Mrs A Tohou v Hampshire County Council: 1401899/2020
EMPLOYMENT TRIBUNALS
Case No 1401899/2020
Between
Mrs A TohouClaimantHampshire County CouncilRespondent
Before
Employment Judge P CadneyMr P Wareing for claimantMs A Weatherley for respondentDate 28 November 2022
REASONS
[1]By a claim presented on 14th April 2020 the claimant brought claims of unfair dismissal; unpaid holiday pay; disability discrimination; and pregnancy/maternity discrimination which the claimant subsequently confirmed had been submitted in error.[2]Representation – Although Mr Wareing is a member of the bar he has confirmed that he is representing the claimant in the capacity of a lay representative and that he has been advised by the Bar 1 of 7 Standards Board that it is permissible and acceptable for him to do so.[3]Claims - The case came before EJ Roper on 8th December 2020 and he gave the following summary of the claims. “By way of general background, the claimant was employed by the respondent as a care assistant at its Emsworth House care home from 1 November 2015 until 2 December 2019 when she was dismissed by reason of capability (ill-health). …... The claimant has now instructed a professional legal representative, and it was confirmed today on behalf of the claimant that she brings the following claims: unfair dismissal; direct disability discrimination (relying on her own physical impairments namely(i) hypertensive cardiomyopathy with previous arterial hypertension, and(ii) asthma); direct associative disability discrimination (relying on her daughter Vicky’s mental health impairment); and for accrued but unpaid holiday pay.”[4]He listed the case for a 1 day Preliminary Hearing to determine:(1) Whether the claimant’s unfair dismissal and accrued holiday pay claims were presented in time, and if not, whether it was not reasonably practicable to have done so and whether the claims were then presented within such further time as was reasonable (see section 111(1) and(2) of the Employment Rights Act 1996 and Regulation 30(2)(a) and (b) of the Working Time Regulations 1998); and (2) Whether the claimant’s discrimination claims were presented in time, and if not, whether it would be just and equitable to extend the time limit (see section 123(1) of the Equality Act 2010). Facts[5]The claimant was summarily dismissed on 2nd December 2019. The primary time limit for bringing the claims of unfair dismissal, holiday pay and disability discrimination relating to herself was 1st March 2020. The claims of associative discrimination relate to events of 12th September 2019 and the week preceding 20th November 2019, and thus (if arguably forming part of a continuing act) the primary time limit expired on 19th February 2020 at the latest. The ACAS EC certificate gives the commencement date (date A) as 24th March 2020 and the conclusion (date B) as 30th March 2020. As the date of 24th March 2020 is outside the primary limitation period for all claims she does not get the benefit of any extension of time.[6]It follows that all the claimant’s claims were presented out of time and the question before me is whether time should be extended in respect of all or any of them. 2 of 7 Unfair Dismissal / Holiday Pay[7]The questions in respect of both claims is whether it was reasonably practicable to have presented the claims in time and if not whether they were presented in such further thereafter as was reasonable. The claimant relies on three factual assertions to support the extension of time: i) Anxiety regarding an appointment with her cardiologist; ii) Anxiety regarding the well-being of her disabled daughter who suffers from arrange of conditions including severe epilepsy and Autistic Spectrum Disorder and who is in consequence of severe mental health issues under the care of the local CMHT; iii) Being unsupported in her life as her husband was abroad on business in the Ivory Coast at the material times. (C skeleton argument para 4)[8]The evidential basis for those assertions is relatively scant. In her application to the tribunal the claimant states “I did not submit my application earlier to the tribunal because I was very sick and alone,. There was nobody to help me. I even thought I would die from blood pressure and my heart conditions.” The claimant was unable for technical reasons to join the CVP hearing and I asked Mr Wareing whether he intended to call her to give oral evidence to clarify and amplify those assertions. He said he was not and that he was happy to proceed in her absence. Similarly Ms Weatherley indicated that she was happy to proceed without cross-examining the claimant. As both parties were content to do so I proceeded with the hearing and made my decision on the basis of the information before me.[9]There is no medical evidence in support of the contentions outlined above, and I considered the following authorities: Wall’s Meat Co v Khan [1978] IRLR 499, Porter v Bandridge Ltd [1978] IRLR 271 CA and Cullinane v Balfour Beattie Engineering Services Ltd UKEAT/0537/10 and the test in Palmer and Saunders v Southendon-Sea BC [1984] IRLR 119 was applied. Ordinarily medical evidence would be required to show that an illness prevented a claimant from presenting a claim in time, although it was not absolutely essential (Norbert Dentressangle Logistics Ltd v Hutton EATS 0011/13).[10]In his submissions Mr Wareing does not distinguish between the separate tests for the unfair dismissal / unpaid holiday pay claims and the discrimination claims (see below) and contends that the matters outlined above satisfy both tests. The difficulty is that in my judgment none of the facts as set out above in and of themselves demonstrate that it was not reasonably practicable to have presented 3 of 7 the claim in time. Given that it is not challenged, I accept that the claimant was suffering from anxiety as to her own health and that of her daughter, and that those anxieties might be exacerbated by the absence of her husband. However there is no medical evidence that her mental capacity was so affected that it was not reasonably practicable for her to present the claim or to do so without the assistance of her husband; and the claimant was able to contact ACAS by 24th March 2020 which is some three weeks from the expiry of the limitation period. There is no evidence before me that anything had changed and if so what in those three weeks. In my judgment there is simply insufficient evidence before me to allow me to conclude that it was not reasonably practicable to have presented these claims in time.