Officer; - Mr Watson, Operational Lead at the Bristol Universal Credit Service Centre; - Mrs Wilson, Service Leader.

2.2 The following documents were produced to the Tribunal; - C1, the Claimant’s closing submissions; - R1, an agreed bundle of hearing documents; - R2, the Respondent’s closing submissions.

[3]Hearing3.1 With the parties’ agreement, the hearing was conducted with the Claimant and the Respondent’s counsel present in person, but with all of the Respondent’s witnesses giving evidence by video (CVP). The parties also consented to the Judge hearing the claim without members.

3.2 Putting questions in cross examination proved to be a challenge for the Claimant. She was given a great deal of time to arraign her questions and breaks in order to compose herself and order her thoughts.

[4]Issues4.1 The issues had been discussed, clarified and recorded before Employment Judge Midgley on 30 July 2021 and then confirmed by Employment Judge Matthews on 18 January 2022. They were revisited and confirmed with the parties at the start of the hearing.

4.2 The Claimant relied on both mental (anxiety and depression) and physical (hyperthyroidism and hypopituitarism) disabilities. The Respondent conceded all disabilities on 3 February 2022 in its amended Response and knowledge in respect of hypopituitarism from 24 February 2020 and in respect of depression and anxiety, from 6 May 2020.

4.3 The Claimant brought two allegations of discrimination arising from disability under s. 15, although, early on in her cross examination, she discontinued the first allegation set out in the Case Summary at paragraph 3.1.1. The Respondent continued to advance the defence of justification (paragraph 32 of the Amended Response). Three provisions, criteria and practices were relied upon for the purposes of complaints under s. 20.

4.4 Jurisdictional time points also remained in issue, although the Respondent’s position changed during the hearing (see the Conclusions below).

[5]Facts5.1 The following factual findings were made on a balance of probabilities in relation to the issues which fell to be determined. Any page references cited in these Reasons are to pages within the hearing bundle, R1, unless otherwise stated and have been provided in square brackets.

5.2 In general terms, during the Claimant’s evidence, she repeatedly said that she was unable to remember much of the evidence of the relevant events as they had occurred over two years earlier. There was a great deal of contemporaneous documents which provided a reliable account of the events where witnesses’ memories were less reliable.

5.3 The Respondent is the government department responsible for, amongst other things, the administration of state benefits. It has a team who administer Universal Credit claims which is based at Lodge House, Fishponds Road, Bristol.

5.4 The Claimant commenced work on 3 February 2020. Her probationary period was due to have lasted for six months until 3 August, as set out in the letter of 3 February 2020 in which she was told that she needed to meet acceptable standards of conduct, performance and attendance in order to pass [57]. The Respondent’s Probationary Policy was relevant in that regard [421-436].

5.5 The Claimant was employed as a Case Manager and her role was to manage a caseload of Universal Credit claimants. She was required to access the Respondent’s IT system for which she was provided with a unique pass card. The security and safe retention of her smartcard was a matter which the Respondent impressed upon its employees.

5.6 The Claimant’s line manager was Mrs Clark. Disability

5.7 Although admitted, it was necessary to examine the extent of the disabilities that the Claimant experienced and the disadvantages and problems that they caused her.

5.8 Following the loss of her job in 2008, the Claimant had suffered depression. She had always suffered from hypopituitarism, for which she took medication. Beyond that, there was very little in the Claimant’s evidence which touched upon her problems; she spoke of her anxiety in unfamiliar settings and when with people she did not know (paragraph 10 of the witness statement) and the fatigue which her hypopituitarism caused (paragraph 11). When she started work, she began to feel tired, which she stated could have been attributed to either condition (paragraph 45).

5.9 The Respondent became aware in April 2020 that she was feeling unwell. Two conditions were then identified; depression and anxiety and hypopituitarism and two Occupational Health (‘OH’) referrals were undertaken in May. The first one, which dealt with the Claimant’s mental health, spoke of her previous history and her loss of confidence [103-4]. The report concluded; “Cathy is fit to remain in work. There are no tasks that she can’t do but her work rate is likely to be reduced due to her current symptoms. Anxiety can make it difficult to concentrate and this is likely to impact on her ability to process new information. In my opinion Cathy would benefit from having a mentor/buddy to give her support whilst she consolidates her training. She would also benefit from an enhanced level of Management support until her emotional resilience has been restored. I would advise that a stress risk assessment is carried out so that her work related concerns can be addressed. I would also recommend that management consider undertaking a Wellness Recovery Action Plan (WRAP).”

