Ms F WilkinsonClaimantSea SanctuaryRespondentDate 21 February 2023
JUDGMENT
The complaint of Unfair Dismissal is struck out.
REASONS
[1]The claimant complains of unfair dismissal .[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so following the letter from the Tribunal dated 18 March 2022, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.
The law
[7]Section 119(4) states that an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).[8]The purpose of compensation for discrimination is to provide proper compensation for the wrong which the respondent is found to have committed. The purpose is not to provide an additional windfall for the claimant and is not to punish the respondent.[9]For financial losses, the Tribunal must identify the financial losses which actually flow from complaints which were upheld. This must not include financial losses caused by any other events, or losses that would have occurred anyway.[10]For injury to feelings, the Tribunal must not simply assume that injury to feelings inevitably flows from each and every unlawful act of discrimination. In each case it is a question of considering the facts carefully to determine whether an injury to feelings has been sustained. Some persons who are discriminated against may feel deeply hurt and others may consider it a matter of little consequence and suffer little, if any, distress.[11]When making an award for injury to feelings, the Tribunal should have regard to the guidance issued in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871, [2003] IRLR 102, [2003] ICR 318, CA, and taking out of the changes and updates to that guidance to take account of inflation, and other matters.[12]Three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury, were identified and have subsequently been uplifted, given the passage of time since Vento was decided.[13]This claim was issued in December 2021. The relevant guidance applicable to this claim is as follows (the fourth addendum) which states: In respect of claims presented on or after 6 April 2021, the Vento bands shall be as follows:a. a lower band of £900 to £9,100 (less serious cases);b. a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); andc. an upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.[14]The basis of compensation for financial losses in discrimination cases is that 'as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct of [her employer]' (Ministry of Defence v Cannock [1994] IRLR 509, EAT, per Morison J at 517, [1994] ICR 918, EAT).[15]In assessing financial loss, there are a broad range of possible approaches to the exercise for the Tribunal.a. In some cases, it might be just and equitable to restrict compensatory loss to a specific period of time, because the Tribunal has concluded that that was the period of time after which, following a fair process, a fair dismissal (or some other fair termination) would have inevitably taken place.b. In other cases, the Tribunal might decide to reduce compensation on a percentage basis, to reflect the percentage chance that there would have been a dismissal had a fair process been followed (and acknowledging that a fair process might have led to an outcome other than termination).c. If a tribunal thinks that it is just and equitable to do so, then it might combine both of these: for example, award 100% loss for a certain period of time, followed by a percentage of the losses after the end of that period.[16]There is no one single “one size fits all” method of carrying out the task. The Tribunal must act rationally and judicially, but its approach will always need to be tailored specifically to the circumstances of the case in front of it. When performing the exercise, the Tribunal must also bear in mind that when asking itself questions of the type “what are the chances that the claimant have been dismissed if the process had been fair?”, it is not asking itself “would a hypothetical reasonable employer have dismissed”? As was held in Abbey National plc v Formoso [1999] IRLR 222, EAT, the question to be asked is “what were the chances that the individual would have kept their job, absent discrimination?” It is this figure that has to be used in calculating the amount of any award made under this heading. It is an error of law to decide this issue based upon what a hypothetical reasonable employer may have done. The question to be assessed is what this actual employer would have done.[17]Under the Equality Act 2010, Tribunals apply the same rules concerning the duty to mitigate loss as apply to damages recoverable under the common law. Where the employee has mitigated, a tribunal should give credit for sums earned. When assessing the amount of any deduction for the employee's failure to mitigate their loss, the correct approach is to make a decision about the date on which the employee would have found work had they been acting reasonably to seek to mitigate their losses, and then make an assessment of what income they would have had from such work. It is for the respondent to prove that a claimant has unreasonably failed to take appropriate steps, and that – on balance of probabilities - had those steps been taken, then the losses would have been mitigated.