[11]These clams will therefore be dismissed on the basis that they were presented out of time. Discrimination Claims[12]The burden of proving that it is just and equitable to extend time to enable a claim to proceed is on the person seeking the extension. In Robertson v Bexley Community Centre t/a Leisure Link (2003) IRLR 434, the Court of Appeal stated that when employment tribunals consider exercising the discretion under s123 Equality Act 2010, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’[13]Some relevant factors can be derived from s33 Limitation Act 1980 (as identified in British Coal Corporation v Keeble (1997) IRLR 336).S33Limitation Act 1980 requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to -(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had co-operated with any requests for information.(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action. 4 of 7(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.[14]However, the ET has a broad discretion and those factors should not be considered or applied mechanically; as is set out in Adedeji v University Hospitals Birmingham NHS Trust (2021) EWCA Civ 23:- “Keeble did no more than suggest that a comparison with the requirements of section 33 might help "illuminate" the task of the tribunal by setting out a checklist of potentially relevant factors. It certainly did not say that that list should be used as a framework for any decision. However, that is how it has too often been read, and "the Keeble factors" and "the Keeble principles" still regularly feature as the starting-point for tribunals' approach to decisions under section 123 (1) (b). I do not regard this as healthy... “ and “Rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion... The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular ….. "the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking”.[15]Overall, in relation to the discrimination claims, the cases of Robertson v Bexley Community Service IRLR 434 CA, Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA, Pathan v South London Islamic Centre EAT 0312/13, Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 and Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 were considered.[16]The claimant relies specifically on the judgement of Leggatt LJ in the Abertawe case above (para 25) specifically in relation to the fact that it is not necessary for there to be a good reason for the delay nor that time cannot be extended in the absence of an explanation of the delay from the claimant.[17]In my judgement he most significant factors in the claimant’s favour are that firstly the delay is not for a significantly lengthy period. Secondly that I can identify no specific prejudice caused by a relatively short delay. In the respondent’s written submissions there is a general assertion that delay will cause memories to fade and affect the cogency of the evidence; but no specific assertion as to the effect on the evidence in this case. In my judgement there is no evidence that the ability of the respondent to defend the claims has been significantly prejudiced, or indeed prejudiced at all by the delay. The most significant factor in the respondent’s favour is that I accept that there is no good reason for the delay as, accepting as I do that the claimant is correct as to the reasons for the delay they do not appear to me to suggest any significant impediment to lodging the claims in time. 5 of 7[18]Balancing those factors in my judgment favours the claimant; the prejudice to her of refusing to extend time outweighs that to the respondent of doing so and time is extended on the basis that it is just and equitable to do so in respect of the discrimination claims. Further Directions[19]As was agreed orally the parties are directed to lodge within 14 days (marked FAO EJ Cadney): i) An agreed time estimate for the final hearing together with an indication of the number of witnesses they intend to call; ii) Inconvenient dates for the final hearing; iii) Draft directions. Note; For further assistance in relation to the requirements of these directions and in order to prepare themselves for the final hearing, the parties are referred to the Presidential Guidance - General Case Management which can be found at; http://www.justice.gov.uk/downloads/tribunals/employment/ruleslegislation/presidential-guidance-general-case-management.pdf Note; online publication of judgments and reasons The ET is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The ET has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the ET for an order to that effect under Rule 50 of the ET's Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness. 6 of 7 CONSEQUENCES OF NON-COMPLIANCE 1. Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996. 2. The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing. 3. An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Case Number: 1401899/2020 EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mrs A Tohou Hampshire County Council Held at: Exeter by video On: 19 July 2022 Before: Employment Judge Smail Appearances Claimant: Mr H Tohou (husband) Respondent: Mrs A Weatherley (solicitor) PRELIMINARY HEARING JUDGMENT 1. The Respondent’s application to strike the claims out is dismissed. 2. The Claimant’s application to add liability allegations as set out in her document dated 13 July 2022 entitled ‘Schedule of Less Favourable Treatment’ is dismissed. 3. The Claimant’s application to add a claim for personal injury is permitted insofar as it is a head of remedy in the event that the liability claim on the existing issues is successful.