5.10 The second report, which dealt with her hypopituitarism, focused upon her fatigue [105-6]; “Cathy is fit to be at work and carry out her substantive role. My advice is to carry out one-to-one meetings on a regular basis to enable Cathy to discuss her concerns and to provide ongoing support. Due to the increased levels of fatigue which can impact on concentration levels, could this be taken into consideration?”

5.11 A further OH assessment was carried out at the end of June which referred to the Claimant then experiencing high levels of stress which were “entirely workrelated” [192-3]. She had faced disciplinary issues concerning alleged mistakes in her work which had been increasing her stress but the report considered that she was still fit for work, assuming appropriate support was in place.

5.12 The final OH report was dated 26 August 2020 [287-8]. Again, it referred to the Claimant’s tiredness and the effect that she reported that it had upon her cognitive functioning and concentration. Heat was also an issue due to the combination of the weather and her condition, and the provision of a fan was recommended. Recommendations regarding reduced workload and pace were made. The Claimant’s probationary period

5.13 Having commenced work on 3 February, the Claimant was required to start her training, but she had a period of sickness absence between 10 and 21 February and her training could not start until 23 March when the next course commenced [60].

5.14 That initial period of absence resulted in a return to work meeting which was held on 23 February [62] at which the Claimant then discussed difficulties with her pituitary gland, hence the Respondent’s concession of knowledge from that date. An attendance management meeting was also held because her absence had triggered the first stage of the process. She received an initial attendance management warning, but that was later overturned on appeal ([63-4] and [82-3]).

5.15 The Claimant clearly found the training process difficult. In paragraph 48 of her witness statement, she referred to the difficulty that she experienced absorbing the amount of information that was given. Nevertheless, she did not complain at the time nor raise any issues about any difficulties that she was suffering. After the training was delivered, she moved to the ‘consolidation’ phase of her probationary period during which she was monitored by coaches (Mr Coyle and Mr Green) whilst working in a ‘live’ environment. There were a total of six employees who were being ‘consolidated’ at the same time.

5.16 Issues soon began to surface in relation to her work, as recorded in Mrs Clarke’s notes; she was upset about having a sense of being left out [66] and a plan was therefore made to physically integrate her better. It was said that she had been failing to listen carefully and complained of being lost and disorientated by the computer system [67]. On some occasions, she felt positive and thanked Mrs Clark for her support whereas, on others, she felt more negative and wanted greater support because she lacked confidence ([68] and [70]). She was advised to see her doctor, she was signposted to the Respondent’s Mental Health First Aider, Employee Assistance and PAM Assist. A Stress Risk Assessment and Well-being Plan were offered but declined ([74] and [87]).

5.17 On some occasions, it was clear that the Claimant’s frustration with her work affected others because she became disruptive and/or shouted [72]. The Claimant described her difficulties at that time as follows [87]; “It appears that my confidence crashed in the process of going from training into consolidation and this caused major anxiety which led me to think that I was useless and to believe I could not do this and I saw the others around me who appeared to be doing fine and having no problems…. Confidence is the issue here not necessarily stress.”

5.18 The coaches’ view of her progress at that point was poor; she was struggling with the most basic of operations, for example, opening tools on the computer like Internet Explorer or Outlook [89-93]. Nevertheless, there was good evidence of a positive, supportive and open work environment at that stage. The Claimant was certainly not complaining about any lack of support then.

5.19 Mrs Clark conducted the Claimant’s first probationary meeting on 30 April [361-3]. Areas for improvement were noted in relation to her professionalism and IT skills. It was clear that the Claimant did not react well; she upset and unsettled her colleagues, as Mr Coyle reported [99].

5.20 Following the Claimant’s OH referral in early May referred to above, she was supplied with a mentor, Mr Maynard, who had been agreed with her and her trade union representative. They met initially on 15 May to discuss their expectations [121]. A Stress Management Plan was also put together [104- 114] with significant input from the union representative [115-6]. The Claimant’s hours were also changed at her request [131]. A Learning Needs Analysis tool was provided to her [135-6] which she did not complete.

