Mrs J Lewis v Secretary of State for Work and Pensions: 1402849/2019

EMPLOYMENT TRIBUNALS

Case No 1402849/2019

Between

Mrs J LewisClaimant

Secretary of State for Work and PensionsRespondent

Before

Employment Judge Gray

In person for claimant

Date 24 October 2022

JUDGMENT

The judgment of the tribunal is that:  The Claimant’s complaint of direct discrimination about the appeal outcome fails and is dismissed.  It is just and equitable to extend time in respect of the Claimant’s direct discrimination complaints relating to matters on and before 21 February 2019.  The Claimant’s application to amend to add 11 complaints of harassment from the period 24 May 2017 to 7 December 2017 is refused.  All other matters remain to be determined and will require appropriate case management.

REASONS

[1]This is the reserved judgment following a preliminary hearing by video lasting 2 days, split to take place on the 5 May 2021 and 21 June 2021. Evidence and submissions concluded at just before 16:30 on the second day so it was necessary to reserve the decision.

[2]The hearing was conducted by the parties attending by consent by video (CVP).

[3]It was held in public in accordance with the Employment Tribunal Rules. It was conducted in that manner because it had been listed as such by the Tribunal to determine the preliminary issues as identified at the case management hearing before Employment Judge Fowell on the 28 January 2020. There was then a further case management hearing before Employment Judge Gray on the 30 April 2020 where this hearing was confirmed (albeit then subsequently adjourned 1 of 15 and relisted and increased to be two days in duration). Day one of this hearing took place on the 5 May 2021 and day two on the 21 June 2021.

[4]The reasons for the split hearing have been set out in the case management order from the first day of hearing.

[5]The second day was confirmed to determine the time limit / jurisdiction point (as detailed below) and the Claimant’s amendment application to include complaints of harassment and victimisation. It was then to confirm the issues, fix and timetable a final hearing and make appropriate case management orders. Time limits (the preliminary issues)1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about any act or omission which took place more than three months before that date (allowing for any extension under the early conciliation provisions – so in this claim any act or omission which took place on and before the 21 February 2019) is potentially out of time, so that the Tribunal may not have jurisdiction.

1.2 This has been listed for preliminary determination by Employment Judge Fowell by a Judge sitting alone.

1.3 The Tribunal needs to consider whether the discrimination complaint was made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates? The outcome of the appeal (April 2019) is within that time period. The preliminary hearing is therefore to decide if the appeal outcome was an act of discrimination. If it is then it can be asserted by the Claimant that her complaint of direct discrimination is an act extending over a period.

1.3.2 It will then need to be determined if there was conduct extending over a period? This issue may well require determination at a full hearing because, if it is reasonably arguable that there was an act extending over a period in line with the Claimant’s confirmed assertion that she made a number of requests in the period August 2018 to April/May 2019, the tribunal must not determine that issue until it has heard all relevant evidence (Aziz v. FDA

[2010] EWCA Civ 304

1.3.3 If the outcome of the appeal is not determined to be an act of discrimination, then the Tribunal can go on to determine as a preliminary issue, whether the claim was made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 2 of 151.3.3.1 Why were the complaints not made to the Tribunal in time?

1.3.3.2 In any event, is it just and equitable in all the circumstances to extend time?

[6]The relevant direct discrimination complaint was confirmed and recorded in the agreed list of issues as follows: Direct disability discrimination (Equality Act 2010 section 13)1.1 The Claimant describes herself as a disabled person.

1.2 Did the Respondent do the following things: 1.2.1 Refuse to classify the Claimant’s absence following an alleged verbal assault on the 1 June 2017 by a work colleague as “Assault - Work Related” absence at various points from the Claimant’s initial request to do so (August 2018) to the appeal outcome (April 2019), despite its procedure/policy requiring it to be classified in this way.

1.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant says she was treated worse than a hypothetical comparator.

1.4 If so, was it because of disability?

1.5 The Respondent asserts that there was no such entitlement as the Claimant alleges and that the procedure/policy meant that a work place assault by a customer was covered but not by a work colleague, so its refusal to classify it in that way was not an act of direct discrimination.

1.6 The Respondent also asserts that the appeal outcome (that the Claimant says was the most recent act of discrimination) cannot be because of the Claimant’s disability, because it was upholding the grievance outcome, which itself followed the input from HR as to what the procedure/policy says. This suggests that the Claimant needs to prove that the “someone somewhere” who referred to it being unacceptable customer behaviour that qualified for the “Assault Work Related” classification, did so because of her disability, and that the individuals who agreed with this at the grievance and appeal stages did so because of her disability.

[7]The Claimant’s application to amend to add complaints of harassment and victimisation was to be determined at the second day of this hearing. Case management orders about this were made at the first day of hearing as follows: 3 of 15 Further information about the application to amend 1. The Claimant must write to the Tribunal and the other side by 2 June 2021 with the following further information: 1.1 Details of her application to amend her claim to add complaints of harassment and victimisation, providing the following details:1.1.1 Why she makes the application at this time and not before;

1.1.2 In respect of the complaint of harassment related to disability (Equality Act 2010 s. 26) what things does the Claimant say the Respondent did that was unwanted conduct relating to her disability. The Claimant needs to confirm the thing, the date when it happened, who at the Respondent she says was responsible for it and who, if appropriate, was a witness to it.

1.1.3 In respect of the complaint of victimisation (Equality Act 2010 s. 27) what does the Claimant say was the protected act she did in accordance with section 27(2) of the Equality Act 2010? When does she say she did it and who at the Respondent does she say was aware of it and why.

1.1.4 What does the Claimant say the detriments are that the Respondent subjected her to because of her protected act? The Claimant needs to confirm the thing, the date when it happened, who at the Respondent she says was responsible for it and who, if appropriate, was a witness to it. 2. The Respondent must write to the Tribunal and the other side by 16 June 2021 with any comments it wants to make about the Claimant’s application.

[8]For reference on the first day of this hearing I was provided with:a. Agreed PDF hearing bundle of 333 pages (including index);

b. Statement of Claimant;

c. Statement of Catherine Johnson on behalf of the Respondent – who heard the appeal of the Claimant’s grievance;

d. A chronology from the Claimant; and

e. A document from the Claimant sent on the 28 April 2021 at 9:57 with the title “Failure to make reasonable adjustments”.

[9]For reference on the second day of this hearing the Tribunal was helpfully provided with the following as attachments to an email, so that all documents necessary were readily available and up to date for the second day of hearing:a. Updated Final Joint Bundle for the Preliminary Hearing i. this includes the latest Record of a Preliminary Hearing and correspondence between the Tribunal and the Parties since the last Preliminary Hearing on 5 May 2021;

b. Claimant’s Chronology;

c. Witness Statement of Janet Lewis (Claimant);

d. Witness Statement of Cat Johnson;

e. Claimant’s Further Information regarding her application to amend the claim; and 4 of 15

f. Respondent’s response to application to amend the claim.

[10]The Claimant had also submitted a copy of a letter from one of her treating Doctors dated 14 June 2021.

