Mrs P Whitburn v Royal Devon and Exeter NHS Foundation Trust: 1400422/2014
EMPLOYMENT TRIBUNALS
Case No 1400422/2014
Between
Mrs P WhitburnClaimantRoyal Devon and Exeter NHS Foundation TrustRespondent
Before
Employment Judge HousegoIn person for claimantDate 14 June 2017
JUDGMENT
[1]The Claimant was unfairly constructively dismissed by the Respondent.[2]The Respondent is ordered to pay to the Claimant a basic award of £2723.15.[3]No compensatory award is made.[4]The Respondent failed to provide itemised payslips for every pay period when the Claimant was employed by the Respondent.[5]The other claims of the Claimant are dismissed.
REASONS
[1]These are set out in Annex 1.
The law
[2]The claim for constructive dismissal is admitted, and so there is no need to set out the relevant law. There is also a claim alleging discrimination because of the Claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges direct disability discrimination, indirect disability discrimination, discrimination arising from a disability, failure by the Respondent to comply with its duty to make adjustments, harassment, and victimisation.[3]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person (P) has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person.[4]As for the claim for direct disability discrimination, under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[5]As for the claim for indirect disability discrimination, under section 19(1) of the EqA a person(a) (A) discriminates against another(b) (B) if A applies to B a provision criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. A provision criterion or practice is discriminatory in these circumstances if A applies, or would apply, it to persons with whom B does not share the characteristic; it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; it puts, or would put, B at that disadvantage; and A cannot show it to be a proportionate means of achieving a legitimate aim.[6]As for the claim for discrimination arising from disability, under section 15(1) of the EqA a person(a) (A) discriminates against a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This 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.[7]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first is relevant in this case, namely that 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, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[8]The definition of harassment is found in section 26 of the EqA. A person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment for B.[9]The definition of victimisation is found in section 27 of the EqA. A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act. The following are all examples of a protected act, namely bringing proceedings under the EqA; giving evidence or information in connection with proceedings under the EqA; doing any other thing for the purposes of or in connection with the EqA; and making an allegation (whether or not express) that A or another person has contravened the EqA. Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[10]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that 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. However this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[11]The remedies available to the tribunal are to be found in section 124 of the EqA. The tribunal may make a declaration as to the rights of the complainant and the Respondent in relation to the matters to which the proceedings relate; may order the Respondent to pay compensation to the complainant (on a tortious measure, including injury to feelings); and make an appropriate recommendation. In addition the tribunal may also award interest on any award pursuant to section 139 of the EqA.[12]The interest payable on discrimination awards is to be calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 ("the Interest Regulations"). Under regulation 2 the tribunal shall consider whether to award interest, and if it chooses to do so then under regulation 3 the interest is to be calculated as simple interest accruing from day to day. Under regulation 6 the interest on an award for injury to feelings is to be from the period beginning on the date of the act of discrimination complained of and ending on the day of calculation. All other sums are to be calculated for a period beginning with a mid-point date between the act of discrimination and ending on the day of calculation.[13]We have considered the cases of Environment Agency v Rowan [2008] IRLR 20 EAT; Archibald v Fife Council [2004] IRLR 651 HL; Project Management Institute v Latif [2007] IRLR 579 EAT; , in respect of sickness policies Royal Bank of Scotland v Ashton [2011] ICR 632 EAT; Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] EqLR 634 EAT and Rider v Leeds City Council EqLR 98 EAT]. We take these cases as guidance, and not in substitution for the provisions of the relevant statutes.[14]The provision requiring payslips is in the Employment Rights Act 1996 at section 8, and for remedy at section 11. Evidence[15]The Tribunal perused substantial documentation provided by the parties and heard oral evidence from the Claimant and from her husband, and from Ms G Husbands, Ms J Morris, Ms E Knowles and Ms P Bridson.