The Law
[20]The following are relevant sections from the Equality Act 2010. 13 Direct discrimination 1) 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. 109 Liability of employers and principals (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. 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.[21]In considering questions of causation, in Nagarajan [1999] IRLR 572, the House of Lords held that that if the protected characteristic had a 'significant influence' on the outcome, discrimination would be made out. The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?'[22]In Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 it was held at para 12: “Both sections use the term “because”/“because of”. This replaces the terminology of the predecessor legislation, which referred to the “grounds” or “reason” for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the “reason why” issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport [2000] 1 AC 501, referred to as “the mental processes” of the putative discriminator (see at p. 511 A-B). Other authorities use the term “motivation” (while cautioning that this is not necessarily the same as “motive”). It is also well established that an act will be done “because of” a protected characteristic, or “because” the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.”[23]In Madarassy v Nomura International plc [2007] IRLR 246, the Court of Appeal held, at paragraphs 56-57, “The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57 'Could conclude' in s.63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this Stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.[24]In Hewage v Grampian Health Board [2012] UKSC 37, the Supreme Court held “Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors [2011] ICR 352 (para 39) it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”
Findings of Fact
[25]We accept that while Mrs Tohou worked for the respondent she was disabled by reason of asthma and a heart condition and her daughter was disabled by reason of Autistic Spectrum Disorder.[26]Mrs Tohou started working for the respondent in November 2015. Initially she had been employed via an agency and was a good worker. There is no dispute that Mrs Tohou was good at her work and had good relationships with residents in the care home where she worked.[27]Pursuant to Mrs Tohou’s job description, just under half of her time was to be spent key-working, which included acting as a key worker for a number of residents so that a special relationship was forged and maintained with them to promote their physical, emotional and social well-being. We accept the respondent’s submission that continuity is important in establishing such a special relationship and periods of absence by members of staff can affect the maintenance of that relationship. We also accept the submission of the respondent, and find, that absence of staff puts additional pressure on colleagues who either have to cover for an absent member of staff or work with agency staff. We also accept that using agency staff to cover for absent staff adds to the cost of maintaining the home.[28]The respondent has a Managing Sickness Absence Policy. It deals with shortterm sickness absence and long term sickness absence differently. There is, also, a how-to guide for managing sickness absence. The policy and the Guide are designed to work together. The Guide requires the employee’s manager to consider whether the employee has reached or exceeded a trigger point and if so to take steps. The trigger point for short-term absence is 6 working shifts over 2 or more occasions in the previous 12 month period. The first step is an informal Stage, followed by a formal Stage if matters do not improve. At Stage 1 of the formal process the Guide provides for an employee to be given a 12 month review period following a Stage 1 meeting and a 12 to 24 month review period following a Stage 2 meeting. The policy refers to the review period but also to a written warning being given at Stage 1 and Stage 2. In essence it requires that a warning is given that the employee must not exceed a certain level of absence within a period of 12 months or more. At Stage 3 an employee can be dismissed on the grounds of medical capability.[29]On 21 June 2017 Mrs Tohou’s manager, Ms Cherian, wrote to her stating that she had had 10 shifts of sickness absence in 5 episodes during the last 12 months. A meeting had taken place under the respondent’s formal process and Mrs Tohou was issued with a Stage 1 formal warning. The warning was only to remain in force until 1 September 2017 and Mrs Tohou was required to take no more than one shift’s sickness absence in that 3 month period. Mrs Tohou was told that if she failed to achieve that target consideration would be given to moving to a Stage 2 meeting. Mrs Tohou was given the right to appeal against that decision but did not do so.