[11]It was confirmed at the start of the second day that the matters to be determined were:a. Whether the outcome of the appeal was an act of direct discrimination because of the Claimant’s disability.

b. If yes, whether that was part of conduct extending over a period, and if no, whether the complaint of direct discrimination was made within a further period that the Tribunal thinks is just and equitable.

c. The Claimant’s amendment application.

The Facts

[12]So, to the findings of fact relevant to the first and second issues. I have heard from the Claimant. For the Respondent I heard from Mrs Johnson.

[13]It is for the Claimant to prove (on the balance of probability) facts from which the Tribunal could conclude that the Respondent (through the actions of Mrs Johnson) had committed an unlawful act of discrimination. The alleged act is that Mrs Johnson refused to classify the Claimant’s absence following an alleged verbal assault on the 1 June 2017 by a work colleague as “Assault - Work Related” absence, because of the Claimant’s disability.

[14]I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

[15]The relevant policy/procedure is the “Sick Leave Procedures for Managers”. Extracts were contained in the bundle and the relevant page of the bundle is 75, and in particular paragraphs 6.37 to 6.40 of the document. In paragraph 6.37 there is a link to “Guidance on the Health and Safety Managing Incidents site”. Mrs Johnson confirmed that clicking the link took you to a web page headed up “Unacceptable Customer/Claimant Behaviour guidance” (see pages 77A and 77B).

[16]The Claimant accepted during her cross examination that there is no documentary evidence or evidence in her witness statement that supports that Mrs Johnson decided what she did because of the Claimant’s disability. The Claimant confirmed that she would seek to put this motive to Mrs Johnson in cross examination.

[17]In her oral evidence Mrs Johnson confirmed and maintained that the Claimant’s health and disability issues played no part in her decision. Mrs Johnson confirmed that her focus was on the interpretation of the policy/procedure.

[18]Mrs Johnson, as set out in her witness statement, says she followed the terms of the policy (as interpreted by reference to the Guidance linked to the policy document – page 75 links to pages 77A and 77B) and elaborated in her oral evidence that she had personally seen the policy being followed in that way as well. 5 of 15

[19]To make sure though that her understanding remained correct and current Mrs Johnson requested advice from HR and this advice is dated 21 March 2019 (see page 210) and received before the appeal outcome letter dated 29 March 2019 (at pages 218 and 219). That advice confirms what Mrs Johnson says she believed … “6.37 to the health and safety incident management site takes the reader to guidance for unacceptable customer behaviour so it is clear this relates to incidents involving customers and not between departmental employees.”.

[20]I accept the explanation provided by Mrs Johnson for the decision she made.

[21]In respect of the factual matters concerning the time limit jurisdictional issue the Claimant addresses these in paragraphs 78 to 86 of her witness statement.

[22]From that and the oral evidence given by the Claimant at the hearing I find as fact that the Claimant not making a complaint to the Tribunal before she did is explained by a combination of factors, as follows:a. her deteriorating health at the relevant time (2018/2019) (as the Claimant confirms in paragraphs 81 and 84 of her evidence).

b. her lack of knowledge of Tribunal matters and time limits (as set out in paragraphs 83 and 84 of her witness statement). I accept that the Claimant had no knowledge about the way that Tribunal proceedings were conducted until her google search she says she undertook in the period of mid to end of May 2019 and then her contact with ACAS culminating in her commencing early conciliation through ACAS on the 21 May 2019. It also appears to be around then that applicable three-month time limits are confirmed to the Claimant. The Claimant in her oral evidence explained that the references made by her TU representative at the 22 January 2019 meeting (see paragraph 83 of the Claimant’s statement and page 144 of the bundle) to the Respondent’s decision not standing up in Tribunal and as at paragraph 83 of her statement that the … “TU representative said that she felt that I was ‘too fragile to go to a tribunal’ at that time and that we would look at it again at the end of the process.”, that she did not understand them to mean she had to go to the Tribunal at that point and in any event she says she could not cope and couldn’t do it at that time.

c. Her belief that matters could be resolved by completing the internal procedures (paragraphs 80 and 84).

[23]The Claimant did not accept, as put to her in cross examination, that she could have acted before she did as she was not prevented from conducting her research into Tribunal claims at an earlier point. I however accept that the combination of factors as evidenced by the Claimant are reasons for her not acting before she did, including investigating matters before she did.

[24]The Respondent’s position on the question of time limits is, it submits, that there is no evidence to find that there is connected conduct and in respect of just and equitable that the Claimant will not be able to evidence the allegations of direct discrimination, the Respondent submits they are highly likely to fail, and therefore there is prejudice to the Respondent as it will carry expense in having to defend complaints that have no merit.

[25]For completeness the communication of the refusal of the Claimant’s request to reclassify her absence as assault related, before the appeal outcome, was on the 6 February 2019 (see page 153). A summary of the relevant law concerning the discrimination complaint 6 of 15

[26]Direct discrimination

[27]The complaint against Mrs Johnson is alleging discrimination on the grounds of a protected characteristic 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 discrimination.

[28]The protected characteristic relied upon is disability as set out in section 4 and 6 of the EqA. It is not in dispute that the Claimant was a disabled person at times material to this complaint.

[29]For a claim for direct 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.

[30]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.

[31]Considering the relevant case authorities of: a. Madarassy v Nomura International Plc

[2007] ICR 867

CA and Ayodele v Citylink Ltd and Anor CA [2017];

[32]In Madarassy, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant 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 act of discrimination”. The Court of Appeal has also confirmed that Igen Ltd and Ors v Wong and Madarassy remain binding authority in Ayodele.

[33]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.

[34]These cases are taken as guidance, and not in substitution for the provisions of the relevant statutes.

[35]Time Limits

[36]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within 7 of 15 section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.

[37]From the 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings. The Claimant obtained a valid ACAS certificate for these proceedings.

[38]I have considered the principals from the cases of British Coal v Keeble

[1997] IRLR 336

EAT; Robertson v Bexley Community Service

[2003] IRLR 434

CA; and London Borough of Southwark v Afolabi

[2003] IRLR 220

CA;

[39]I note the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:a. The length of and the 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 parties co-operated with any request for information.

d. The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.

e. The steps taken by the claimant to obtain appropriate professional advice.

[40]I note that the Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).

[41]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds 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 complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule". The Decision

[42]With regard to the complaint for direct discrimination about the appeal outcome that complaint will fail unless the Claimant has been treated less favourably on the ground of her disability than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The Claimant needs to prove some evidential basis upon which it could 8 of 15 be said that this comparator would not have suffered the same allegedly less favourable treatment as the Claimant.

[43]About this complaint I find that no facts have been established upon which the tribunal could conclude (in the absence of an adequate explanation from the Respondent), that an act of discrimination has occurred. In these circumstances the Claimant's complaint of direct discrimination, concerning the appeal outcome by Mrs Johnson, fails and is dismissed.

[44]With this finding I do not need to consider the connected conduct question. Instead I need to consider whether the direct discrimination complaint was made within a further period that the Tribunal thinks is just and equitable.