5.21 On 13 May, Mr Green reported that the Claimant’s conduct had improved a little but that she continued to struggle with the technological aspects of her role [117-9]. He also reported that she tended to rush into things and experienced bouts of frustration and anger when she could not achieve what she wanted [123]. He further said this [14]; “From the past 2 weeks I have spent with Cathy as her mentor I have found that Cathy is quite happy to sit at her desk and work through her dashboard without interacting with anyone which has been a little concerning as I feel she should have been asking lots of questions as she had requested the support… Whilst I try to explain to her she is always talking over me..”

5.22 On 20 and 22 May 2020, the Claimant made telephone calls to benefits claimants without asking the required security questions.

5.23 Only 21 May, she was found to have left her smartcard in a computer overnight. Mrs Clark emailed her about the incident and stressed the importance of her not doing so [134]. She arranged to meet her on 28 May but, at that meeting, the Claimant was aggressive and appeared to take no responsibility for her actions; she alleged that it had happened because she had not been properly supervised [142-3]. The situation deteriorated significantly and, despite Mrs Clark attempting to speak to her further, she found the Claimant to be more aggressive, as recorded in Mrs Clarke’s notes and as also witnessed by Ms Kay Clark [173]. The Claimant then went off sick again.

5.24 Mrs Clark held a return to work meeting was held on 17 June at which the Claimant was accompanied by her union representative [160-1]. A further OH referral was recommended and accepted, the results of which have been dealt with above. A subsequent attendance management hearing did not result in any further sanction [206-8].

5.25 On 18 June, a Workplace Adjustment Passport came into being [175-180] which contained a number of proposed adjustments for the Claimant including, by way of example, a proposal to have her undertake more repetitive work to improve her confidence. As a result, she was moved to payments work for which she received continuing mentor support with Mr Maynard and Ms Shields [162-172], which she had requested [179].

5.26 On 22 June, the Claimant left her smartcard in another computer overnight, which was found and given to Mrs Clark [234].

5.27 A meeting was then convened on 25 June to address the two security concerns which had arisen from the events of 20 and 22 May (the telephone calls with claimants when the required security questions had not been asked, for which there were transcripts [127] and [137]) and 22 June (the Claimant’s smartcard). Mrs Taylor chaired the meeting as an investigator and the Claimant’s union representative, Ms Stevens, was present to accompany her [186-190].

5.28 The Claimant explained the telephony mistakes on the basis that she was new, stressed and had frozen. She said that she felt out of her depth [187]. She explained the smartcard breach on the basis that she was anxious and had not been functioning correctly [189]. A number of other conduct related matters were discussed; incidents on 23 April when she had shouted at Mr Green [100-1] and on 26 April when she had been angry with Ms Day [139]. All of the matters which were to have been covered, however, were not discussed because the Claimant became distressed. The balance of the meeting was therefore postponed until 16 July.

5.29 On 1 July, the Claimant raised a grievance against Mrs Clark; she complained that she had not accounted for the stress that she was under [195-203]. Mrs Marston was tasked with dealing with it and Mrs Clark was therefore removed as the Claimant’s line manager. Mr Munro and Ms Shepherd took over in the short term. One of Mr Munro’s first tasks was liaising with Remploy, a wellknown government owned organisation which facilitates and supports the employment of disabled people. It was not clear who contacted Remploy, but they certainly became actively involved in supporting the Claimant.

5.30 On 10 July, the Claimant’s probationary period was extended by three months to 2 November by Mr Munro [214]. At that point, she had one to one mentoring which she was happy with, provided by Ms Zainab Mir and Ms Tanya Poucher. Indeed, by early July, the Claimant was content that the Respondent had put proper, reasonable and supportive adjustments into place which remained until her dismissal (see paragraph 41 of her closing submissions, C1).

5.31 The meeting which had started on 25 June, resumed on 16 July as anticipated [219-222]. Further incidents which had occurred on 26 and 28 May were covered and Mrs Taylor subsequently prepared her report on all matters [280- 286]; she concluded that, in respect of the two security breaches regarding the telephone calls and the smartcard and in respect of for further behavioural/conduct issues, there was a conduct case to answer.