[30]We have been provided with a document entitled SAP Sickness Information which shows absence for the “last 36 months” printed on 26 September 2019. That document records absences which, it is not disputed, were inputted by Mrs Tohou when she returned to work after her absence. It shows absence of one shift between 16th and 17 December 2016 and 5 shifts between 21st May and 27th May 2017. It does not, therefore, quite match the content of the letter of 21st June 17. That may be because the SAP document does not cover the period before 26 September 2016 (since it only shows the 36 months absence prior to the date it was printed) but in any event Mrs Tohou did not challenge what was set out in the letter of 21 June 2016 either at the time or before us. Even on the SAP document the trigger of 6 working shifts over 2 occasions had been met.[31]The respondent submits that it was a matter of kindness by Ms Cherian that the claimant was only given a 3 month review period at that stage rather than a 12 month one. In essence if Mrs Tohou was able to manage 3 months without more than one further absence she would have complied with the Stage 1 warning. Ms Cherian did not give evidence as to why she selected a 3 month period rather than a longer one and we place little reliance on that fact.[32]A further meeting took place on 8 September 2017 between Mrs Tohou and a manager (this time Ms Jacobs) because Mrs Tohou had been absent from 24 August 2017 to 6 September 2017 being a period of 7 shifts. The reason for absence was chest pain and stress. The review form showed that over the previous 12 months Mrs Tohou had 22 days absence and the review form set out how that was calculated. We accept that it is accurate. It appears that no action was taken until a further review took place with Cicy Zachiarias, deputy manager, on 29 November 2017. Instead of requiring Mrs Tohou to progress to Stage 2, Mrs Tohou was given a further warning and told her that she must have no more absence than 6 shifts on 3 occasions for the next year.[33]It was put to Mrs Tohou in cross-examination that Ms Cherian could have progressed to a Stage 2 meeting at that stage. Mrs Tohou did not deny that but said that she thought Ms Cherian was happy with the way things were happening.[34]According to the SAP report, Mrs Tohou was then absent from work between 27 January 2018 and 6 April 2018 due to an allergic reaction – a total of 48 shifts. No action was taken against Mrs Tohou when she returned to work.[35]Mrs Tohou was then absent from work between 29 May 2018 and 4 June 2018 and the reason given on the SAP report is Chest/Bronchitis. At that stage the respondent implemented a Wellness Action Plan to assist Mrs Tohou as is apparent from page B14 of the bundle. In her evidence Mrs Tohou accepted that that was an attempt to support her in remaining at work.[36]Mrs Tohou was then absent from work between 15 June 2018 and 19 June 2018, being a period of 3 shifts. On Mrs Tohou’s return she had a meeting with Cicy Zachiarias who discussed with Mrs Tohou referring her to occupational health and also asking HR to assist with a Stage 2 process.[37]On 10 July 2018 a second Stage 1 meeting was carried out with Ms Cherian; thus it cannot be said that the respondent was rushing Mrs Tohou through the different Stages of the sickness absence policy. Mrs Tohou was provided with another Stage 1 formal warning to remain in force until 10 July 2019 with a target of no more than 6 shift’s sickness absence over 2 episodes within the next 12 months. Mrs Tohou was given the right to appeal. She did not do so.[38]The referral to occupational health took place and a report was provided on 1 November 2018. In the meantime a risk assessment had been carried out on 13 September 2018 by Mrs Tohou’s grandparent manager, Ms Brodison, which recorded that Mrs Tohou was not to push manual hoists, she could decide for herself whether she was well enough to push meal trolleys and for her to use the bell system to call staff to provide assistance when she needs it.[39]Mrs Tohou was then absent between 29 November 2018 and 9 December 2018, missing 4 shifts due to Chest/Bronchitis and between 28 December 2018 and 14 January 2019, missing 7 shifts due to “ENT including cold and flu”. In her evidence Mrs Tohou agreed that that level of sickness was unacceptable.[40]A Stage 2 meeting then took place on 1 February 2019 between Mrs Tohou and Ms Cherian. The minutes of that meeting record that Mrs Tohou had said that she was happy with the hours she was working but that Ms Cherian had suggested that if health issues were ongoing the claimant could consider going part-time or doing half shifts instead of a full shift. Those minutes are confirmed in the letter sent following the meeting on 8 February 2019 which recorded that there had been discussion about the rota and Mrs Tohou was to consider changing to half shifts. Mrs Tohou was provided with a Stage 2 warning for unacceptable attendance which set a target of no more than 6 shifts or 2 occasions of absence in the next 12 months.