[45]Considering the following factors which appear relevant:a. The length of and the reasons for the delay. I accept the Claimant’s evidence as to there being a combination of factors for her not acting before she did, including investigating matters before she did. The last act of direct discrimination complained about before the appeal would be the decision dated 6 February 2019, so this is just over 2 weeks out of time (based on acts on or after the 22 February 2019 being in time).

b. The extent to which the cogency of the evidence is likely to be affected by the delay. The Respondent has not submitted that the cogency of the evidence will be affected. This is understandable as matters were raised with the Respondent through the internal procedures and it will need to present similar evidence in any event to address the Claimant’s complaints of unauthorised deductions from wages / breach of contract.

c. The promptness with which the Claimant acted once she knew the facts giving rise to the cause of action. It would appear to be in a matter of days from the middle of May 2019 that the Claimant understood the need to act and then acted.

d. As to the merits of the Claimant’s direct discrimination complaints (other than the appeal decision) this has not been directly challenged by the Respondent by way of an application for strike out or a deposit order, and it is not unusual for discrimination claims to require all evidence to be considered before merits can be fairly ascertained. Further, the Respondent will need to present similar evidence in any event to address the Claimant’s complaints of unauthorised deductions from wages / breach of contract.

[46]I find that the Claimant has presented evidence to explain the reasons for the delay and I do not find that the Respondent has been prejudiced by the delay. For these reasons I find that it is just and equitable to extend time for the direct discrimination complaints.

[47]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are summarised at paragraphs 11a and b; the findings of fact made in relation to those issues are at paragraphs 12 to 25; a concise identification of the relevant law is at paragraphs 26 to 41; how that law has been applied to those findings in order to decide the issues is at paragraphs 42 to 46. The Amendment Application 9 of 15

[48]The Claimant’s further information document about her amendment application consisted of 8 pages and a further 14 pages of attachments. The document confirmed that the Claimant now only applied to add complaints of harassment related to the protected characteristic of disability and no longer applied to add complaints of victimisation (see page 8 of 22). It was not clear from the document though what the Claimant asserted as harassment complaints and what was provided as background narrative.

[49]Therefore, at the commencement of the second day of hearing time was taken to confirm with the Claimant what from her document she says are complaints of harassment she applies to add to the current claim.

[50]Through this process it was confirmed that Claimant seeks to add the following 11 allegations of harassment which she says took place between 24 May 2017 to 7 December 2017:a. On or about 24/5/2017, POMS called me to say that he was disappointed that I hadn’t talked to him about how I was feeling. I reminded him that I had already done so and asked for support. He stated that he would arrange a meeting. This did not happen.

b. 30/5/2017: I met POMS at a conference event. He told me that I ‘hadn’t done myself any favours’ by talking to my mentor and asked me how I thought my actions had made him feel. I explained that I really needed the support that I had asked for previously and that, emotionally, I was at the end of my tether and found his approach to be offensive. He confirmed that he would take my request forward. This did not happen.

c. 1/6/2017: I was the subject of a prolonged, verbal assault by Sally Guyett, a member of my team. This took place in an open plan office in the presence of a significant number of staff. I tried to resolve the situation by asking to speak privately with Sally but things deteriorated further. Sally refused my request and stated loudly that she was never going to speak with me privately again. I returned to my desk and it was clear that I was extremely distressed. Nobody did anything to stop the assault and subsequently, nobody asked me how I was. After a while, I tried again to achieve a resolution but the outcome was a further verbal assault. I telephoned my line manager to explain what had happened, how I felt and that I could not cope with my situation any longer. I asked again for support and was assured that a meeting would take place. This did not happen.

d. On or about 28/6/2017: I had a 1-1 meeting with POMS. I was visibly distressed, was crying continually and told him that my situation was so bad that I felt that the only option for me was to leave work. I also raised the OH outcome report and recommendations and that I wished to address these with him. He did not take any action to address this or that I had said that my mental state was so bad that I felt the only solution was to leave. This made me feel that it was all my fault. I had never felt that way before at work, it was offensive and humiliating.

e. On or around 10/8/2017, I had a further 1-1 meeting with POMS. I was emotionally distraught, once again saying that I felt that my only way out was to leave DWP. I raised my concerns about the fact that the OH recommendations hadn’t been considered or implemented and at that point POMS said that this had been done by the referring manager. It had not and I was surprised about his response as I had spoken with him about this at my June 1-1. I believe that I was made to feel at fault, it was unsettling and I felt diminished. 10 of 15

f. On or around 11/8/2017: I attended a management team meeting and broke down during the meeting. POMS appeared to be quite agitated and said that one of my colleagues had a really good track record with team management and that he would give him my team to manage. This was totally humiliating. Over many years, I had demonstrated that I was able to manage teams successfully. I had been asking for help for some time and he had been aware of my distress. Yet, he had done nothing to support me. It was said in the presence of all my peers. It was degrading and humiliating. I began my first period of sickness on the afternoon of that day.

g. During the next two weeks, POMS maintained contact with me but although I told him that I was too unwell to work, he continued to raise the option of working from home. During this period, he also raised that I could consider applying for Actuarily Reduced Retirement as I was finding work difficult to manage. I was so unwell that I think it fair to say that I thought that this could be my ‘escape route’ although there was an element of shame about not being able to cope and that my manager was effectively suggesting a way to manage me out. I am sure that this approach couldn’t have been raised during a discussion between POMS and his manager ET. I say this as DWP’s focus as a Disability Confident Leader, is to support their staff (and customers) in managing their health conditions in such a way that they are able to return to work. No action was taken to support me. This was humiliating and offensive.

h. 25/8/2017: I had asked for a 14 day review of my absence as I wanted to make a return to work as soon as possible. I wanted to discuss and agree the support that could be put in place for me. I went to this meeting fully prepared to discuss what I felt I needed by way of support. During the meeting, I stated that I felt that the absence of support that I had requested on several occasions had contributed to my current sickness absence. POMS said that I was being unfair to him and he appeared to be irritated, defensive and raised his voice. I stressed that it was not my intention to upset him, I just wanted to get back to work. Shortly after this, I asked if we could conclude the meeting as we hadn’t made any progress in discussing a ‘support package’ and I was exhausted. Later that day, I emailed my TU representative as I felt this was the only way forward. When I went into the meeting, I was certain that there would be a positive outcome for me but it was just humiliating.

i. 1/11/2017: I returned to work. No one from my team welcomed me back to work, asked me how I was and I was not included in conversations. I felt isolated and struggled to remain at work. At that point, my mental state was such that I thought that this was what I deserved as I had raised a formal complaint against one of them. However, no formal action was ever taken to address my complaint. This made me feel totally worthless, stripped me of my dignity and felt hostile.

j. 6/12/2017: I had discovered, a few days previously, that I had been excluded from the Fraud community’s Christmas celebration. My mental health deteriorated further and felt that I had to move to a different work space. This exclusion made me feel unworthy, intimidated and utterly worthless. Being excluded from any social event is difficult to deal with but to be excluded during the Christmas period was awful. I could not face seeing everyone leaving for the Christmas lunch while I remained at my desk. 11 of 15

k. I moved and contacted POMS by email (copying SF in), stating that my situation was intolerable – [7/12/2017] - This email and POMS response are on pages 266-267.