[16]The management of the hearing included breaks morning and afternoon and a full hour every lunchtime. The Claimant was able to have comfort breaks whenever she asked. The hearing was scheduled for no more than 2 full days at a time without a day’s rest for Mrs Whitburn. Mrs Whitburn felt unable to attend the hearing on Thursday and Friday the first week and the hearing then resumed the following Monday. The Tribunal was able to conclude the hearing without rushing Mrs Whitburn, but this used up the deliberation days built into the schedule, hence the delay in this decision as a chambers day was needed, and by reason of the members’ other commitments that was not possible immediately. Mrs Whitburn requested the RD&E to make its submissions orally so that she could consider them and prepare her own written submissions. Counsel for the RD&E agreed to this and made oral submissions on the last day of the hearing. That the RD&E made oral submissions meant that Mrs Whitburn was able to hear them. She specifically requested this in preference to the RD&E also providing written submissions. It was agreed that the RD&E might provide a response to the submissions of Mrs Whitburn, and they did. As Counsel made his oral submissions I explained to the Claimant the points being made so that the Claimant could fully understand what was being said. My notes of hearing record what I explained and when. In the interests of clarity I have not set them out in the note of the Counsel’s submissions which is annexed to this decision. Submissions[17]A note of the submissions of Counsel for RD&E is at Annex 2.[18]The submissions of Mrs Whitburn are in Annex 3.[19]The response to those submissions is at Annex 4. Facts found[20]Mrs Whitburn worked as a ward clerk for Royal Devon and Exeter hospital. She worked there from 23 November 1987 until her resignation on 16 January 2014 (although RD&E paid her until the end of March 2014). Her contracted hours were a total of 5 a week, on Saturdays and Sundays. She received a 44% enhancement to her hourly rate of pay for Saturdays, and an 88% enhancement for Sunday. This meant that by the time she left the RD&E she was paid £92.31 a week for 5 hours work.[21]The weekend ward clerk looked after 4 wards. During the week there was a ward clerk for every ward. Her work was to book in patients, and keep their records up to date.[22]In 2002 Mrs Whitburn was diagnosed with post viral syndrome and/or ME. The exact diagnosis is not relevant, but the effect is that Mrs Whitburn is frequently unable to function to a level necessary to attend work, and this becomes apparent to her only on awakening.[23]She had previously been diagnosed with depression: this is not relevant to her claims. Separately, in 2010 Mrs Whitburn developed a worsening of a back/leg problem, that caused her difficulty sitting. On 06 August 2010 Mrs Whitburn raised this with her then manager Tim Pithers. After a year or so, he referred her to Occupational Health, after a return to work on 17 June 2011 after a back related absence from work.[24]It is accepted by RD&E that the ME and the back/leg issues are both disabilities. There is no issue with the date of knowledge, save as to the back/leg problem. As to ME the RD&E accept that they knew in May /June 2007. Mrs Whitburn says she told them in 2002. The Tribunal finds the RD&E are correct. There is no record of it. Given Mrs Whitburn’s comprehensive claims, had it been as she said there would be evidence of it. It is inconceivable that Mrs Whitburn would have told a manager in 2002 and then not referred to it for 5 years. Mrs Whitburn stated that depression was not an issue for her after July 2008. It was in July 2011 the RD&E became aware of the leg/back problems of Mrs Whitburn.[25]In 2007 Mrs Whitburn did not attend work on a variety of occasions, but did not call in sick. No one noticed for a while, as she did not work every weekend, and worked alone. When this was noticed disciplinary action was taken. Mrs Whitburn said this was a result of disabling ME or depression. The RD&E ceased disciplinary action and referred Mrs Whitburn to Occupational Health. As there was limited management support on a Saturday, on the recommendation of Occupation Health, on return to work on 01 October 2007 after extended ME related absence, management agreed that Mrs Whitburn could work on a Wednesday instead of a Saturday. She would do routine administration work then, instead of being a ward clerk. Although this was lower grade work, and although it would not attract the Saturday enhancement of 44%, the RD&E continued to pay her at that rate, throughout, for the next 8 years. She continued with the Sunday work, when the work was much less than on a Saturday, and so not the problem for Mrs Whitburn that she found Saturdays to be.[26]At about this time, in 2007, Mrs Whitburn raised a grievance about the disciplinary process, that was resolved, and which she states was a protected act (because it was related to disability) and which she states is the reason she was, she says, victimised in 2012.[27]Mrs Whitburn suggested that she could come to work later on a Saturday: but in her absence through sickness the RD&E had tackled waiting lists by elective surgery on Saturdays: the patients needed to be booked in on arrival at as early as 07:30 am. Mrs Whitburn said that the nurses could do that, as they would be there, and she could do other work when she arrived later in the morning. The RD&E said that would not work - when there was a ward clerk there that was what the ward clerk did, and the nurses had other things to do, and plainly it would not wait. They did not accept Mrs Whitburn’s response, that there were 2 weeks in 3 when she was rostered so 1 in 3 when there was no ward clerk, so they could cope as they did on the 1 in 3 when she was not there. This was because there was alternative rostering, and that a ward clerk was important at the start of the day: if they had to manage 1 in 3 without one, that was no reason to manage 2 in 3 without a ward clerk.