[18]Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, a Tribunal making an award in a case involving discrimination is obliged to consider awarding interest, whether or not any party raises the issue, but is not obliged to award interest. Interest awarded is calculated as simple interest, accruing from day to day, at the rate fixed by section 17 of the Judgments Act 1838, which is currently 8%. The period over which interest is calculated differs for awards for injury to feelings and awards for all other sums. Generally, interest is calculated:a. on awards for injury to feelings, for the entire period from the date of the relevant act of discrimination giving rise to the injury to feelings up until the calculation dateb. on other awards, from the 'mid-point date' (generally the date half way between the date of the act of prohibited conduct and the date of calculation) to the calculation date Evidence and Findings[19]We heard oral evidence from the claimant who also produced a witness statement.[20]During cross-examination, the respondent’s representative focused mainly on issues around mitigation and financial losses and did not challenge the claimant’s evidence about the effect of the respondent’s actions upon her.[21]Some of the claimant’s witness evidence about her upset concerned matters which were not part of her discrimination claim. The claim related only to the claimant’s dismissal, arising from the respondent’s failure to deal with the disciplinary process in writing. The matters in the witness statement which did describe upset relating or likely to relate, in the view of the Tribunal, to the discrimination, were as follows:a. The claimant’s mental health issues had declined during late 2020 and 2021 because of the earlier events in the workplace. She had long-standing mental health issues. She was therefore particularly liable to experience distress and upset (the ‘eggshell skull’ principle) by the point in time when she was dismissed.b. She was very frustrated at not having the opportunity to prove her innocence of the disciplinary charges.c. She had lost trust in employers (this was likely to be due to a combination of feelings about of her earlier treatment (nondiscriminatory) and the dismissal itself).d. She was experiencing ongoing feelings of anxiety and depression and was unable to drive past the respondent’s address because of this.e. She had experienced symptoms of high blood pressure, excessive ongoing worry and tension, restlessness/edginess, muscle tension, headaches, nausea, negative feelings about herself.[22]She also gave oral evidence to the Tribunal to explain that she had not sought new employment because of her feelings of being unable to trust a new employer, given her treatment by the respondent. She said that she had “bad days” sometimes and felt that on such days she would be unable to attend work.[23]The Tribunal had also previously noted in the liability hearing, that the claimant, in her letter of appeal against dismissal, described her upset that the respondent, as a mental health charity had not shown a greater understanding of the claimant’s mental health and had discriminated against her. She said in the same letter that she had been shocked by her dismissal and it would affect her detrimentally. In a subsequent email, she said that her anxiety was too acute for her to attend an appeal meeting and so the appeal was dealt with in writing.[24]In terms of mitigation, the claimant had run two businesses after her dismissal on a self-employed basis – a wedding planning business which had also been in existence during her employment for the respondent, and a removal business (using a van). There was very limited[25]The claimant was pressed during cross examination about why she had chosen to go self-employed rather than seeking new employment.[26]There was very limited evidence indeed before the Tribunal about the claimant’s earnings from both businesses. She had disclosed her selfassessment tax returns from 2021/2022. Her oral evidence was to the effect that things had been much the same subsequently. These disclosed a profit of £3,973 from the wedding business but no profit in the other business. They did not evidence what drawings the claimant had made from either business.[27]The respondent adduced two-page written witness statements only, from:a. Martin Storer, Trustee and Director. He explained about the financial position of the respondent and the closure of the children’s home in late 2021 and subsequent redundancies amongst the staff. He said that the claimant would also have been dismissed for redundancy in January 2022.b. Jospeh Sabien, CEO. He also explained about the redundancies and asserted that the claimant would have been dismissed, had the disciplinary hearing proceeded. He said the claimant would in any event have been dismissed for redundancy in January 2022.