[51]The Claimant sets out in her amendment application document that: “I did not make this claim before now as I have very little knowledge of how the Tribunal claim process is conducted. When I first made my claim in 2019, I was in very poor health, with a diagnosis of Anxiety and Depression, with features of PTSD. I still have this diagnosis, although my symptoms are currently better managed through therapy and medication. In support, I am attaching an OH report dated 17/4/2018, Psychiatrist reports dated 28/1/2019, 18/7/2019 and 23/10/2019. My psychiatrist is currently on leave but is due to return to work on 9/7/2021. My community psychiatric nurse has messaged him, asking him to give an up to date report on my state of health. My TU representative did not give me any information about making my claim to the Tribunal. During recent months I have had 2 (or 3) telephone conversations with a representative of the CAB about my claim to the Tribunal.”

[52]The Respondent expressly addresses the identified complaints at paragraphs 11 to 13 of its written response: “11. In respect of the allegations made between the 23rd May 2017 and the 16th January 2018, the Respondent submits that they are brought significantly out of time (some 3.5 - 4 years) and do not in any way relate to the absence related issue which appears to form the bulk of the Claimant’s application to amend. The allegations set out in this period of time are entirely new factual allegations involving different people to the absent related issue and seek to advance an entirely new type of discrimination claim. Furthermore, there is simply no compelling reason as to why the Claimant could not have brought these claims within three months of them happening and/or at the latest in her original ET1 so as to extend time on just and equitable grounds so long after the events of which she complains.12. The Respondent submits that notwithstanding the fact that the Claimant was suffering with her mental health, the Claimant could and should have brought these claims earlier. Indeed, apart from a period of absence between the 11th August 2017 to the 31st October 2017 due to depression, the Claimant was in work and seemingly capable of pursuing a claim. Upon commencing a period of absence in January 2018, the Claimant was able to apply for Injury Leave Benefit and Ill Health Retirement as well as raise a grievance in respect of the absence related issue and subsequently appeal the grievance decision. That being so, it is submitted that there can be little doubt that she was also capable of pursuing a harassment claim if she so chose. In addition, the Claimant was assisted by her Trade Union as far back as August 2017 (see her application to amend under paragraph commencing 25/8/2017) from whom she could and should have sought advice and assistance for the purposes of bringing a claim to this Tribunal.

13. In balancing hardship to the parties, it is submitted that the Respondent would clearly be prejudiced if this application were permitted. The issues raised are historical and involve a number of different people (at least 7 identified in the application) all of whom will now have obvious difficulty in remembering the specifics of what the Claimant alleges. In particular, her line manager during this period of time, Phil O’Meara Sheilds (referred to as POMS), was diagnosed with 12 of 15 prostrate cancer during the period concerned and as a result of his treatment has suffered quite significantly with his memory and is now also partially retired. It cannot be ignored that the Respondent may well face difficulties in obtaining all relevant documentation pertinent to the issues now raised.”

[53]The parties were given opportunity during their oral submissions to address me on the amendment application.

[54]A summary of relevant law to the amendment:

[55]An Employment Tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon

[1994] IRLR 124

). If a case is not before the Tribunal, it needs to be amended to be added.

[56]In Cocking v Sandhurst (Stationers) Ltd and anor

[1974] ICR 650

NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim or adding or substituting respondents. The key principle was that in exercising their discretion, Tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore

[1996] ICR 836

EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics

[2005] IRLR 201

CA.

[57]The EAT held in Selkent: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J as he then was explained that relevant factors would include:a. The nature of the proposed amendment - applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action; and

b. The applicability of time limits - if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended; and

c. The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. 13 of 15

[58]On the applicability of time limits and the “doctrine of relation back”, the doctrine of relation back does not apply to Employment Tribunal proceedings, see Galilee v Commissioner of Police for the Metropolis UKEAT 0207/16/RN.

[59]I have also considered the recent EAT decision of Judge James Tayler in Vaughan (appellant) v Modality Partnership (respondent)

UKEAT/0147/20/BA

. That finds … “A practical approach should underlie the fundamental exercise of balancing the hardship and injustice of allowing as against refusing the amendment. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim.”.

[60]The decision on the amendment application

[61]The Grounds of Claim (see pages 14 to 17 of the bundle) make no reference to these matters (the time period in the Grounds of Claim runs from August 2018), and no reference to a complaint of harassment so these complaints of harassment are new complaints that the Claimant applies to add.

[62]The Claimant’s amendment is a substantial alteration, pleading a new cause of action.

[63]These new complaints are out of time. The last allegation was the 7 December 2017 so the complaint should have been issued in the first quarter of 2018, allowing for any ACAS conciliation extension.

[64]Although I have accepted the Claimant’s position in respect of the just and equitable considerations concerning her direct discrimination complaints, I do not find that they apply to the amendment application.

[65]The reason for this is that the Claimant’s own evidence is that she was aware of the Tribunal procedure and time limits from May 2019. Further, there were two case management hearings before this preliminary hearing and the Claimant did not raise the amendment matters, she now raises. The medical evidence the Claimant attaches to her application of amendment covers up to October 2019 and does not suggest the Claimant was unable to partake in Tribunal matters or raise complaints. The most recent medical correspondence dated 14 June 2021 does not assert that the Claimant was impaired from making an amendment application before she did.

[66]Further, I accept there will be significant prejudice to the Respondent, and it has been prevented and inhibited from investigating the claim while matters were fresh. The Claimant has an existing claim to be determined which does not rely 14 of 15 on the harassment allegations so still has a route to remedy if her claims are proven.

[67]As to the timing and manner of the application, as already noted, the Claimant was able to submit a claim on the 4 July 2019, with ACAS conciliation taking place between 21 May 2019 and 12 June 2019. The Claimant was able to take part in two previous case management hearings, one before Employment Judge Fowell on the 28 January 2020 and the other before me on the 30 April 2020. Despite this the amendment application was not formerly submitted until after the first day of this preliminary hearing (so after 5 May 2021). This is nearly two years after the claim was commenced. I accept the submissions of the Respondent that the delay may have put it in a position where evidence relevant to these new issues is no longer available or is rendered of lesser quality than it would have been earlier. This is particularly so with reference to the assertions made by the Respondent about the health of “POMS”, which is more than just supposition.

[68]For these reasons I refuse the Claimant’s amendment application.

The facts

[69]About the then agreed appointment of TS to the role of full-time line manager, the Claimant confirmed in cross examination that she has no complaint about the care TS gave her. She stated that it was wonderful, he was kind, he never failed to do the things he said he would do.

[70]The Claimant is then signed off work from the 16 January 2018 to the end of her employment on the 26 June 2018 for ill health retirement.

[71]The Claimant stated about TS that he was brilliant, he was fabulous, the thing TS got stuck with is the classification. This relates to retrospectively re-defining the Claimant’s sickness absence as “Assault – work related”. This relates to the 12 of 29 Claimant’s complaint of direct disability discrimination and her complaint for unauthorised deductions / breach of contract.

[72]As the Claimant sets out in her witness statement (page 8) it is during August 2018 that she identified from the DWP Sick Leave Procedures for Managers that she could be entitled to a period of extended paid sick leave as she had suffered an injury as a result of an assault at work.

[73]It is for the Claimant to prove (on the balance of probability) facts from which the Tribunal could conclude that the Respondent had committed an unlawful act of discrimination. The alleged act is that the Respondent refused to classify the Claimant’s absence following an alleged verbal assault on the 1 June 2017 by a work colleague as “Assault - work related” absence at various points from August 2018 until the Grievance outcome (February 2019).