[28]The work on a Sunday was less busy. There were no patients booked in for surgery until Sunday evenings, when Mrs Whitburn did not work. She continued with her Sunday hours.[29]In any event Mrs Whitburn preferred not to work Saturdays in summertime, as she and her husband own a caravan, kept in Cornwall, which they let out in the summertime. She and her husband go down to the caravan on Saturday mornings in order to effect the changeovers.[30]Mrs Whitburn was off sick a very great deal. The RD&E has a policy that says disability related absence should be recorded separately from other sickness absence, but has no means of doing so. It uses something like the Bradford score as a trigger for action through sickness. Mrs Whitburn was never subjected to any formal management process arising from her very extensive sickness absence.[31]Mrs Whitburn asked for a special chair. She asked for one like that of a colleague. It was obtained for her, but after a while she found it was not suitable after all. An Occupational Therapist made a recommendation on 20 July 2012, when the appellant was off sick and it was implemented. This took a little while, and Mrs Whitburn remained absent from work (though fit to work) and was paid, as there was no chair until it was in place on 15 August 2012. Mrs Whitburn was not happy that others used her chair (although she needed it only 5 hours a week) and so it was locked away in a cupboard when she was not there. Mrs Whitburn objected that it was sometimes difficult for her to get access to that cupboard.[32]Mrs Whitburn wanted to have a space to collect her thoughts if the work got too much for her while at work. She then needed some “time out”. Management agreed to this, and allowed her to use the surgeons’ spinal library. Mrs Whitburn did not find this acceptable as the surgeons came into the library and spoke to one another, so that it was not fulfilling the function.[33]In her oral evidence Mrs Whitburn accepted that by February 2013 all adjustments had been made that could have been made.[34]Mrs Whitburn suggested that she should come to work as and when she was able, and work on her own in a filing room (the POC administrative centre). Management did not agree to this: there was an issue with lone working, and it was not acceptable for her to come in as and when she wanted. Nor would there be any certainty as to when the work would be done.[35]Mrs Whitburn indicated that she was troubled by having a high rate of sickness absence, and that was not necessary, as she was able to work days other than Wednesday and Saturday, and would like to make up the day lost to sickness on another day, so that it would not count as a sickness day at all. Management agreed this, but it did not work out, as the very first time the appellant was off sick and rearranged the day, she was also sick on that rearranged day: the manager decided the whole thing was completely unworkable. If she could not work the rearranged day it was a day off sick.[36]When told this, on 07 July 2013 Mrs Whitburn went off with stress, and never returned to work, resigning on 16 January 2014 giving as the reason that she had not received the payslips she should have got. Shortly before this RD&E had decided to convene a meeting that would lead to the commencement of the capability process relevant when there was extended absence, Mrs Whitburn having been absent for more than 6 months by this time.[37]After going off sick in July 2013 Mrs Whitburn said that she was not well enough to be contacted, and would let management know how she got on. She specifically requested management not to contact her. She later complained that she was left abandoned by management who had not been in touch with her to tell her how much she was missed, and generally to ask after her.[38]After 07 July 2013 Mrs Whitburn requested payslips. The pay office got very confused about how to pay her, because of the 44% and 88% enhancements. It is, as Mrs Whitburn points out, very simple in fact: she got that pay whatever hours she worked and if she worked none at all. The pay office did not understand this, and failed to give her payslips (though she did get paid, though not always entirely the correct amounts at the correct times). After she left the RD&E the RD&E paid her an extra £1100 or so to the end of March 2014, not taking the point that she had resigned in January 2014, but paying her until the end of March 2014. This was because on receipt of her letter of resignation management had asked her to reconsider, treating it as a letter of grievance, and so did not process her as a leaver for 2 months.[39]Shortly before Mrs Whitburn resigned, and to her knowledge, RD&E had convened a meeting that was to consider the implementation of the capability procedure in respect of the absence of the Claimant, who had been absent for over 6 months. That would inevitably, and shortly, have led to the termination of the employment of the Claimant for that reason. Her sickness absence record over the last 8 years would have made that a fair dismissal. The claims of the appellant[40]These are listed in a schedule. The Tribunal has considered that the Claimant has not met the Igen v Wong test to shift the burden of proof to the Respondent in any of the claims. If that burden had shifted the Respondent would have met it.