Miss A Cieslewicz v Jacobs and Turner Ltd: 1402963/2018

EMPLOYMENT TRIBUNALS

Case No 1402963/2018

Between

Miss A CieslewiczClaimant

Jacobs & Turner LimitedRespondent

Before

Employment Judge Mr P Cadney

In person for claimant

- MS G NICHOLLS (instructed by COUNSEL) for respondent

Date 15 October 2020

JUDGMENT

The complaint of race discrimination is struck out.

REASONS

[1]By an Order sent to the parties on 20 March 2019, the Tribunal gave the Claimant an opportunity to make representations, as to why the complaint of race discrimination should not be struck out.

[2]The Claimant has failed to make any representations, in writing or otherwise, as to why this should not be done. The complaint of race discrimination is therefore struck out.

[3]The case will be listed for a 2-hour in-person case management preliminary hearing, notification of which shall be sent to the parties in due course.

[1]By this claim the claimant brings claims of direct disability discrimination, discrimination arising from disability, and the failure to make reasonable adjustments as set out below. With the consent of the parties the hearing was conducted remotely via CVP (cloud video platform).

[2]The tribunal has heard evidence from the claimant, and received witness statements from Agniewszka Sokolowska, and Anna Bejger. On behalf the respondent we heard evidence from Brian Harvey and Sue Heard. The claimant was assisted by a number of Polish interpreters to whom the tribunal repeats the gratitude for their assistance expressed orally. Disability

[3]In December 2016 the claimant was diagnosed with and subsequently treated for breast cancer, which is a deemed disability pursuant to paragraph 6 Schedule 1 to the Equality Act 2010. This was in remission following treatment in 2017, but in June 2020 the claimant was very sadly informed that cancer in a different form had recurred. It is not in dispute that she was a disabled person by reason of cancer for the period relevant to these claims. Claimant

[4]Given both the initial diagnosis and treatment, and the recurrence of the claimant’s cancer it is impossible not to have enormous sympathy for her as a relatively young single mother with a young daughter. Moreover, despite being obviously upset at some points during the hearing, and despite her current situation the claimant conducted herself with great dignity during the proceedings. However, the tribunal is bound to determine the case not on the basis of sympathy but by the application of the law to the facts as we find them irrespective of the outcome. Similarly, we should note that we are not concerned with the fairness of the decision in particular to dismiss the claimant (she does not have sufficient length of service to bring a claim for unfair dismissal) but only the specific allegations of disability discrimination set out below. ---2--- Facts

[5]The respondent is an outdoor and sportswear clothing retailer which trades under the brand Trespass. The claimant was employed as a store supervisor from 20th December 2017 until her summary dismissal for gross misconduct on 13th May 2018. For most of the period with which we are concerned the claimant’s manager was Ms Sue Heard who joined on 26th December 2017, and the Area Manager, who made the decision to dismiss, was Mr Brian Harvey. Her appeal was heard by another Area Manager Mr Matt Scholes who has since left the respondent and who has not given evidence.

[6]One of the issues in the case is the extent to which Ms Heard and Mr Harvey were aware of her condition. However, the dispute primarily concerns not the diagnosis of cancer itself but the fact that the claimant was suffering stress and was taking antidepressant drugs because, she alleges of the stress both of having cancer and the risk of recurrence. Ms Heard’s evidence, which we accept, is that she had been told about the claimant having been treated for breast cancer by Harry Armstrong (a fellow store supervisor) in or about February 2018 after the claimant had disclosed it to him, but that she was not told by the claimant herself until a review meeting on 15th March 2018. At the meeting the claimant told her that she was stressed because she had an annual review on the following Saturday 19th March 2018. Ms Heard’s evidence is that she was not at any stage aware that the claimant was taking antidepressant medication. Mr Harvey’s evidence, which again we accept, is that he was not aware that the claimant had previously been treated for cancer until he read the investigation meeting notes prior to the disciplinary hearing. In those notes it was stated that the claimant had had cancer but had since been given the all clear, which was at that stage correct.

[7]Accordingly we accept that during the period with which we are directly concerned that as described above Ms Heard from some point in February 2018 and Mr Harvey at some point in early May 2018 knew that the claimant had been treated for breast cancer but both correctly understood that at that stage the treatment was believed to have been successful and that there had by that point been no recurrence.