[28]Neither witness attended the remedy hearing to be questioned. The respondent did adduce evidence from the redundancy process from late 2021/early 2022 to the effect that colleagues in the claimant’s team were put at risk of redundancy and dismissed – there were letters of termination for “Amy” and “Bianca”. Most of the staff were made redundant. This was evidence was put to the claimant by Mr Mahmood during crossexamination. The claimant did not dispute the closure of the home in which she worked, but asserted that there were other roles within the respondent into which she could have been redeployed. Oral Closing Submissions[29]Mr Mahmood submitted as follows on behalf of the respondent:a. The claimant had limited financial losses. She had committed a breach of confidentiality, he alleged, and the respondent had not been able to identify any other link to the source. It had been left with no option but to discipline the claimant.b. After a fair process, it was likely that the claimant would have been dismissed.c. If she had remained in employment, it was likely that she would have remained on SSP until her eligibility expired.d. The claimant would have returned on phased return had she come back.e. Even if she had returned to work, due to financial constraints, the home in which she had worked had since ceased operating. She would have been subject to redundancy as her fellow support workers had been.f. He submitted that the claimant had failed to take reasonable steps to replace her lost earnings. She had not looked for any other job but had engaged in self-employment due to the flexibility this gave her.g. The claimant said she had survived on £3,973 profits per year and had received no assistance from the welfare benefits system – this was not credible evidence, he said.h. The respondent submitted that the relevant period of financial losses was from October 2021 to January 2022. He said, had the claimant not been dismissed for misconduct, her employment would have terminated by reason of redundancy in any event.i. In terms of injury to feelings, the claimant had experienced medical issues prior to her employment – the respondent had exacerbated the condition but had not caused it.j. He said that an award should be in the lower band of Vento as it was a one-off termination.k. He referred to the case of Mr Y Mahmood v Rotherham Metropolitan Borough Council, 1803889/2020, ET, which he suggested contained an award of injury to feelings on analogous facts.l. He submitted that the Tribunal should not grant interest.[30]The claimant submitted as follows:a. During the time she was employed by the respondent, her mental health had declined and her medication had increased. The treatment had a profound effect and made her fearful of working again.b. She set her business up due to having “no other choice” – she did not feel able to work for someone else. She had no funds and used assets she already hadc. She placed her claim towards the higher end of the middle band of Vento.d. She submitted (on the redundancy risk) that the respondent did still exist in another form and was “not completely gone”. Discussion and Conclusions Injury to feelings[31]The Tribunal firstly considered an award for injury to feelings. This award was based on the discrimination as found, namely the respondent’s decision to dismiss the claimant on the basis of her health issues, rather than to carry out a disciplinary process in writing.[32]We took account of the fact that the respondent’s decision involved the dismissal of the claimant, which we considered to be a very serious step to take. There was no dispute that the claimant had known underlying mental health issues, which we accepted were likely to have been exacerbated by such a step. The respondent must, as the caselaw requires, take its victim as they find them.[33]We also considered the claimant’s feelings of frustration at not having a chance to prove herself innocent of the misconduct alleged. It was evident that she suffered shock and considerable stress and anxiety due to her dismissal. She also experienced a significant loss of trust in any potential employer.[34]On the other hand, we also took account of the fact that some of the claimant’s hurt and upset feelings were linked to her broader treatment by the respondent (the underlying disciplinary allegations which surfaced in late 2020 and the protracted attendance management process) and were not simply about the discriminatory dismissal. It was not possible to divide the claimant’s feelings, but in any event the most serious consequence for her (namely dismissal) was discriminatory.[35]We also took account of the fact that the claimant did not adduce any medical evidence to support her claim for injury to feelings.