[74]The person responsible for this is TS. The evidence that the Claimant relies upon to support it was explored in the cross examination of her. The Claimant maintained during cross examination that she could think of no other reason for the decision TS made, that was her belief and that she would be putting the matter to TS in cross examination of him. The Claimant, despite being reminded of this, did not put the specific allegation to TS.

[75]It is clear from the evidence that we have been presented that there are different views about the fairness of the availability of the “assault at work” sick pay benefit, and what was expressed at various points as to why it did not apply to the Claimant. However, it is clear that the answer has always been no. In short, the Claimant did not satisfy all the ingredients for her absence to be classified as “Assault – work related” and without that classification applying to her sick leave she did not have an entitlement to benefit from full pay while off sick.

[76]As TS acknowledged in cross examination, the advice given was it was a no, it was always a no and he followed that advice.

[77]The relevant part of the Sick Leave Procedures for Managers / DWP Intranet is at page 567 of the bundle.

[78]Clause 6.37 says … “6.37 An assault is defined as an act of aggression which can be either physical or verbal. To be regarded as an assault on duty the assault must be clearly connected with their work for the Department, whether or not the employee was on duty at the time. Guidance can be found on the Health and Safety Managing Incidents site.”.

[79]Clause 6.38 refers to the need for managers (amongst other things) to ensure the incident is recorded and an accident report completed, where the employee has not done so.

[80]Clause 6.39 confirms that a service request to Employee Services should subsequently be completed to amend the sickness record appropriately. 13 of 29

[81]Clause 6.40 … as “long as the absence is recorded on SOP as “Assault – work related” the employee will receive full pay…”

[82]It is not in dispute that when the link in clause 6.37 is clicked on it takes you to a document titled … “Unacceptable Customer/Claimant Behaviour guidance” which is at pages 574 to 628 of the bundle.

[83]We were also referred to the Civil Service Management Code (pages 633 to 642). In particular page 636 which at paragraph 2 notes: … “… Where departments and agencies are given direction to determine terms and conditions, the Code sets out the rules and principles which must be adhered to in the exercise of those discretions. It does not of itself set out terms and conditions of service.”. Also, paragraph 4 … “This delegation… does not remove the obligation on departments and agencies to submit to the Cabinet Office proposals or arrangements which are contentious, or raise questions of propriety.”.

[84]Further, page 640 … “9.6 Absence due to injury, Disease or Assault at Work”, and also page 641 paragraphs 9.6.5 and 9.6.6, which confirm where an absence is due to an assault, and no claim for damages is made staff must … received full pay …”.

[85]The interaction of these provisions is addressed by the DWP in correspondence to the Claimant as can be seen at pages 706 and 718 of the bundle. Both confirm that the Code relates to physical assault, not verbal and that the DWP interpretation goes further by giving cover for verbal assaults, but the assaults need to be linked to conduct by a customer/DWP claimant. We understand that to reflect the front-line contact DWP employees can have with customers and DWP claimants in what may be stressful circumstances. It is understood to be part of the management of a potential Health and Safety risk while carrying out their roles. We accept the rationale presented to us in the statement of DK at paragraphs 22 to 26. Although DK did not attend to be cross examined about her statement, we have not been presented with evidence to say that the rationale she presents is not that held by the Respondent.

[86]The Claimant in her evidence relies in the main on an email from David Harrison (a HR case worker) which is part of an email trail at pages 246 to 254. We have considered carefully what he says. In short, he is expressing an opinion on what might be a rationale for interpreting the clause in a broader way, i.e., to allow for the “Assault – at work” classification to be applied to all assaults. DK presents her rationale in response (see page 247) which is consistent with what she states in her statement. The Health and Safety rationale is also referred to by Colin Herring Head of Employee Policy Advice Team as can be seen as extracted into an email at pages 314 to 316.

[87]TS explains in paragraphs 21 to 42 of his witness statement why he did what he did about the assault at work classification. He was also cross examined about his actions. From that it is clear that TS is seeking advice on the matter, includes the Claimant in that process and adheres to the advice he is given. He did not believe he could change the Claimant’s sickness classification without authorisation to do so. He was advised the Claimant did not qualify to be classified as sick due to 14 of 29 “Assault – work related”. We accept the reason given by TS. He has conducted his enquires in an open manner and as he confirmed in cross examination, he would not have acted differently for anyone else. As already noted, the Claimant did not want to put to TS that he had done what he did because of her disability.

[88]As to the unauthorised deductions / breach of contract claim it is for the Claimant to prove on the balance of probability that full sick pay was properly payable to her under a contractual provision. Even if we find as a matter of fact that the full sick pay benefit was a contractual benefit (noting from the written submissions of Respondent’s Counsel that … “it appears clear from Dawn Kane’s witness statement (paragraphs 17 & 18) that the clauses within the procedure were incorporated to give effect to the instructions set out in the civil service management code (CSMC) which relate to an assault at work (see paragraph 9.6.5, page 640). The CSMC does not of itself set out the terms and conditions of service of individual civil servants, it provides a framework of instructions to departments by which they set terms and conditions of employees through delegation (see 636).”), it is still necessary for the Claimant to show her entitlement to it. That requires the Claimant to be classified as being sick for reason of “Assault – at work”).

[89]To be given that classification a number of ingredients must be met, including the completion of an accident report (as already noted, the Claimant herself, as of 1 November 2017 (page 110) did not state the absence was due to assault and she wanted to hold off on completing an accident report). The Claimant therefore seeks a reclassification of her absence retrospectively in August 2018. Further, the assault has to be because of a customer or DWP claimant. Although not expressly stated in clause 6.37, the link to the relevant policy is there, and as TS confirmed in cross examination, that link is there by intent. It fits the health and safety rationale the Respondent has presented evidence about. We accept that our analysis of this matter has benefited from being able to see the full and final explanation on the clauses’ interpretation, that followed a variety of different explanations by the Respondent. It is therefore understandable why the Claimant has sought to challenge the matter.

[90]In respect of the factual matters concerning the time limit jurisdictional issues in respect of the reasonable adjustments complaint the Claimant addresses these at page 6 of her witness statement. In short, the Claimant relies upon the same explanation that she did in respect of the direct discrimination complaint, where it was found to be just and equitable to extend time. This includes her wanting to resolve matters internally through the grievance process and becoming aware of time limits when she contacted ACAS. Also, the state of her health at that time. We note though that these are matters specific to the direct discrimination complaint, as it was that which was the subject matter of the grievance, not the complaint about reasonable adjustments. 15 of 29 The Law Disability

The Law

[91]As set out in section 6 and schedule 1 of the Equality Act 2010 a person P has a disability if she 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.

[92]It is not in dispute in this claim that the Claimant is a disabled person. There is a dispute as to from when, with the Claimant asserting from some point in 2005/2007 and that the Respondent had all the requisite knowledge for the complaints made by the 22 June 2017. The Respondent asserts it would all be from December 2017. This has an impact on the reasonable adjustment complaint, but not the direct disability discrimination complaint which relates to a period August 2018 to February 2019. Direct discrimination

[93]This complaint is alleging discrimination on the grounds of a protected characteristic 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 discrimination.