[8]The events which led to the claimant’s dismissal began when the store was informed of a suspicion of a theft (there is not and has never been any suggestion that this involved the claimant in any way). However, as a result, Ms Heard was asked to review the CCTV footage. In doing so she discovered that on the morning of 25th April 2018, the footage showed the claimant allowing two children to play unattended in the upstairs stockroom, one of whom, a young boy, attempted to open a container of Nikwax, a waterproofing agent. Subsequent investigation revealed two more occasions on which the claimant had brought one of the children, her daughter, to the store in the early morning (11th and 18th April 2018). The footage showed that on 11th April the claimant had left with her daughter via the rear fire escape door which she had left unlocked.

[9]As a result, on 2nd May 2018 the claimant attended an investigatory meeting with Harry Armstrong. The claimant’s shifts commenced at 8.30 am with the store opening ---3--- at 9.00am, and the claimant did not dispute that on the first two occasions she had brought her daughter with her at the beginning of the shift and had subsequently left to take her daughter to school; and had on the third occasion brought another child as well and had subsequently taken them both to school. Mr Armstrong interviewed Ms Heard and then conducted a second investigatory interview with the claimant.

[10]The claimant’s case both before the disciplinary and appeal hearings, and before us is that she had been given permission to bring her daughter with her at the beginning of her shift and then take her to school. This is disputed by Ms Heard. However, the circumstances as described by both appear to us to be open to considerable misunderstanding. Ms Heard’s evidence is that she was told by the claimant on one occasion that she was struggling to find childcare to take her daughter to school on her next shift but that she had one more person to speak to. Ms Heard told the claimant that in an emergency, and as a one off, she could bring her daughter into work with her provided that she arrived fifteen minutes early at 8.15 am to complete the paperwork. She believes, but does not specifically recall, that she would have told the claimant to come back to her if this was necessary. If she did not it is perhaps understandable that the claimant should have understood that she had permission to do so if necessary. However, it is not alleged that she ever sought or obtained permission to bring another child with her, as she did on 25th April; nor that any of the other allegations fell within any permission granted by Ms Heard.

[11]Following the investigation, the claimant was invited to a disciplinary meeting held on 13th May 2018 and heard by Mr Harvey. There were four allegations which it was said may potentially amount to gross misconduct and which might result in a final written warning or dismissal:- i) Regularly bringing your daughter and another child into the workplace without your line manger’s approval or consent to this specific arrangement. ii) Leaving them attended on at least one occasion where one of them attempted to open a box of Nikwax, causing health and safety concerns. iii) Failing to set the alarm and leaving the shop fire door unlocked and unsecured while away from the premises causing security concerns. iv) Missing time at work and failing to make up the time or amend the timesheets.

[12]During the disciplinary hearing the claimant contended that Ms Heard had given her permission to bring her daughter to work but accepted that she had not arrived 15 minutes early in accordance with Ms Heard’s instruction. She accepted that she was aware of the health and safety issues in leaving children unattended in store, but accepted that she had given the children permission to go upstairs to the storeroom unaccompanied. She accepted that she had not amended her time sheets to reflect the time she was out of the store, but stated that she had in fact made up the time when she had stayed late on occasion. She accepted that she had left the store with the rear door unlocked and had not set the alarm. She said that she knew the risks of leaving the premises insecure, and that it was unacceptable to do so. Accordingly ---4--- most of the allegations were factually admitted save that the claimant contended that she had permission to bring her daughter into work (a partial denial of allegation 1) and that she had made up the unworked time ( a partial denial of allegation 4). Mr Harvey concluded, and informed the claimant orally at the meeting, that in particular in leaving the store with the rear door unlocked and falling to set the alarm that the claimant had committed gross misconduct and that the claimant would be summarily dismissed.