5.32 Meanwhile, the grievance process was advancing. Mrs Marston conducted a grievance hearing with the Claimant on 12 August [240-7] and she then interviewed Mrs Clark the following day [262-8].

5.33 On 14 August, the Claimant’s second probationary review meeting was conducted with Ms Shepherd [364-7]. Her performance and conduct were both still seen to have been below par. She accepted that, although there had been some improvement, she still needed a lot of help. A Performance Action and Learning Plan (‘PAL’) was to have been implemented as a more structured form of support [365]. Following the meeting, Ms Shepherd reviewed the Adjustment Passport and yet further measures were added [270-6].

5.34 On 18 August, the disciplinary hearing took place in relation to the matters referred to above. The Claimant was again supported by her union representative [255-261]. She asserted that her actions and conduct had arisen as a result of stress. Mrs Taylor took time to consider her decision and subsequently wrote to her on 20 August; she was issued with a written warning, which she did not appeal [277-9].

5.35 On 27 August, the Claimant’s grievance was addressed. It was not upheld [299-301] (see Mrs Marston’s report [289-298]). The Claimant appealed [314- 5], which was dealt with by Ms Bignall and also dismissed ([333-8] and [341- 3]).

5.36 At that point, Mrs Cunningham took over as the Claimant’s line manager, following Ms Shepherd’s promotion. At around that time as well, Ms Rivers replaced Ms Mir as the Claimant’s mentor.

5.37 The PAL commenced on 14 September. It contained a set of performance targets against which the Claimant was measured with her agreement, albeit that there had been some initial pushback ([304] and [371]).

5.38 The first PAL review meeting then took place on 21 September when Mrs Cunningham noted progress in some areas but that further work was needed in others [371-4]. The second meeting took place on 28 September and similar findings were made [374-6]. The Claimant accepted in cross examination that her performance had been fairly and reasonably recorded in the notes of those first two meetings.

5.39 Mrs Cunningham did not consider that the Claimant was making the improvement that might have been expected for someone in receipt of oneto-one support and, more generally, her work continued to be the source of concern; communications with benefits claimants, the failure to use the templates which her mentor had devised for her and her behaviour when she became frustrated (see Mrs Cunningham’s witness statement, paragraph 8 to 13).

5.40 The Claimant’s third and final probation meeting took place on 12 October with Mrs Cunningham [378-385]. Her performance and conduct was still considered to have been substandard and her PAL had not been met; “A common theme throughout all of Cathy’s mentors and feedback meetings with her line managers is her issues communicating with claimants by phone or by journal messages….Cathy was reluctant to make calls to claimants and even made inappropriate comments about what her conduct might be like with difficult conversations with claimants….In regards to Journal messages there are multiple examples of feedback where the journal messages have been deemed inappropriate.” [382]. That was not just Mrs Cunningham’s view. She received evidence for a number of others in similar terms (Mr Munro [330-2] and Mr Cunningham [329]). In cross examination, the Claimant broadly accepted what the notes said, but she did not necessarily accept the Respondent’s view. For example, she did not accept the interpretation of the journal messages as having been blunt, even though she accepted the words used [375].

5.41 The Claimant’s position was then reviewed by Mr Watson, an independent second pair of eyes. He held a meeting on 29 October with the Claimant and her union representative [348-354]. He explained that he agreed with Mrs Cunningham’s views and that the Claimant’s failed probation therefore led to her dismissal. She was given an opportunity to explain why she believed her employment ought to have continued and she argued that the assessment of her performance ought not to have started until July, when she considered that the required reasonable adjustments had been put in place. The Claimant’s dismissal letter was dated 3 November [344-7]. Mr Watson stated that it was rare for an employee to fail their probation.

5.42 The Claimant appealed on 12 November [388-394]. Mrs Wilson was appointed to deal with the appeal and she reviewed the relevant documentation before conducting the appeal hearing on 4 December [395-408]. Having done so and having heard the Claimant ask for an extension to her probationary period, Mrs Wilson considered the evidence and eventually dismissed her appeal by letter dated 11 December [409-411]. She considered that the Claimant had been fully supported during her employment and extended probationary period.