[94]The protected characteristic relied upon is disability as set out in section 4 and 6 of the EqA. It is not in dispute that the Claimant was a disabled person at times material to this complaint.

[95]For a claim for direct 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.

[96]As we are reminded by Respondent’s Counsel, direct discrimination claims require a comparison as between the treatment of different individuals i.e., individuals who do not share the protected characteristic in issue. In doing so there must be no material difference between the circumstances relating to each individual (section 23 EqA). The Tribunal therefore must compare 'like with like'.

[97]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.

[98]As summarised in the written submissions of Respondent’s Counsel … “In respect of the burden of proof, there is a two-stage process for analysing the complaint. 16 of 29 At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. In Madarassy v Nomura International plc

[2007] IRLR 246

'could conclude' must mean 'a reasonable tribunal could properly conclude' from all the evidence before it which in turn constitutes a prima facie case. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons. In other words, only at the second stage does the Respondent bear any burden (see Efobi v Royal Mail Group Ltd

(2021) ICR 1263

which confirmed that the reverse burden of proof remains good law under the EQA 2010).”.

[99]Considering Madarassy, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant 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 act of discrimination”.

[100]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint. Reasonable adjustments

[101]Sections 20 and 21 of the EqA state:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ………….. 17 of 29 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[102]Paragraph 20(1) of Schedule 8 to the EqA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know and could not reasonably be expected to know that a disabled person has a disability and is likely to be placed at a disadvantage by the employer’s PCP, the physical features of the workplace, or a failure to provide an auxiliary aid — paragraph 20(1)(b).

[103]The Tribunal must identify:103.1 The provision, criterion or practice applied by or on behalf of the Respondent;

103.2 the Identity of any non-disabled comparators (if appropriate): and

103.3 the nature and extent of the substantial disadvantage suffered by the Claimant. (Environment Agency v Rowan

2008 ICR 218

)

[104]The identification of the applicable PCP is the crucial first step that the Claimant is required to take. If the PCP relates to a procedure, it must apply to others than the Claimant. Otherwise, there can be no comparative disadvantage. Only once the Employment Tribunal has gone through the steps in Rowan will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice on Employment (2011).

[105]The test of reasonableness imports an objective standard, Maurice Kay LJ in Smith v Churchills Stairlifts plc

[2006] IRLR 41

at paragraph 45.

[106]In HM Prison Service v Johnson

2007 IRLR 951

, it was made clear that it is insufficient for a Claimant to simply point to substantial disadvantage caused by a PCP and then place the onus on the employer to think of what possible adjustments could be put in place to ameliorate the disadvantage.

[107]In Project Management Institute v Latif

2007 IRLR 579

, Mr Justice Elias (as he then was) stated as follows: “In our opinion, the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly 18 of 29 be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”.

[108]We accept as submitted by Respondent’s Counsel that the Claimant is not under a duty to show how the employer had failed to comply with a reasonable adjustment, but the law requires her to raise the issue, in broad terms at least, as to whether a specific adjustment should have been made. If a Claimant is successful in doing so the burden then shifts to the Respondent to show that the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make.

[109]Further, as submitted … “17. In respect of the reasonableness of the adjustments proposed, an employer is not required to take disproportionate measures and the focus must be on the practical result of the measure/s that can be taken. In considering what is reasonable the tribunal must do so objectively (see Smith v Churchills Stairlifts Plc

2006 ICR 524

). There will be a range of factors relevant to this question although the tribunal are not bound to take account of specific factors in every case. The factors listed in the EHRC Employment Code are always of assistance (see paragraph 6.23 of the Code). It should be remembered that in some cases there are simply no reasonable adjustments that can be made which will alleviate the disadvantage identified, that the duty concentrates on outcome not process and that consultation per se is about process and does not constitute an adjustment (see Owen v Amec Foster Wheeler Energy Ltd (2019 ICR 1593).”. Time limits

[110]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.

[111]We note the principals from the cases of British Coal v Keeble

[1997] IRLR 336

EAT; Robertson v Bexley Community Service

[2003] IRLR 434

CA; and London Borough of Southwark v Afolabi

[2003] IRLR 220

CA;

[112]We note the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:112.1 The length of and the reasons for the delay. 19 of 29

112.2 The extent to which the cogency of the evidence is likely to be affected by the delay.

112.3 The extent to which the parties co-operated with any request for information.

112.4 The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.

112.5 The steps taken by the claimant to obtain appropriate professional advice.

[113]We note that the Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).

[114]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds 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 complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule".

[115]Section 123(3)(a) of the EqA 2010 provides for conduct that extends over a period to be treated as being done at the end of that period.

[116]Section 123(3)(b) of the EqA 2010, failure to do something, is to be treated as occurring when the person in question decided upon it. Where there is no evidence to the contrary, s.123(4) of the EqA 2010 provides a default means by which the date of the ‘decision’ can be identified, either when there is an inconsistent act or alternatively the expiry of the period in which the employer might reasonably have been expected to do it.

[117]The identification of the period in which the employer might reasonably have been expected to comply with its duty to make reasonable adjustments (if established) should be taken from the point of view of the Claimant, having regard to facts known or which ought reasonably to have been known by the Claimant at the relevant time. see, Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

at paragraph 14. As we are reminded by Respondent’s Counsel in Abertawe it was found that the duty to make adjustments arises as soon as the employer is able to take steps which it is reasonable for it to take to avoid the disadvantage. In determining when that may be, the tribunal should have regard to the facts as they may reasonably have appeared to the Claimant, including what the Claimant was told by her employer. 20 of 29 Breach of contract / deduction from wage

[118]The Claimant’s claim for breach of contract is permitted by article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the claim was outstanding on the termination of employment.

[119]The Claimant also claims in respect of deductions from wages which she alleges were not authorised and were therefore unlawful deductions from her wages contrary to section 13 of the Employment Rights Act 1996.

[120]Section 13 states: Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not 21 of 29 operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

[121]We are reminded by Respondent’s Counsel that … “In order to determine whether there has been an unlawful deduction of wages and/or breach of the Claimant’s contract of employment, it is necessary to consider the express and/or implied terms of her contract of employment. In construing the written terms of a contract (alleged express terms are relied upon by the Claimant in this case), regard must be had to the intentions of the parties by reference to what the reasonable person would have understood them to be having regard to all the background knowledge available to them as to the meaning of the language used in the contract (see Campbell v British Airways Plc 2018 WL 06172527 and Anderson v London Fire and Emergency Planning Authority, 2013 WL 618056).”. The Decision

[122]Considering first the question of disability and knowledge of it.

[123]It is accepted that the Claimant, by reason of the impairment of mixed anxiety and depression, with features of PTSD, is currently a disabled person as defined in section 6 of the Equality Act 2010.

[124]What we need to determine is from when the Claimant met that definition.

[125]As was confirmed at the start of this hearing the Respondent accepts the Claimant was a disabled person for that reason from some point in December 2017.

[126]The Claimant asserts in her witness statement that she was a disabled person for that reason for some time in 2005 to 2007. This is different to what is stated in the agreed list of issues where the Claimant confirmed it was from the 23 May 2017.