[41]The claims fall into categories. The first are alleged failures to make reasonable adjustments. There is nothing in any of these claims. Mrs Whitburn agreed in answer to questions from the Tribunal that by February 2013 everything had been done that she could wish for. Her objections were that these had taken too long, and that the ability to work days when she was off sick on a later date had been withdrawn.[42]Taking the delay point first, there were some delays, for example in the provision of a second chair. That was not for any reason other than that it took that length of time to get it. There was no disadvantage to Mrs Whitburn as she was able to work, but did not as there was no chair, and was paid in full.[43]The RD&E said that it was not possible for the Claimant to roll forward a day’s sickness for a second time. This was not unlawful discrimination. The RD&E had gone far further than was reasonable. It was unrealistic to expect the RD&E to permit an employee to work when she was able, with days moved at no notice. That was exemplified on the first occasion it was tried: Mrs Whitburn was ill on the reorganised day. She was now into the next week of work. How long was she to be able to carry it forward? What about the work she would have done if at work?[44]If one sets the situation out in its constituent parts the complete unreasonableness of what Mrs Whitburn was demanding is apparent. She went off sick, never to return, when the RD&E said that when she was sick, on a day that she had arranged to come to work to replace a day when she was sick, she had to take that day as sick leave, and not roll it forward again, when it would run into the next week’s work. She only ever worked 2 days a week. If she could not manage 2 days in any given week it would be 3 days the next week. If she was off for 2 successive weeks of 2 days that would be 6 days due by the 3rd week. So would she then work 3 days a week until she made it up? What if she was sick again in any of the weeks before she had made up the days? Was she to have a bank of days she owed the RD&E to make up when she could? How large could that bank of days be? But in fact RD&E said that she could make up days lost to sickness “by agreement”. This necessarily has the prospect that there might not be agreement. The double roll forward was such a case. It was entirely reasonable of the RD&E not to agree a second roll forward. That refusal was the cause of Mrs Whitburn going off sick for the last time.[45]This might be described as a PCP or an adjustment. But to require that the rearranged day had to be taken the next week or booked as sickness is at least as far as anyone could think a reasonable adjustment would need to be: even that was not enough for Mrs Whitburn. As Emma Knowles was alleged to have said (the “social club” allegation) she wanted to attend when it was convenient to her. The adjustment offered was that by agreement (the words are important) Mrs Whitburn might work a day when she was off sick another day. Not to agree a further roll forward is, in the judgment of the Tribunal within that adjustment. Even Mrs Whitburn said that she was not asking to work whenever she felt like it - though what she was demanding comes very near to that).[46]The fact of the matter is that the RD&E allowed Mrs Whitburn to continue to work on terms that suited her: which was to work whenever she felt able (but not on Saturdays in summer when she wanted to look after her caravan). She would be paid at 44% or 88% above the rate for the job when she worked in the week, and even though she would do only basic admin work then.[47]The matters Mrs Whitburn describes as PCPs are largely not PCPs but adjustments to her standard conditions to her advantage by reason of her disabilities, with which she did not wholly agree at the time.[48]Mrs Whitburn’s next categories are victimisation and harassment. There is nothing in these claims either. Mrs Whitburn said that one manager, Emma Knowles said to her in exasperation “This is not a social club”, when Mrs Whitburn wanted to work a day to suit her in the week, to be determined on the day she came in. On the balance of probabilities it is entirely likely that Ms Knowles said such a thing, in the circumstances. Mrs Whitburn has an ego centric view of the world, but the Tribunal did not think her untruthful. This was not harassment or victimisation. Mrs Whitburn complains that Occupation Health was told information they did not need to know: on another occasion she complained that Occupational Health had not been told enough. Mrs Whitburn complained that she was offered early retirement and did not want it and then the matter was raised again. Since early retirement on medical grounds is usually (especially in the health service) on very advantageous terms it is impossible to see this as a detriment. That Mrs Whitburn may have said she was not interested once did not mean it was harassment to see if she might be interested in it at a later date.