[36]The Mahmood case cited on behalf of the respondent involved a firstinstance award of £4,000 for injury to feelings to a successful claimant. The successful disability discrimination claims in that case related solely to a single meeting and a subsequent letter about a flexible working request. Although the claim had also been about a dismissal, that part of the claim did not succeed or was withdrawn. The case did not therefore assist in the present circumstances and was not analogous.[37]We agreed that the appropriate award in the present case was £12,000 for injury to the claimant’s feelings arising from her dismissal, based on the 2021/22 Vento bands, namely the lower end of the middle band. We did not consider that the hurt occasioned to the claimant’s feelings as a result of her discriminatory dismissal warranted an award in the lower band. Financial losses[38]In terms of financial losses, the main factual issues we needed to assess were the likelihood of the claimant being dismissed in any event, and the impact of the same on her financial losses. There were two significant risk factors for the claimant here, in looking at what may have happened but for the discrimination:a. Firstly, a risk that she may have been dismissed for misconduct following a written disciplinary process; andb. Secondly, a risk of dismissal for redundancy when her former place of work closed down in early 2022. Consideration of financial losses and discounts applied[39]We firstly considered what the likely outcome of the written disciplinary process would have been, based on the evidence before us.[40]We were not giving any view on whether or not the claimant was guilty of the misconduct alleged – we were simply assessing what the chances were of this particular respondent having done, if the disciplinary process had gone ahead in writing.[41]We did not consider that the claimant’s dismissal was inevitable given what was said by the respondent in correspondence (noted in the previous liability decision) about the outcome not being a foregone conclusion and the claimant being a valued member of the staff team. We were also mindful that the claimant may have been able to rebut the allegations to the satisfaction of the respondent’s management.[42]On the face of it, the allegations of breach of confidence were serious, and this respondent had considered it had a sufficient case for the claimant to answer to take it to a disciplinary hearing.[43]In assessing the likelihood of dismissal, we also took account of the fact that the claimant had less than two years’ service (having commenced employment in January 2020) and so would not have had the legal right to claim unfair dismissal had she been dismissed for misconduct by the respondent at any point during 2021.[44]We concluded that the chance of the claimant being dismissed by this particular respondent was reasonably high, 75%, and that accordingly the claimant’s financial losses were to be limited to 25% going forwards, to reflect the risk of dismissal, from when those disciplinary proceedings would have concluded. A 75% discount was therefore applied to those losses to reflect that risk.[45]We decided that a written disciplinary process would have taken this respondent around one month to complete in writing (from the point when it dismissed her at the end of August 2021), running until 1 October 2021 (which coincided with the claimant’s paid notice period in any event, so there was no loss). First period - Losses 1 Oct 2021 to 12 Nov 2021 (6 weeks) – phased return[46]From 1 October 2021 until 12 November 2021, had she not been dismissed, we considered that the claimant would have undertaken a phased return for a period of six weeks, receiving 50% of her net salary plus SSP during this period.[47]Her average weekly net salary (based on the period from March to November 2020 (when she was last at work normally) was £276.19 and her average weekly employer pension contributions were £5.79.[48]The claimant’s loss of earnings in this period was therefore assessed as follows: Earnings: 6 x (50% x £276.19) = £828.57 Plus approximated amount of SSP 6 x (50% x £96.35) = £289.05 Sub-total before discount: £1,117.62£1,117.62 x 25% = £279.41 (applying the 75% discount) Loss of employer pension contributions: 6 x £5.79 = £34.74£34.74 x 25% = £8.69 (applying the 75% discount)[49]The discounted loss of earnings and pension in this period: £279.41 + £8.69 = £288.10 Second period - Losses 13 November 2021 to 10 January 2022 (8 weeks)[50]During this period, had she not been dismissed, the claimant would have been back at work for the respondent. From 13 November 2021, had she not been dismissed earlier in 2021, the claimant would have been working during this period on a full-time basis. Earnings: 8 (weeks) x £276.19 = £2,209.52 (before discount) £2,209.52 x 25% = £552.38 (applying the 75% discount) Loss of employer pension contributions: 8 x £5.79 = £46.32£46.32 x 25% = £11.58 (applying the 75% discount)[51]The discounted loss of earnings and pension in this period: £552.38 + £11.58 = £563.96 Third period - Potential loss from 10 January 2022 onwards – redundancy risk[52]In late 2021, the respondent considered closing the part of the charity in which the claimant was employed, which closed in early 2022. Most of the staff who worked within it were made redundant. Some were redeployed elsewhere in the charity.