[127]We can see from the evidence presented by the Claimant that she has health issues associated with anxiety, stress and depression from 2005. However, we have not been presented with evidence that what happened in 2017 was a recurrence of what happened before. However, even if we give the Claimant the benefit of doubt on this and agree with her that she meets the definition from some point in 2005 to 2007 the key issue in this claim is the Respondent’s knowledge about the matter. 22 of 29

[128]The Claimant asserts that the Respondent had all the requisite knowledge for the complaints made by the 22 June 2017. The Respondent asserts it would all be from December 2017.

[129]This therefore only has an impact on the reasonable adjustment complaint, as the direct disability discrimination complaint relates to a period of August 2018 to February 2019.

[130]There has been no evidence presented to us to suggest the Respondent is made aware of a potential linkage between what the Claimant suffered in 2005 to 2007 and then in 2017 onwards.

[131]So, what did the Respondent know by 22 June 2017?

[132]The Claimant is not absent from work for any sickness related reason for a period of more than 5 years before her absence on the 26 January 2017 for reason of … “Nervous System – migraine/headaches”. The Claimant asserts that she believes at that point her then line manager, as it was her first day of sickness absence in more than 5 years, should have been alerted that it was possible that a more serious problem existed. This may be the Claimant’s belief, but it is not a reasonable conclusion to assert in our view. The Claimant herself in her meeting with her line manager at that time says she could not face work on that day. That, alongside there being no absence in over 5 years prior to that does not suggest a more serious problem. What follows it is then a day of compassionate leave on the 23 February 2017. It is not until the 11 August 2017 that sickness absence for anxiety and depression begins.

[133]We also note that the GP notes (at page 359) do not suggest an issue in 2017 being linked to stress until 6 June 2017.

[134]The Claimant explains in her statement that it was during May 2017 when she had a 1:1 with Phil that she explained how unwell the problems with her team were making her feel and she says she asked for an OH referral and a stress reduction plan.

[135]We are referred to some text messages at that time (pages 98 to 101) that show concerns being raised about the work issues, and that the Claimant was looking for a complete change, but they do not say that she is seeking an OH referral or a stress reduction plan. Further, the Claimant remains at work at this time.

[136]It is not in dispute that there is a verbal assault of the Claimant by a work colleague on the 1 June 2017. There then follows a constructive dialogue between the Claimant and ET. It is agreed that the Claimant can work from home for two weeks.

[137]The Claimant then returned to the workplace around the 19 June 2017.

[138]There is then an OH referral on the 21 June 2017.

[139]The OH report dated 22 June 2017 (at pages 334 to 335) says that the Claimant is fit for full work duties, that management should address the work issues, 23 of 29 advised that a stress work assessment be carried out, if feasible she be allowed to work from home over a period of 6 weeks, and that her level of stress be monitored in a 1:1 meeting at regular intervals to ensure her condition is improving.

[140]OH confirms that based on their interpretation, the Claimant’s stress/anxiety bullying and harassment condition is unlikely to be considered a disability because it has not lasted longer than 12 months and is not having a significant impact on her ability to undertake normal daily activities. There is no challenge by the

[141]We do not find based on these findings that the Respondent had all the requisite knowledge of disability relevant to the reasonable adjustment complaint by the 22 June 2017.

[142]So, by when did the Respondent have such knowledge?

[143]After receipt of the OH report DW has a conversation with the Claimant, and she confirmed that she wanted to take matters to her line manager herself. DW confirmed that he left the Claimant to do so.

[144]We accept that the Claimant raised the OH report and its recommendations with her then line manager in late June 2017. The Claimant then has annual leave from mid July 2017 returning on the 8 August 2017. There is then a 1:1 with her line manager and the Claimant says she raised her concerns about the fact that the recommendations from the OH outcome report had still not been implemented.

[145]The Claimant then commences sickness absence from the 11 August 2017 which is recorded as being for reason of anxiety and depression.

[146]On the 11 September 2017 there is then a meeting with the Claimant, her union representative and ET (see pages 104 to 107). It is set up to complete the stress risk assessment and stress reduction plan. ET explained in her evidence that there had been confusion between the Claimant’s line manager and DW as to who was taking the matter forward (them each thinking the other was doing it). It was chased by the Claimant’s union representative in early September 2017 and ET checked to confirm the position.

[147]The Claimant agreed in cross examination that at the meeting on the 11 September 2017 she had discussed all the issues that caused difficulty and there were five areas causing it, but two were thought to be the most important at that time. The Claimant confirmed that she had no criticism of what was done up to that point.

[148]There are then a number of meetings between the Claimant and the Respondent, at the beginning of October 2017 with SF, then on the 16 October with AB and then on the 1 November 2017 with AB when the Claimant returns back to work on an agreed phased return. 24 of 29

[149]The Claimant refers in her witness statement (page 4) to meeting with SF in early November 2017 and that he made an OH referral. There is then a further OH report dated 7 November 2017 (pages 336 to 337). It confirms that the Claimant is medically fit for work and is benefiting from the return to work plan and support in place, and that she would also benefit from working from home when possible. It also notes that a stress reduction plan is in place and is on a project where she can avoid managing staff (page 336).

[150]OH holds the view at that time that the Claimant does not satisfy the definition of disability (see page 337) because as at that time her symptoms (although having a significant impact on her ability to carry out daily activities including work at that time) have not yet lasted for longer than 12 months. There is no challenge by the

[151]There is then the telephone conversation between the Claimant and SF on the 14 December 2017.

[152]We accept the evidence of SF on this matter. The Claimant had returned to work on the 1 November 2017 with a positive trajectory: however, by December 2017 it was clear that was faltering. We find that the Respondent had knowledge (constructive or actual) of the Claimant’s disability by 14 December 2017.

[153]Having confirmed our findings as to disability and knowledge of it we now move to consider the alleged PCP, has that and the alleged substantial disadvantage that arises from it, when compared to non-disabled comparators, been proven on the balance of probability?

[154]The alleged PCP is the Respondent … “Not adopting the recommendations of Occupational Health (namely, a Stress Risk Assessment and regular meetings).”.

[155]The alleged substantial disadvantage is, when compared to someone without the Claimant’s disability that … “Occupational Health recommended that the Claimant should have a Stress Risk Assessment and regular meetings to manage her disability related health issues at work, and by not doing so, as alleged by the Claimant, her health could not improve and she was unable to return to work.”.

[156]The asserted disadvantage links to the stress reduction assessment/plan and regular meetings not happening.

[157]There is a period from the 22 June 2017 to the 11 September 2017 before the stress reduction plan and then regular meetings started to happen.

[158]This would suggest that knowledge of any asserted substantial disadvantage would predate the Respondent having constructive or actual knowledge of the disability.

[159]The reasonable adjustment complaint is also reliant on us finding that the asserted PCP exists. The Respondent denies it had such a PCP, having taken the steps set out in the OH report. As Respondent’s Counsel asserts in her written submissions (paragraph 19) … “There is absolutely no evidence that the 25 of 29 Respondent had a practice in place of not following OH advice and/or a provision to that effect. In fact, the evidence points very clearly the other way. Even if it failed to follow OH advice through inadvertence or incompetence on this occasion, that does not constitute having a practice of doing so which is what the law requires.”. As also put in her oral submissions that there is no written evidence of such a provision and at best all we have is a one-off situation where there are OH recommendations not potentially followed straight away.