[6]Relevant law6.1 When considering a complaint under s. 15 of the Act, I had to consider whether the employee was “treated unfavourably because of something arising in consequence of her disability”. There needed to have been, first, ‘something’ which arose in consequence of the disability, which was an objective question and, secondly, unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-v-Weerasinghe

UKEAT/0397/14

). That second question was subjective, in the sense that it required me to examine the employer’s mind in order to establish whether the treatment had been by reason of its attitude or reaction to the ‘something’ (Dunn-v-Secretary of State for Justice

[2019] IRLR 298

, CA). Although an employer must have had knowledge (actual or imputed) of the disability, there was no requirement for it to have been aware that the relevant ‘something’ had arisen from the disability (City of York-v-Grosset 2018] IRLR 746, CA).

6.2 Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might have been several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police

UKEAT/0057/15

and iForce Ltd-v-Wood

UKEAT/0167/18/DA

). It need not have been the only reason for the treatment; it must have been a significant cause (Pnaiser-v-NHS England

[2016] IRLR 170

), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-v-University of Edinburgh

UKEATS/0014/17

and Scott-v-Kenton Schools Academy Trust

UKEAT/0031/19/DA

). In IPC Mediav-Millar

[2013] IRLR 707

, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability. No comparator was needed.

6.3 If the Claimant was able to demonstrate the essential elements of the test within s. 15 (1)(a), the Respondent nevertheless had a defence if it could show that the treatment was “a proportionate means of achieving a legitimate aim”. (s. 15 (1)(b)).

6.4 Proportionality in this context meant ‘reasonably necessary and appropriate’ and the issue required an objective balance to be struck between the measure that was taken and the needs of a respondent based upon an analysis of its working practices and wider business considerations (per Pill LJ in Hensmanv-MoD

UKEAT/0067/14/DM

at paragraphs 42-3). Just because a different, less discriminatory measure might have been adopted which may have achieved the same aim, it did not necessarily render it impossible to justify the step that was taken, but it was factor to have been considered (Homer-v-West Yorkshire Police

[2012] IRLR 601

at paragraph 25 and Kapenova-vDepartment of Health

[2014] ICR 884

, EAT). The test was not as loose, however, as the range of reasonable responses test (Scott-v-Kenton Academy Schools

UKEAT/0031/19/DA

, paragraph 58).

6.5 It was important to remember that justification had to be considered against the PCP’s impact upon the business generally, not just the individual employee (City of Oxford Bus Services Ltd-v-Harvey

UKEAT/0171/18/JOJ

) and that the section required a Tribunal to make its own ‘critical evaluation’ of the evidence against the statutory test.

6.6 In relation to the claims under s. 20, I bore in mind the guidance in the case of Environment Agency v. Rowan

[2008] IRLR 20

in relation to the correct manner to approach the section.

6.7 First, I had to identify whether and to what extent the Respondent had applied provisions, criteria and/or a practices (the ‘PCPs’), which was accepted in this case. Next, the Claimant needed to demonstrate she was caused a substantial disadvantage when compared with those not disabled. It was not sufficient that the disadvantage was merely some disadvantage when viewed generally. It needed to have been one which was substantial when viewed in comparison with persons who were not disabled and that test was an objective one (Copal Castings-v-Hinton

[2005] UKEAT 0903/04

and Sheikholeslami-v-University of Edinburgh [2018] 1090, EAT).

6.8 Further, in terms of the adjustments themselves, it was necessary for them to have been both reasonable and to have operated so as to have avoided the disadvantage. There did not have to have been a certainty that the disadvantage would have been removed or alleviated by the adjustment. A real prospect that it would have had that effect would have been sufficient (Romec-v-Rudham

UKEAT/0067/07

and Leeds Teaching Hospital NHS Trustv-Foster [2011] EqLR 1075). It was not generally considered reasonable to have required an employer to have made an adjustment which might have caused there to have been a drop in standards of competence (Hart-v-Chief Constable of Derbyshire

UKEAT/0403/07/ZT

6.9 I referred to the statutory Code of Practice and, specifically, paragraph 6 relating to the duty under ss. 20 and 21.

[7]Conclusions Discrimination arising from disability7.1 The sole remaining claim under s. 15 was the Claimant’s dismissal (paragraph 3.1.2 of the Case Summary [43]). The Claimant’s case was that she was dismissed as a result of mistakes which were features and/or consequences of her disability.