[13]On the 14th May 2018 the claimant’s dismissal was confirmed in writing together with a fuller description of Mr Harvey’s conclusions. In respect of allegation one he essentially accepted the claimant’s account that she had been given permission to bring her daughter to work in an emergency, but not that she had any permission to do so on a regular basis and so upheld the allegation. The second and third allegations, which were not factually in dispute were upheld. In respect of the fourth allegation it was upheld on the basis that the claimant was aware of the requirement to accurately recorded the times of her attendance at work. He did not find that she had failed to make up the time. As had been conveyed orally he concluded that the allegation in relation to leaving the store unsecured and unalarmed amounted to gross misconduct for which she was summarily dismissed.

[14]The claimant appealed, and in her appeal letter she stated that she had been receiving hormonal therapy and calming medication to help deal with stress. She supplied a doctor’s letter from Dr E Gillies. This confirmed that she had undergone treatment for breast cancer in 2017 including surgery, chemotherapy and radiotherapy; that she was very anxious about the annual review in March 2018 and had been taking anti-depressants and concluded that “ Anna has been having difficulties with her mental health which I feel needs to be taken into account from an employment perspective.”

[15]Prior to the appeal hearing, which was held on 12th June 2018 the claimant was told that she could be accompanied by a fellow employee or a trade union representative. On 7th June she requested to be allowed to bring Anna Bejger as a note taker, but this request was refused as she fell into neither category. However, the claimant attended with Ms Bejger. As set out in her statement Mr Scholes refused to allow her to participate as she was not a fellow employee, trade union representative or official translator. She describes Mr Scholes as aggressive. The evidence from Ms Heard is that in fact it was Ms Bejger who was aggressively demanding the right to attend.

[16]The appeal was heard by Matthew Scholes an Area Manager. he has since left the respondent’s employment and has not given evidence. Although we have not heard from Mr Scholes we have the notes of the meeting made by Ms Sarah McDay, and his written outcome letter setting out his conclusion. The claimant contended that all of the facts had not been taken into account; that she wasn’t aware that her actions were in breach of company policy; she had permission to bring her daughter into work; and that the respondent had failed to assess or supervise the claimant adequately in the light of her illness and treatment. On Friday 22nd June he conducted a follow up interview with Ms Heard. ---5---

[17]On 26th June Mr Scholes set out his conclusions in a letter. He categorised the claimant as having three grounds of appeal; the first that she had permission to bring her daughter to the store; the second that there had been a failure to assess or supervise the claimant in the light of her condition; and the third that her dismissal was discriminatory on the grounds of her diagnosis of cancer or her Polish nationality. His conclusions were that in respect of first ground he did not accept that the claimant had permission to bring a child other than her daughter to the store, or to leave them unaccompanied in the storeroom; and had left the store unsecured. In respect of the second he did not find that there had been any failure of supervision. The allegations of discrimination were not upheld and he found that in any event they related to issues such as CCTV training and not to the dismissal. He concluded that the decision to dismiss was reasonable and upheld it. Claims

[18]The issues in the case were identified by EJ Bax at an earlier case management hearing:-15. Section 13: Direct discrimination on grounds of disability 15.1. Did the Respondent subject the Claimant to the following treatment falling within section 39 Equality Act, namely: 15.1.1. Desiring to dismiss the Claimant when the Respondent found out that there had been a recurrence of or a different type of cancer 15.1.2. The allegations against her were not true, in that she had permission to bring her children into work and was given permission to make up the time and did make up the time, and the reason for the finding was because of her cancer and the Respondent did not want her working there. 15.1.3. Dismissing the Claimant 15.1.4. Rejecting the Claimant’s appeal 15.2. Did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated the comparators? The Claimant relies upon a hypothetical comparator. 15.3. If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 15.4. If so, what is the Respondent’s explanation? Can it prove a non-discriminatory reason for any proven treatment?”

16. Section 15: Discrimination arising from disability ---6--- 16.1. The allegation of unfavourable treatment as “something arising in consequence of the claimant’s disability” falling within section 39 Equality Act is 16.1.1. Finding the allegations of misconduct proven 16.1.2. Dismissing the Claimant 16.1.3. Rejecting her appeal No comparator is needed. 16.2. Can the Claimant prove that the Respondent treated her as set out in paragraph 16.1 above because of the “something arising” in consequence of the disability? The something arising is a lack of judgment and concentration as a result of her illness and its treatment and or the possibility of sick leave. 16.3. Can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? The Respondent relies on the following justification defence: the aim of the treatment (disciplinary action/dismissal) was to enable the effective management of the Respondent’s business by maintaining staff discipline; health and safety (the Claimant left unattended children on the premises) and security (the Claimant left the premises unsecured), and that the treatment was a proportionate means of achieving those aims. 16.4. Alternatively, can the Respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had a disability?