[49]Mrs Whitburn objected that while off sick from July 2013 she was not contacted by management to see how she was. When asked what should have been done, Mrs Whitburn said that she should have been told how much she had been missed and to ask how she was. She had previously written emails to the RD&E to say that she was too ill to deal with correspondence, that she was awake at night and asleep in the day, did not want to be troubled and would let them know how she was getting on. When asked to explain how these two were reconcilable, Mrs Whitburn said that she did not want to be troubled with process, but expected there to be pastoral care. The Tribunal did not find this an attractive argument: it was probably a genuine answer, and an example of the unidirectional view of Mrs Whitburn, which can be summarised as the RD&E having all the obligations to accommodate her every need or wish because it was disability related, without any cognisance of their position. A further example of that was the introduction of elective surgery on Saturdays in order to reduce waiting list times. Mrs Whitburn was off on long term sick leave at the time. She objected that she was not consulted about this. She is a 5 hours a week ward clerk in a big hospital. It did not affect her hours of work in any significant way.[50]That the RD&E wanted to monitor her work was entirely understandable. Her absences had come to light as she had not turned up for work and not told anyone, and been paid. Her sickness absence was so large that monitoring was entirely justified. Calculation of her sickness absence in full weeks when she was only working 2 days a week was not harassment or victimisation. She suffered no detriment. If she was not at work on either of the days in a week when she was due to work, that is a week’s absence even if she was due to work Saturday and Sunday and was ill, but was not ill Monday to Friday.[51]Complaints said to be victimisation such as holding a meeting without prior notice and being told that it might be necessary to start the capability procedure and to canvass the possibility of early retirement are not victimisation or S15 matters. The meeting in question was an informal meeting, not a disciplinary one. The asserted failure to provide notes of meeting related to manuscript notes which were subsequently turned into a typed note, and destroyed. The typed notes are not said to be inaccurate. Perhaps the manuscript notes should have been retained, but even if so it is not victimisation or S15 disability discrimination to have destroyed them. It was nothing to do with discrimination, or Mrs Whitburn, but working practice. There has never been a refusal to provide anything. Mrs Whitburn may have needed to ask on occasion, and when she did she was provided what was asked.[52]Other complaints are of failure to advise of various things, categorised as victimisation. Change in line manager is one such, or not notifying the outcome of a meeting in December 2013. Mrs Whitburn complains that she was victimised by not being told that she had a long service award (25 years on 23 November, and so at about that time) and a shopping voucher. It was at work awaiting her return. She had said that she did not want to be disturbed at home. She complained about everything: it was entirely understandable that RD&E staff put it in a drawer to await her return, and overlooked it when the absence became extended. Most of the absences of Mrs Whitburn in recent years had been short. It was not done to victimise her, and nor is it S15 discrimination.[53]The allegation that the RD&E failed to contact the Claimant typifies the Claimant’s view of the world. She told the RD&E that she could not sleep at night, and was often asleep in the day. She was so affected by her ME that writing the simplest email took a long time, and she had to pick her time to try. She could not cope with emails or phone calls, and she did not want any. She would update them as to her condition when she felt able. They did not contact her, at her request. Had they done so there would inevitably have been an allegation of harassment or bullying. Instead the Claimant complains that the RD&E failed to comply with its pastoral duty of care, and were not telling her how much she was missed and how important her work was. She says this is different to contacting her for the management of sickness absence. This is unrealistic. She had asked not to be contacted. No one could manage a person with such views to that person’s satisfaction. This attitude permeates all the Claimant’s claims. Because she has a disability her view is that the entire organisation has to be geared to cope with her every need. If they do not there is S15 detriment, or S19 indirect discrimination, or S13 direct discrimination, or S23 harassment. The Claimant overlooks that the obligations of the Respondent are limited to what is reasonable in all the circumstances.[54]There are other allegations of indirect discrimination, such as criteria for monitoring her case. It needed monitoring. Constructive dismissal is said to be indirect discrimination. It is not a provision criterion or practice.[55]The Tribunal found an overview of the facts to be far more instructive than over emphasis on the immense detail in the paperwork. If ever there was a case where there is a danger of not being able to see the wood for the trees this would be it, had the Tribunal focussed on the trees rather than the wood.