7.2 The first question therefore was whether that was something which arose in consequence of her disability. In relation to her mislaying the smartcard and/or failing to ask benefit claimants the correct security questions, was it forgetfulness potentially caused by stress? In relation to her conduct and interaction with others, was it irritability and aggression caused by her condition?

7.3 The evidence in support of that issue was tenuous in my judgment. There was some supporting evidence in support in relation to the smartcard issue within the Claimant’s witness statement (paragraphs 97-8). In relation to the phone calls, other than saying that outgoing calls caused her anxiety and that she had little support (paragraphs 102, 103 and 105-6), there was very little to indicate that her errors arose from her disability and/or were a feature of it. In relation to her conduct and behaviour in more general terms, there was nothing in her evidence which explained it on the basis of it having been a feature of her condition. The four OH reports referred to a loss of confidence, anxiety, stress, frustration and a drop in concentration, but they did not address the behavioural issues and they all said that she was fit for work.

7.4 But that evidence only really addressed half of the story. The Claimant was not dismissed because of the warning that she had received in relation to those conduct matters. She was dismissed because she failed to meet the required standards of performance at the end of an extended probationary period. In other words, because she could not do the job well enough. Did that failure arise from her disability?

7.5 That link was even more tenuous. The Claimant blamed poor training. She blamed issues with her first mentor, Mr Maynard. She asserted that she had not been given enough time to demonstrate that she was good enough considering her part-time hours. I could not find, on the evidence, that her inability to prove herself in the role (a failure which she herself disputed) was significantly caused by the effects of her disability. Although I recognised that it had probably had some part to play, I accepted the Respondent’s arguments, particularly those at paragraphs 15 and 17 of Ms Williams’ closing submissions, R2.

7.6 However, even if my conclusion on that issue was wrong and the Claimant was in fact dismissed for something arising from her disability, was that dismissal justified?

7.7 The Claimant had had a substantial amount of management input and support. Her probationary period had been extended by three months, the maximum suggested under the Respondent’s policy (paragraph 7.1 [434]). She had worked with what even she deemed to have been a set of reasonable adjustments for four months between July and November, albeit that the Respondent considered that that had been longer, yet her performance and conduct was still not satisfactory.

7.8 The Respondent’s legitimate aim was the employment of employees who met standards of conduct and performance (paragraph 32 of the Response [53]). That was a legitimate and reasonable aspiration. The Claimant’s dismissal at that point was, in my judgment, a reasonable and proportionate means of achieving the aim. Even if her disability was the cause of her inability to meet acceptable performance standards, the employer cannot have been expected to retain someone who was not able to demonstrate that they could do the job satisfactorily because of their disability over such a period of time. Reasonable adjustments

7.9 A summary of the timeline was worthwhile before addressing the complaints;7.9.1 The Claimant had started consolidating her training on 16 April. Two consolidators worked in a room with her with just five others. She had daily meetings with Mrs Clark and her desk was moved so that she was closer to the consolidators. She was signposted to the Mental Health First Aider and to Employee Assistance;

7.9.2 In May, OH pointed her to PAM Assist, an opportunity that she took. A mentor was also recommended and Mr Maynard started in mid-May [121-5]. A Stress Risk Assessment was undertaken at that time with her union representative too [115]. The Claimant had declined to complete one sooner [87]. Her hours were also changed at her request, from 36 to 24/wk [131] and a Learning Needs Analysis was sent to her for completion, which was not returned;

7.9.3 On 18 June, a Workplace Adjustment Passport was put in place [175- 180]. She was also moved to undertake payments work, which was more repetitive and therefore easier for her. Mr Maynard’s mentoring continued, but he was swapped to Ms Shields at her request [179];

7.9.4 In July, Mr Munro liaised with Remploy as a further source of support. Her probation period was extended which therefore gave her greater time to achieve the necessary standards of performance, which is what she also asked for at the subsequent appeal hearing. Throughout July and August, one-to-one mentoring was provided by Ms Poucher and Ms Mir;

7.9.5 In August, the Adjustment Passport was reviewed by Ms Shepherd and further adjustments were added (regarding breaks and reduced trigger dates [270-6]);

7.9.6 In September, the PAL was started as a more structured form of support, which the Claimant had agreed [304-313]. Ms Rivers replaced Ms Mir and the Claimant accepted that she continued to receive feedback on a work.