17. Reasonable adjustments: section 20 and section 21 17.1. Did the Respondent apply the following provision, criteria and/or practice (‘the provision’) generally, namely: 17.1.1. Requiring the Claimant comply with its instructions regarding bringing children to work, its attendance policy, till policy and requiring the Claimant to lock and alarm the store when she was not present in the building. 17.1.2. Not allowing non-work colleagues and/or someone other than trade union representatives to accompany her to the disciplinary meeting. 17.2. Did the application of any such provision put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in that: 17.2.1. her condition had an adverse effect on her judgment which was impaired. 17.2.2. The claimant had a lack of concentration and needed assistance. ---7--- 17.3. Did the Respondent take such steps as were reasonable to avoid the disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know the adjustments asserted as reasonably required and they are identified as follows: 17.3.1. It should have taken into account the effect illness and the treatment had on her judgment when considering the misconduct allegations 17.3.2. Allowing a non-work colleague or someone other than a trade union representative to accompany her at the disciplinary hearing 17.3.3. Applying a sanction falling short of dismissal. 17.4. Did the Respondent not know, or could the Respondent not be reasonably expected to know that the Claimant had a disability or was likely to be placed at the disadvantage set out above? 18. Time/limitation issues 18.1. The claim form was presented on 8 August 2018. Accordingly, any act or omission which took place more than three months before that date (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction. 18.2. Can the Claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such conduct accordingly in time? 18.3. Was any complaint presented within such other period as the employment Tribunal considers just and equitable? Conclusions General

Conclusions

[19]The claim is a litigant in person and we have concluded that we should consider all points that could be made on her behalf on the basis of the evidence before us, even if not specifically raised by her in her submissions. Direct Discrimination (Section 13 Equality Act 2010)

[20]The first allegation (15.1.1 above) is that the respondent took the decision to dismiss following the recurrence of the claimant’s cancer, either in the same or a different form. This is clearly factually incorrect as it is agreed that the claimant’s cancer had been successfully treated (at least as far as was known at that point); and that by her annual review in March 2018 there had been no recurrence. There is simply no factual basis for concluding that either Mr Harvey or Mr Scholes could have based ---8--- their decisions in any way on the recurrence of a condition which had not occurred at that time. This claim is therefore not factually well founded.

[21]However, it leads on to the more general point that an allegation of direct discrimination is an allegation of less favourable treatment “because of” the protected characteristic, which is in this case disability by reason of having previously been diagnosed with cancer. Once an individual has received a diagnosis of cancer they are deemed thereafter to be disabled within the meaning of s6 Equality Act 2010. However, the claimant was in remission at the time both of the decision to dismiss and the appeal. She was not therefore suffering from and did not have any diagnosis of cancer at the time either decision was made. Whilst this does not preclude a finding of direct discrimination it creates obvious difficulties for the claimant in establishing primary facts which would allow the tribunal to draw the inference that any less favourable treatment was “because of” a condition which was not present at the time the decision was made.

[22]The second (15.1.2) is that the respondent found that she did not have permission to bring her daughter into work, and had not made up the time; and that the reason for the findings were that she had cancer. The first difficulty for the claimant is that Mr Harvey did not make any such findings. As is set out above he concluded that the claimant had limited permission to bring her daughter to work; and made no finding that she had not made up the time, but rather that she had not made any record of her absence from the store. Both of these findings are based on and borne out by the claimant’s own evidence. On her own evidence she never sought permission after the first occasion, and did not make any record of her absences from the store. In those circumstances there are in our judgment no primary facts from which we could infer in the absence of an explanation from the respondent that the reason for the conclusions was the claimant’s disability. Even if we accepted that there was such evidence sufficient to satisfy stage 1 of the Igen v Wong test and transfer the burden of proof to the respondent, we accept Mr Harvey’s evidence that the reason for his conclusions was the information before him at the time, and were not influenced in any way by the claimant’s disability. Given that his conclusions are consistent with the claimant’s own evidence it is hard to see in truth how he could have drawn conclusions more favourable to the claimant.