[56]All the claims under the Equality Act for disability discrimination are dismissed. The Respondent allowed the Claimant to do whatever she wanted, and did whatever she asked, and paid her enhanced rates for doing lesser work at times when she was contractually entitled to no pay enhancement, and put up with a sickness record that no employer could be criticised for treating as a reason to end employment (disability related or not).[57]It really is not a reasonable adjustment for an employee to expect the employer to allow the employee to come to work when she feels she is able to do so, to cancel on the morning of a rostered work day and reschedule, as of right, to give the employee permanent access to her own personal “break out” space to use as and when she wishes, and to give her sole access to a chair (or to provided her with her own individual storage for it) when she worked 5 hours a week as a clerk. A hospital is a hugely complex organisation, and there are limits to how accommodating it can be expected to be. The Respondent went far further than ever the Claimant might reasonably have expected, and did so for years.[58]In so far as claims are about allegedly discriminatory policies they fail as whatever policies or trigger points there may be, no detrimental action was ever taken against the Claimant by reason of sickness absence. That the RD&E was not able to record disability related absence separately from other sickness absence as its policy required does not give rise to any claim by the Claimant as there was never any form of performance management of the appellant by reason of absence (or for anything else, save for not turning up for work and not telling anyone, right at the beginning, which the Respondent dropped as soon as the Claimant said that it was disability related).[59]The claims about ill health early retirement cannot succeed, as this was to offer to explore whether an advantage was available to the Claimant. The Claimant enjoyed the social side of work and did not want this: that does not make it discrimination to ask Occupation Health to consider whether it could apply to her. She asserts that it was harassment to repeat the offer. When referring again to Occupational Health in circumstances such as those of the Claimant it was nothing other than sensible to check the position.[60]The claims to harassment and victimisation cannot succeed against the background of an employer doing far more than any one (other than the Claimant) would think reasonable, and doing so for years. There was no intention to (or effect of) causing the Claimant loss of dignity or other hurt. They did all they could to help her. In so far as there is any matter which took too long, or where there was a failure to do anything, this was entirely down to operational matters. For example getting a special chair took a few weeks. In the scheme of things this was not too long: if it was that was not a matter of discrimination. At worst it might be asserted to be inefficiency. Problems with payslips were admin matters with people who had no connection with the Claimant. If that matter was not chased up as the Claimant (and the Respondent) would have liked, then that has to be put into the context of a million and one other things to be done. It was not discriminatory. And while the dignity of everyone at work has equal importance, it has to be borne in mind that the Claimant worked 5 hours a week, latterly doing much routine administration. Any organisation has to prioritise. It is not discriminatory that she was not always at the top of the list of priorities.[61]The claim to have been victimised in 2012 by reason of a grievance raised 5 years beforehand (and given how over accommodating the RD&E had been in the 5 years since) is not credible.[62]While RD&E concedes that the Claimant was entitled to resign over a breach of a fundamental term of the contract, it is highly significant that RD&E had convened a meeting with the Claimant that was the precursor to the instigation of the capability procedure that would inevitably have led to the dismissal of the Claimant for capability reasons.[63]Given these findings of the Tribunal the question of out of time issues is not determinative. Taken at their highest, these claims do not succeed. It was necessary to determine the facts to determine the discrimination claims that were not out of time, such as constructive dismissal.[64]However the Tribunal also considered the Respondent’s claim that many of the claims were out of time. The Claimant agreed, in answer to question from the Tribunal, that by February 2013 there was nothing that she wanted done that had not been done.[65]That means that all the claims for reasonable adjustments are out of time, as that is nearly a year before she left. For that reason also, at that point (February 2013) there was nothing for the Claimant to complain about. She did not go off sick until July 2013: more than 3 months later. The decision not to allow the Claimant to roll forward a sick day for a second time was not part of any sequence of events. All claims before the start of May 2013 are out of time.[66]The Claimant was off sick from July 2013 until she left in January 2014. All the claims for other matters before July 2013 are out of time for this reason also (as well as that in paragraph 65).[67]The Claimant complains that during that period of sickness absence the Respondent did nothing: therefore it is logically impossible for anything done before she went off sick to be a containing act (the complaint about lack of pastoral care has no merit and could not join the claims into a sequence). The complaints about payslips are unconnected with anything that went before and are simply administrative matters. The long service award was oversight. The allegations set in the period of sickness have no merit and do not form any part of a sequence.