[41]Mrs Tohou was then absent between 5 May 2019 and 8 May 2019 (1 shift) and between 20 May 2019 and the 12 June 2019 when she was absent for 9 shifts. In addition, not recorded on the ASAP form, Mrs Tohou agreed that she was off work on 15th July for one shift due to her daughter’s illness.[42]Mrs Tohou was then absent from 26 August 2019 to 12 September 2019 (7 shifts).[43]Mrs Tohou met with Ms Cherian on 12 September 2019. The minutes of that meeting record the following “discussed about rota, the number of hours working? Casual shift – said would get back after having a thought about it.” In that meeting Mrs Tohou told Ms Cherian that she was very depressed as her daughter was unwell and the GP came to her home to see her daughter about mental health.[44]Ms Cherian then wrote a report relating to Mrs Tohou’s absence for the purposes of progressing matters to a Stage 3 meeting. The report is a largely factual report setting out Mrs Tohou’s role, her disabilities and her absence. The report records that Mrs Tohou has stated that her recent absence was a result of her daughter’s health which had caused her stress and also set out certain operational considerations. It stated that the amount of absence was having a significant impact on service provision and a significant effect on the continuity of services to residents. The conclusion of the report was that it was recommended that a Stage 3 formal meeting should be held to consider dismissal on the grounds of medical capability.[45]A Stage 3 meeting was held on 2 December 2019. Mrs Tohou was represented at the meeting and the meeting, according to the minutes, took over 2 hours. It is apparent that Mrs Tohou’s representative and Mrs Tohou were able to raise any matters they wished to.[46]The decision maker was Gill Nother who has now left the respondent’s employment and from whom we did not hear. She sent a reasonably detailed letter confirming her decision on 4 December 2019 which was that Mrs Tohou should be dismissed on the grounds of medical capability. The letter stated “You were on a final written warning following a Stage 2 meeting that took place on 1 February 2019, at which point you were set a target of no more than 6 shifts or 2 occasions of sickness absence in a 12 month period. Since then, you have been absent for a total of 4 occasions totalling 20 days”.[47]Mrs Tohou has not made any allegation that Gill Nother was motivated by the fact that she or her daughter were disabled rather than because of the level of her absence and we have been referred to no evidence that would support such an allegation. There is no evidence to suggest that the reason for dismissal given in the letter of 4 December 2019 was not the real reason.[48]Because of the allegations made in this claim we set out additional relevant findings of fact.[49]We find that for a considerable period Mrs Tohou had been unhappy with her management by Ms Cherian. She had complained about Ms Cherian to Ms Brodison. Ms Brodison told us that because Mrs Tohou had complained about Ms Cherian, she ensured that supervision and support was provided to Mrs Tohou by Cicy Zachiarias and, on a day-to-day, basis Mrs Tohou would be supported by assistant practitioners. She does not appear to have attempted to make any decision as to whether the complaints were fair or not but, we accept, simply took a pragmatic route to deal with the complaints raised by the claimant.[50]There is no objective evidence before us that Ms Cherian was bullying or harassing Mrs Tohou. Mrs Tohou says that Ms Cherian was following her around, looking for mistakes. Ms Cherian denies that, however she does accept that spot checks would be carried out for the maintenance of standards. Mrs Tohou said that Ms Cherian would pick her up for not wearing dark shoes but would allow other staff not to do so. Ms Cherian denied that and said that she would mention to anybody who was not wearing their uniform properly that they should do so. Mrs Tohou said that Ms Cherian would deduct her salary if she came in late but has provided no evidence that that had happened and Ms Cherian denied that she had the power to do that.[51]At no point during the sickness absence process has Mrs Tohou suggested that her absences have been wrongly recorded or regarded by Ms Cherian or that her absence was connected to bullying by Ms Cherian. Mrs Tohou did not suggest that the report which had been prepared by Ms Cherian for the purposes of the Stage 3 hearing was inaccurate or manipulated in order to cause her dismissal.[52]On the evidence before us it appears that Ms Cherian was not pushing for Mrs Tohou’s dismissal during the period from 2017 until she wrote the Stage 3 report. If Ms Cherian was seeking to achieve the dismissal of Mrs Tohou she could have pushed much harder at the early stages of the proceedings.