[23]The third allegation (15.1.3) is dismissing the claimant. The specific finding for which the claimant was dismissed is that she left the store insecure in that she had neither locked the rear door nor set the alarm. As this is not factually in dispute there is no basis from which we could conclude even in the absence of an explanation from the respondent that the finding of fact was discriminatory. In terms of the finding that it was gross misconduct it is not in dispute that the claimant accepted that she knew how to secure the store and had regularly done so at the end of a shift. The claimant has not at any stage either in the disciplinary hearing, on appeal or before us attempted to justify leaving the store unsecured (indeed she accepts that it was an error of judgment as discussed below in relation to the section 15 claim). In our judgement was inevitable that it would be regarded as serious misconduct, and we accept that it was genuinely regarded as gross misconduct by Mr Harvey. Similarly given that it was genuinely regarded as gross misconduct, we accept that Mr Harvey ---9--- genuinely found that it was sufficiently serious to justify summary dismissal. In our judgement there is no evidence at all that would allow us to infer, even in the absence of an explanation from the respondent that the fact of the claimant having previously been diagnosed with cancer played any art in the decision whatsoever; and again even if there were such evidence and the burden had transferred to the respondent we accept Mr Harvey’s evidence as to the reason for dismissal.

[24]The fourth allegation is failing to uphold the appeal (15.1.4). The situation is different in respect of this allegation in that the respondent has not been able to call Mr Scholes. If, therefore, there are primary facts from which we could infer that the decision was in any way influenced by the fact of the claimant’s disability and that the burden transferred to the respondent, it could necessarily not satisfy that burden and the claim would succeed. The difficulty is that we have not been able to identify any primary facts that would allow us to draw that inference. It is clear that Mr Scholes conducted a thorough appeal hearing and went back to Ms Heard to ask her specific questions raised by the claimant even where they did not relate directly to the dismissal in any event. All of his conclusions as set out in the appeal outcome letter were in our judgement reasonably open to him on the evidence. In our judgment the only allegation from which any adverse inference might be drawn is the allegation that Mr Scholes acted aggressively towards Ms Bejgers. As is set out above that is disputed but even if it is correct in our judgement the fact that Mr Scholes was aggressive towards Ms Bejgers (if it is a fact) would not allow an inference that he had subsequently dismissed the appeal because of the claimants earlier diagnosis of cancer. There is no logical connection between the two propositions. It follows that we cannot identify any primary facts from which any inference that the decision not to uphold the appeal was in any way influenced by the fact of the claimant’s disability. Discrimination Arising From Disability (Section 15 Equality Act 2010)

[25]The “unfavourable treatment” alleged by the claimant are finding the allegations of misconduct proven (16.1.1), dismissing the claimant (16.1.2), and rejecting her appeal (16.1.3). In our judgement all of these are necessarily capable of amounting to unfavourable treatment.

[26]In order to find for the claimant we would need to hold that the unfavourable treatment was “because of” “something arising” from her disability. The claimant alleges that there are essentially three stages leading to the relevant “something” in this case. Firstly, she had been diagnosed with breast cancer. Secondly and as is set out in the GP letter supplied as part of her appeal in March 2018 she was suffering from stress as a result of the fear of the recurrence of her cancer particularly as she approached her annual review; and was placed on anti-depressants. Thirdly she asserts that the stress and/or medication led her in April 2018 to make errors of judgement and to lack concentration. The specific errors she alleges are causally linked her disability via these steps are the decision to permit the two children to play in the storeroom unsupervised; and in particular the decision to leave the store unlocked and unalarmed whilst she took her daughter to school. If this analysis is correct and there is a causal link between the disability, the stress from which she was suffering, and the conduct which led to her dismissal this would at least arguably ---10--- be sufficient to establish the necessary causal link ( See City of York Council v Grosset

[2018] EWCA Civ 1105

in which the claimant succeeded in just such a claim).