[68]The Tribunal does not think it would be just and equitable to extend time. Most of the discrimination claims of the Claimant therefore fail as out of time. If they were not out of time they are dismissed on their (lack of) merit.[69]There was no right to payslips, holiday pay or sick pay subsequent to the ending of the employment by resignation on 16 January 2014. The Claimant was ordered to pay a deposit as a condition of continuing with a claim that the effective date of termination was later, and did not do so. Accordingly the Tribunal finds that date to be the effective date of termination. While the Respondent made payments past that date, the money was not pay (as the employment had ended) and so there can be no entitlement to payslips.[70]In so far as a comparator is required the Tribunal have had to apply a hypothetical comparator, which would be a person with no disability but who had a very poor attendance record, with a mixture of extended absences and repeated and frequent daily absences without notice.[71]The Tribunal accepted the submissions of Counsel as a thoughtful analysis of the issues and largely agreed with them.[72]Summary: The Claimant had a very poor long term sickness absence record. After a long history, by February 2013 the Claimant was satisfied with everything that was done for her (save that the surgeons would talk in their library so that it was not quiet all the time). The Respondent agreed that, by agreement on a case by case basis, she could roll forward a day when she was off sick in order to work another day, and so not take the first day as sickness absence. When she was sick on a re rostered day the Respondent said that it could not be rolled forward again. That was a reasonable thing to say. It was not to withdraw that adjustment but to implement it. The Respondent was not obliged to agree to the request of the Claimant to roll forward days off sick, as the adjustment required their agreement. Their refusal on this occasion was reasonable. It was this that prompted the Claimant to go off sick, never to return. She resigned and claimed constructive dismissal over payslips, soon after she was notified of a meeting to consider her extended absence, the end of which was not in prospect. That meeting, with her sickness absence, would have soon led to the ending of her employment through that process being followed.
Remedy
[73]Failure to provide payslips. It appears this is limited to the payslip for January 2014, the Tribunal having decided that there was no entitlement to pay and so no entitlement to a payslip for February and March 2014. The Tribunal so declares and does not make any monetary award.[74]Unfair dismissal: Mrs Whitburn is entitled to 12 weeks’ pay in lieu of notice, upon her resignation accepted as constructive dismissal. She has been paid 10 weeks, from 16 January 2014 to 31 March 2014. Her entitlement is therefore 2 weeks pay, at £92.31 a week = £184.62. However in submissions Counsel for the Respondent told the Tribunal that the Respondent had agreed and paid a figure of £1300 for the first 3 claims in the first ET1 and so no award is made.[75]Mrs Whitburn is entitled to a basic award of 1 ½ weeks’ pay for each of 19 years and 1 week at 1 week’s pay. 29 ½ x £92.31= £2723.15.[76]Mrs Whitburn is still off work. There is no prospect of her being fit for work, over 2 years after leaving the RD&E. RD&E had not taken any step to end her employment by reason of sickness. It is not conceivable that they would not have dismissed her by now. The process was about to start. Loss of statutory industrial rights implies that are statutory rights to be acquired. Mrs Whitburn is unlikely to be obtaining statutory rights and so it would not be just and equitable to order a payment for loss of non existent statutory rights.[77]Any award that might otherwise be in prospect would be reduced to zero as a Polkey reduction. While the Respondent has accepted that the resignation was by reason of the payslip issue, and not by reason of the imminence of the capability process being implemented, the documents clearly show that this was now about to be followed. Mrs Whitburn would have been dismissed for capability reasons shortly after she resigned.[78]Mrs Whitburn was running out of any entitlement to pay, having been off work from 13 July 2013. There is no proved loss of income. Therefore it is not just and equitable to make any compensatory award, as there is no evidence of loss.[79]There would have been loss of holiday pay in the notice period. At page 1107 Mrs Whitburn calculates this at £235.26. The RD&E say it is £181.25. Counsel for the Respondent said in submissions that a figure of £1300 had been agreed and paid for the first 3 claims in the first ET1 of which this is one, and so no award is made. If it has not been paid the Tribunal assess it at £235.26, as the cost of arguing the difference will exceed it.[80]If either party considers that any financial aspect is not arithmetically correct, or that the Tribunal has not properly understood the £1300 agreed to be paid to Mrs Whitburn by RD&E they are invited to apply, with full reasons, for the Tribunal to review that part of the decision. Employment Judge Housego Date 14 JUNE 2017