[53]Mrs Tohou also says that she had asked Ms Cherian for changes to her working pattern to enable her to care for her daughter, including that she should start working at 9 AM instead of 7:30 AM. Ms Cherian denies that. We note that Mrs Tohou was given the opportunity to consider half shifts in February 2019 but did not pursue it. There is no written evidence of Mrs Tohou seeking to vary her hours in the way she suggests and we are not satisfied, on the balance of probabilities that she did so.[54]Mrs Tohou says that says in the week before 20 November 2019 she met with Ms Cherian and asked for long weekend shifts only, to enable her to care for her daughter. Ms Cherian, in her evidence, denies that she knew about Mrs Tohou’s daughter’s illness until the 12 September 2019 meeting. She denies refusing to change Mrs Tohou’s working patterns or allow her to go part-time and asserts that she repeatedly asked Mrs Tohou to consider those avenues and Mrs Tohou said she would think about it but did not come back to her.[55]Ms Cherian’s evidence is consistent with the contemporaneous minutes of the meetings we have set out above. However, Mrs Tohou’s evidence is not entirely consistent with the minutes of the Stage 3 meeting.[56]In that meeting Mrs Tohou said that she did not want casual work but went to the deputy manager (Ms Cherian) and proposed to her that she could do shorter hours but Ms Cherian refused. She was asked whether that was after the Stage 2 meeting and Mrs Tohou said that it was after a week when “they came to the home to listen to everybody”. Ms Nother then said “I just need to refer to it, to see the agreed outcomes and action plan at point 5. You would consider taking half shifts and need some time to decide. The date of this discussion was 1/2/2019 you set a target.”[57]Mrs Tohou replied “no I asked Melanie last month.” Shortly afterwards Mrs Tohou said “the day I am talking about, I went to Melanie, JC [Ms Cherian] told me she wanted to see me. My deputy said you want casual. I said listen to me Melanie, I don’t want to do casual hours. I said Melanie I applied for permanent job I have to be careful, what happens tomorrow, and you don’t have shifts. If you want, I don’t want casual can we reduce my hours….”.[58]In those minutes Mrs Tohou is not shown as making any reference to a discussion with Ms Cherian in the week before 20 November 2019.[59]Thus on balance we prefer the evidence of Ms Cherian in this respect.[60]It is accepted by the respondent that Mrs Tohou asked Ms Brodison about the possibility of changing her hours to start at 9 a.m. instead of 7:30 a.m. because of her daughter’s need to take medication but Ms Brodison’s evidence is that conversation took place in 2018. The request was declined because the respondent needed staff for the whole shift to meet the resident’s needs, particularly at mealtimes. Ms Brodison says that she offered Mrs Tohou the opportunity to do half late shifts instead that Mrs Tohou declined.[61]Ms Brodison also accepts that there was a discussion with Mrs Tohou shortly before the Stage 3 meeting about reducing Mrs Tohou’s hours or working on a casual basis but at that time, because the Stage 3 meeting was fixed, she said to Mrs Tohou that she needed to go through the Stage 3 process and the panel would decide on the outcome. Ms Brodison denies there was any discussion about Mrs Tohou’s daughter at that time.[62]Again there is little contemporaneous evidence to assist us in deciding whose version of events we prefer. The respondent places weight on the fact that in the Stage 3 meeting Mrs Tohou’s representative stated “fortunately, the situation regarding her daughter’s mental health has improved hugely and she is attending school. In light of medication and in light of this AT’s [Mrs Tohou’s] health is positively moving forward and improving. Her last spell of illness is the flu, I myself have had this, it goes around.”[63]The respondent submits that it is unlikely that Mrs Tohou would have been requesting a change in her hours, because of her daughter’s health, when she met Ms Brodison shortly before the Stage 3 meeting, when at that time her daughter’s health had improved “hugely”. That is a submission that we treat with some caution given that the fact that Mrs Tohou’s daughter’s health had improved does not mean that she did not need to take medication. However, it is noteworthy that, in the meeting, neither the claimant not her representative made reference to needing a variation in hours because of her daughter or referred to that being a cause of absence. If those things were not mentioned in the meeting, that is evidence which suggests that they may not have been mentioned shortly before when Mrs Tohou met Ms Brodison. On the balance of probabilities we prefer the evidence of Ms Brodison.