[27]There is no dispute that the claimant had been diagnosed with cancer, and the evidence before us is that she suffered from and was prescribed medication for the stress from which she was suffering at the time of the conduct alleged which was itself related to the fear of the recurrence of cancer. The first two steps in the chain are therefore supported by the evidence. The question, therefore, relates to the third step, whether there is evidence from which we could conclude that the conduct was causally linked to the medication or underlying stress.

[28]There is no medical evidence specifically establishing any such link. Whilst the GPs letter refers to mental health difficulties which should be taken into account from the employment perspective it does not allege any specific link between those mental health difficulties and the conduct. In addition the claimant was at work full time, and despite being prescribed the anti-depressant medication by her GP there is no suggestion at any stage that either she or the GP suggested that her ability to work had been affected by either the stress or the medication itself. In the course of the hearing the claimant alleged that there had been a failure to conduct any risk assessment and that had the respondent conducted any assessment it would have discovered that she was not fit to be at work at all. The difficulty with this proposition is that the claimant was seeing her GP at this time and there is no evidence that either she or the GP at the time took the view that she should not be at work or that any adjustment to her work or hours was necessary. Moreover, there is no evidence from the claimant that she was making any other errors of judgement or suffering lapses in concentration at or about this time. In the end all we have is the unsupported assertion from the claimant that if the conduct which led to her dismissal amounted to an error of judgement we should assume that the error of judgement was caused or contributed to by the medication or underlying stress. Sympathetic as we are to the claimant, there is in our judgement simply no evidence supporting that assertion and certainly nothing sufficient to allow us to find such a causal link on the balance of probabilities.

[29]It follows that the claims for discrimination arising from disability must be dismissed. Failure to make reasonable adjustments (Section 20 and 21 Equality Act 2010) Provision, Criterion or Practice (PCP)

[30]The claimant relies on four PCPs (17.1.1). In respect of till policy there is no evidence before us in relation to it nor any allegation that any substantive disadvantage arose in consequence of it. On the basis of the evidence before us there is no claim in respect of it. There is no dispute that “instructions regarding bringing children to work” the ”attendance policy”, and “requiring the claimant to lock and alarm the store when she was not present in the building “ are all PCPS that were applied to the claimant. Equally it is accepted that the limits on those who are permitted to accompany the ---11--- claimant to disciplinary hearings (which we understand necessarily to include an appeal) (17.1.2) is a PCP which was applied to the claimant. Substantial Disadvantage

[31]The primary dispute is whether any of the PCPs placed the claimant at a substantial disadvantage in comparison with non- disabled individuals (s20 Equality Act 2010). The respondent does not accept that there was any substantial disadvantage. The accepted disability is cancer; and as is set out above there may be conditions that are related to the cancer such as stress but it has never been alleged (and necessarily there has been no finding) that the stress was in and of itself a disability. It follows that the question of whether there has been a failure to make reasonable adjustments must be judged against the disability itself, cancer. Firstly, as a general proposition there can be no basis for alleging that any of the PCPs place an individual diagnosed with cancer at a substantial disadvantage in comparison with a non-disabled person. There is no evidential basis for concluding that an individual with cancer would be placed at a disadvantage in complying instructions as to bringing children into work, accurately recording working time, ensuring that the store was locked and alarmed, or attending a disciplinary meeting with a companion falling within the two categories. Secondly, and even if that is incorrect, the question is whether any of the PCPS placed the claimant personally at a substantial disadvantage. Whilst the claimant is a disabled person by reason of cancer she was at the relevant time in remission, and was therefore at the time symptom free. On what basis can it be alleged that an individual who is deemed to be disabled but is symptom free at the time of the relevant events be placed at a substantial disadvantage in comparison with a non-disabled person who is also by definition symptom free?

[32]In our judgement the critical point is that the time of the relevant events the claimant was not suffering any symptoms of the disability itself and that it necessarily follows that she was not placed at any substantial disadvantage by the application of any of the PCPs by reason of her disability. Reasonable Adjustments

[33]It equally follows automatically that in the absence of any substantial disadvantage that there were no steps that it would be reasonable to require the respondent to take. In those circumstances the claim for the failure to make reasonable adjustments must also be dismissed. ---12---