7.10 The Claimant accepted in cross examination that all of the adjustments remained in place until the end of her employment. As stated previously, she had argued at the dismissal hearing that the assessment of her performance ought to have been conducted from July when she considered that proper adjustments had been put in place.

7.11 The three PCPs, consequent disadvantages and proposed adjustments contended for were set out within the Case Summary paragraph 4 [43].

7.12 The first (paragraph

4.2.1 ) related to the Disciplinary/Conduct Policy which, although never produced in evidence, was accepted to have been a PCP (R2, paragraph 23). The necessary substantial disadvantage which was allegedly caused was, however, not made out. The Claimant did not demonstrate that her disability caused her to have been placed at a substantial disadvantage when compared to a non-disabled employee because of that PCP (see the findings in respect of the s. 15 claim above).

7.13 The second PCP relied upon was poorly worded in the Case Summary at paragraph

4.2.2 but the Respondent accepted that what the Claimant was really complaining about was the shortness of the three-week initial training course which was accepted as a PCP.

7.14 The OH reports did support some disadvantage having been sustained by the Claimant during training (for example, her anxiety impacting upon her ability to process new information). The evidence did not, however, support the proposition that that disadvantage had been substantial within the meaning of the section.

7.15 Nevertheless, even if the Claimant had been capable of demonstrating the necessary disadvantage, what of the proposed adjustments? They were examined in turn (4.5.2 (a)-(c) [44]); (a) The Claimant wanted three months for induction training. Why that period? She did not cross-examine any of the Respondent’s witnesses on the basis that her induction training itself ought to have been longer. She did suggest that the support provided during the consolidation period had not been appropriate at the outset, but everything was in place to her satisfaction by July and she was not dismissed until November. In other words, she had more than three months of that support without showing the required progress. There was insufficient evidence that the adjustment would have alleviated or removed any substantial disadvantage; (b & c) Again, these issues were simply not explored during the evidence. The Claimant did not suggest that those training her failed to break the processes down into sufficient detail in order for her to understand them. As to one-to-one support during the consolidation period, Mr Maynard, Ms Poucher, Ms Mir, Ms Shields and Ms Rivers all provided that help.

7.16 As to the final complaint based upon the PCP in paragraph

4.2.3 [43], the Respondent accepted that its performance standards constituted a PCP but an examination of the substantial disadvantage raised the same question; had the Claimant demonstrated that those standards placed her at a substantial disadvantage when compared with others who were not disabled, because of her disability? On the basis of the evidence, that was doubtful. It was not, of course, just her performance which caused her dismissal, it was her conduct too. Further, the adjustment contended for was the provision of one-to-one support at the conclusion of her training (paragraph 4.5.3 [44]), yet that was provided, as set out above.

7.17 Finally, in relation to the fan (paragraph 4.8 [44]), OH advised that a feature of the Claimant’s physical condition was overheating [287]. The Claimant was immediately supplied with a fan. She had the fan when she joined Mrs Cunningham’s team, because she had remembered it. She also said that the Claimant was placed near a window, which went unchallenged when crossexamined. Therefore, once the Respondent was aware of that substantial disadvantage, it provided the adjustment recommended by OH and additional ventilation. This issue was not covered in the Claimant’s witness statement nor in her closing submissions, C1.

7.18 The Claimant appeared to raise a further adjustments claim and/or PCP in her closing submissions, C1, at paragraph 50; the probationary policy and its alleged discriminatory effect upon her as a disabled person.

7.19 The Respondent called no evidence on it because it had not been raised as an issue before. The Claimant asked no questions about it either. I asked one question of Mr Watson about the Policy who indicated that it was not his remit to explain the rationale for such things. In short, this was not an issue in the case but, even if it had been, given that one extension to the Claimant’s probationary period had not resolved her underperformance, it seemed unlikely that a further one would probably have done so. Jurisdiction; time

7.20 The Respondent had argued that all of the complaints concerning events prior to July were out of time (see paragraph 1 of the Case Summary [42]). It did not, however, argue against an extension of time on the grounds of justness and equitability under s.123, which seemed a generous surprising concession considering the level of support provided to the Claimant during the internal processes by her union and the extent to which her own evidence had clearly been weakened by the passage of time. Outcome

7.21 For those reasons, the Claimant’s complaints failed and were dismissed.