[64]In any event, there is no evidence from which we would conclude that Ms Brodison refused the request to vary hours because of Mrs Tohou’s daughter’s disability.[65]In the course of evidence Mrs Tohou made reference to 3 people who she says were treated more favourably than her. One of them, named Julie, had an ill mother. Mrs Tohou said that she stayed home with her mother for 6 months and then was allowed to continue working. She also referred to another man whose wife was off and who had a huge absence but was allowed to come back. Finally she referred to a lady who was off sick for pregnancy-related reasons for one year, came back to work and was then allowed time off again because she was pregnant. The respondent says, and we accept, that the first two situations would have been dealt with as situations of long-term absence and were therefore different to Mrs Tohou’s. If somebody has one period of long-term absence but then is able to return to work without further absence that person may well not be dismissed. They are in a different position to somebody has a lot of short-term absences. We do not consider that people who have long-term absence are appropriate persons to whom we can compare Mrs Tohou.[66]It is, also, inappropriate to compare Mrs Tohou with somebody she was pregnant. A person who is pregnant is not be treated as if she were sick. The law gives particular protections for people who are pregnant which do not apply to people who are sick.
Conclusions
[67]We give our conclusions by reference to the list of issues, using the same numbering as appears above.[68]In respect of issue 3.1, it is not in dispute that Mrs Tohou was dismissed.[69]In respect of issue 3.2 we accept that dismissal is unfavourable treatment.[70]We must consider whether Mrs Tohou was treated less favourably than somebody else would have been who was in the same circumstances of Mrs Tohou but who was not disabled.[71]We find that the respondent’s focus, through a number of different managers, over a significant period of time was on Mrs Tohou’s absence. The reason for the dismissal was Mrs Tohou’s absence. There is no evidence that any of the respondent’s managers acted in anything other than good faith. Mrs Tohou has not proved any facts from which we could find that a person who was not disabled but had the same absence record as Mrs Tohou did would have been treated any differently to Mrs Tohou.[72]Having heard the respondent’s evidence we are satisfied that the reason for Mrs Tohou’s dismissal was the level of absence she had sustained. On the balance of probabilities it was Mrs Tohou’s absence that motivated Ms Nother to dismiss her, as set out in the letter of dismissal. Had Mrs Tohou been disabled but been able to attend work to an acceptable level we are satisfied that she would not have been dismissed. Likewise we are satisfied that anybody else in Mrs Tohou’s position would have been dismissed, whether they were disabled or not.[73]In respect of issue 4.1, we accept that Mrs Tohou requested a change in working hours from Ms Brodison in the lead up to the Stage 3 meeting, however she did not say that the reason for requesting the change was her daughter’s ill health. We do not accept that Mrs Tohou requested a change in her hours from Ms Cherian at that time (or at all).[74]Mrs Tohou’s request to Ms Brodison in 2019 to change hours did not, on the balance of probabilities, refer her daughter. It was, however, made at a time when she was facing a Stage 3 process. It would have been reasonable, at that Stage, for Ms Brodison to deny any request to change hours until the Stage 3 process had been completed. We accept her evidence that that is what motivated her. Mrs Tohou has not proved any facts from which we could conclude that Ms Brodison declined her request at that Stage because of her daughter’s disability. We find that anybody in the position of Mrs Tohou, whether they had a disabled daughter or not, would not have been allowed to change their hours.[75]Further, and for the sake of completeness, we accept Ms Brodison’s evidence as to the reason why she did not allow a change of hours in 2018, namely that it was necessary for staff to be present for the whole shift, especially around mealtimes. Again there is no evidence that, at that stage, she was motivated by the fact that Mrs Tohou’s daughter was disabled. Whilst Mrs Tohou’s daughter’s disability is part of the relevant factual background and was the reason why Mrs Tohou made the request to change her hours, that alone does not mean that the reason for the refusal was her daughter’s disability.[76]In those circumstances we conclude thata. The claimant was not dismissed because of her disabilityb. The claimant’s request to change her hours was not refused because of her daughter’s disability.[77]Therefore, the claims must be dismissed.