[160]Did the Respondent apply the PCP of not adopting the recommendations of Occupational Health (namely, a Stress Risk Assessment and regular meetings)?

[161]We do not find that the alleged PCP of the Respondent has been proven on the balance of probability to exist. The Respondent did conduct a stress risk assessment and hold regular meetings with the Claimant. There is a delay between the OH report on the 22 June 2017 and the meeting on the 11 September 2017, but it was done. The Claimant does not assert that the Respondent had a PCP of delaying the adoption of the recommendations of Occupational Health (namely, a Stress Risk Assessment and regular meetings).

[162]As the alleged PCP does not exist, we cannot find that the alleged substantial disadvantage has been proven on the balance of probability, because you cannot have one without the other. The Claimant has alleged that she was at a substantial disadvantage compared to someone without her disability, in that Occupational Health recommended that the Claimant should have a Stress Risk Assessment and regular meetings to manage her disability related health issues at work, and by not doing so, as alleged by the Claimant, her health could not improve and she was unable to return to work. The Claimant did return to work on a phased return on the 1 November 2017.

[163]The Claimant asserts that it would have been reasonable for the Respondent to implement a stress risk assessment and have regular meetings to manage her disability related health issues at work. We find that the Respondent did do this. We also find that it went further than that, setting up support contact from AB and SF, changing the Claimant’s job role so as to remove her line management responsibilities, allowing her to change work location, setting up an agreed phased return, moving the Claimant’s non-working day, allowing for working from home, assigning TS as her permanent line manager and introducing a DETP.

[164]We also acknowledge here that as submitted by Respondent’s Counsel a stress risk assessment and regular meetings on their own could be viewed as process not outcome (as per Owen). What we have noted as being done by the Respondent were the outcomes of that process.

[165]For all these reasons we do not find that the Respondent has failed in the duty to make reasonable adjustments. This complaint therefore fails and is dismissed.

[166]With this finding we do not need to go on and consider the limitation issues. We would observe though that the Claimant’s failure to make a reasonable adjustments complaint was not made within the time limit in section 123 of the Equality Act 2010. The potential limitation to contact ACAS would appear to have 26 of 29 been in mid- December 2017, based on if there was a failure it was rectified by the 11 September 2017, so that the claim was not made to the Tribunal within three months (plus early conciliation extension) of the alleged failure to make reasonable adjustments.

[167]As to whether it is it just and equitable in all the circumstances to extend time, the Claimant has relied upon the same reasons why she did not submit the complaint of direct discrimination before she did (see page 6 of the Claimant’s witness statement). This does not expressly explain matters for the reasonable adjustment complaint. However, even if we give the Claimant the benefit of the doubt on that, the Respondent has articulated significant prejudice (as set out in paragraph 18 of the Respondent’s Counsel’s written submissions and articulated in her oral submissions). We have noted that all of the witnesses could not recall exact dates and details of meetings and conversations. This does give the Respondent difficulty in answering this claim definitively with full facts at the forefront of their mind. This is further compounded by the Claimant not raising a grievance about this matter at the time, despite union support and having gone through the grievance process for the sick pay matter. Also, based on the Claimant’s evidence to this Tribunal, what more she is asserting the Respondent could have done, is not something she ever articulated to the Respondent before now. From that we can see that the Respondent would have significant prejudice in defending those matters.

[168]So, to consider the complaint of direct discrimination. The Claimant alleges that the Respondent refused to classify the Claimant’s absence following an alleged verbal assault on the 1 June 2017 by a work colleague as “Assault - work related” absence at various points from August 2018 until the Grievance outcome (February 2019). This is what happened, the Respondent did refuse to classify the Claimant’s absence in this way.

[169]Was that less favourable treatment? We have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant says she was treated worse than a hypothetical comparator.

[170]With regard to the complaint for direct discrimination the Claimant needs to prove some evidential basis upon which it could be said that this hypothetical comparator would not have suffered the same allegedly less favourable treatment as the Claimant.

[171]We have not been presented evidence to prove on the balance of probability that a hypothetical comparator would have been treated more favourably.

[172]We accept the evidence of the Respondent (in particular TS) that the decision was because it was understood there was no such entitlement for the Claimant’s absence to be classified in this way as the Respondent’s procedure/policy only applied to an assault by a customer/DWP claimant and not a work colleague. 27 of 29

[173]About this complaint we find that no facts have been established upon which we could conclude (in the absence of an adequate explanation from the Respondent), that an act of discrimination has occurred. In these circumstances the Claimant's complaint of direct discrimination, fails and is dismissed.

[174]So, to consider whether the Respondent made unauthorised deductions from the Claimant’s wages and / or acted in breach of contract by not paying her full pay while off sick.

[175]The Claimant asserts that her absence following an alleged verbal assault on the 1 June 2017 by a work colleague should have been classified as “Assault - work related” absence resulting in full pay being properly payable to her. The Claimant claims that any short fall in her full pay is therefore an unauthorised deduction from wage or a breach of contract complaint that was outstanding when the Claimant’s employment ended (her being off sick to the termination of her employment for ill health reasons).

[176]We are reminded by Respondent’s Counsel that … “In order to determine whether there has been an unlawful deduction of wages and/or breach of the Claimant’s contract of employment, it is necessary to consider the express and/or implied terms of her contract of employment. In construing the written terms of a contract (alleged express terms are relied upon by the Claimant in this case), regard must be had to the intentions of the parties by reference to what the reasonable person would have understood them to be having regard to all the background knowledge available to them as to the meaning of the language used in the contract.”.

[177]We accept that there is a contractual right to benefit from full pay when absence is classed as “Assault - work related”. That classification though is necessary for full pay to then be properly payable to the Claimant.

[178]We accept that there are a number of ingredients required to satisfy that classification, such as the assault being by a customer or DWP claimant. We accept the Respondent’s evidence as to the rational for those so being what the reasonable person would have understood them to be having regard to all the background knowledge available to them as to the meaning of the language used in the clauses.

[179]The Claimant did not satisfy them all, and only satisfied some of them much later after the accident report was completed. The Claimant did not though suffer a verbal assault by a customer or DWP claimant.

[180]For these reasons the Claimant has not proven that full pay was properly payable to her, nor that there was a breach of contract. For those reasons this complaint also fails and is dismissed.

[181]We accept that our analysis of this matter has benefited from being able to see the full and final explanation on the clauses’ interpretation that followed a variety of different explanations by the Respondent. It is therefore understandable why the Claimant has sought to challenge the matter. 28 of 29

[182]The unanimous judgment of the tribunal is therefore that the complaints of direct disability discrimination, for failure in the duty to make reasonable adjustments, and for unauthorised deductions from wage / breach of contract, all fail and are dismissed.

[183]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 12; the findings of fact made in relation to those issues are at paragraphs 13 to 90; a concise identification of the relevant law is at paragraphs 91 to 121; how that law has been applied to those findings in order to decide the issues is at paragraphs 122 to 182.