[53]By 10 January 2022, we considered that, if the claimant had still remained in employment on this date and not been dismissed for misconduct during 2021, there was a 75% chance that the claimant (who would have been one of 14 support workers at risk of redundancy) would have been dismissed for redundancy. 10 January 2022 was the date on which her former colleagues who were dismissed were given notice.[54]We considered that there was a 25% chance that the claimant may have secured alternative employment as a well-being practitioner, 20 hours per week assumed at the same hourly rate of £8.75 per hour (one of the possible alternative roles at that time, the most likely to have been suitable).[55]In terms of the claimant’s financial losses, by this stage, two 75% discounts now needed to be applied one after the other, as a result of, firstly, the risk of the initial misconduct dismissal, and secondly the risk of a redundancy dismissal. In essence, after 10 January 2022, we considered there was only a very limited prospect that the claimant would still have been in employment for the respondent due to these two consecutive risks she would have faced, absent the discrimination.[56]Possible earnings from 10 January 2022: 20 hours x £8.75 = £175 per week 75% discount for first dismissal risk (misconduct) (175 x 25%) = £43.75 Further 75% discount for second dismissal risk (redundancy) (43.75 x 25%) = £10.94 (gross) per week (doubly-discounted potential loss).[57]We did consider that there was, however, any actual loss from this point onwards after the discounts. The claimant focused upon two selfemployment businesses after her dismissal. We had very limited evidence about what income the claimant was drawing from her two selfemployment businesses (for example, no bank statements) to sustain her from mid-2021 to date. We only had copies of self-assessment returns for the 2021-22 tax years. The wedding business was in “profit” overall for 2021-22, in the sum of £3,973.[58]We found it likely on balance that by this point in time (10 January 2022 onwards) the claimant was drawing some income from the two businesses which was in excess of the heavily discounted loss arising by this same stage, namely £10.94 per week. She did not claim any state benefits.[59]We concluded that her very limited, doubly-discounted loss of earnings from 10 January 2022, £10.94 per week, to take account of the two significant risks of dismissal above, was on balance less than the claimant must conceivably have drawn per week from her two self-employment businesses. So, we found that there was no ongoing financial loss, arising from the discrimination, after 10 January 2022.[60]Given the limited period of losses, we did not consider that the claimant had failed to mitigate in that period.[61]The total financial loss awarded was therefore £852.061, namely the total arising from the first two periods above. Interest[62]We decided to exercise our discretion and award interest to the claimant, calculated as follows. Date of discrimination 29 August 2021 Date of hearing 22 May 2023 Days in period: 632 Mid-point: 11 July 2022 (316 days to hearing) Interest on injury to feelings: (£12,000 x 8%)/365 = £2.63 per day 632 x £2.63 = £1,662.16[63]Total financial loss: £852.06 (£852.06 x 8%)/365 = £0.187 per day 316 x £0.187 = £59.09[64]Total interest: £1,721.25 Grand total[65]£12,000 (ITF) + £852.06 (financial loss) + £1,721.25 (interest) = £14,573.31[66]The respondent is ordered to pay to the clamant the total sum of £14,573.31. JUDGMENT having been sent to the parties on 10 March 2023, following oral judgment and reasons on 21 February 2023, and written reasons having been requested on behalf of the respondent, the written reasons set out further below are provided: The judgment had determined that the claimant’s claim for discrimination arising from disability was well-founded and succeeded. .
The Relevant Law
[67]Simler P concluded that the tribunal had applied too strict a causation test (paragraph 66): The critical question was whether on the objective facts, her refusal to return arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences. Burden of proof[68]As with other types of discrimination complaints, a claimant bringing a complaint of s.15 discrimination bears an initial burden of proof. The claimant must prove facts from which the tribunal could decide that an unlawful act of discrimination has taken place.[69]This will mean the claimant has to show:• That the claimant was disabled at relevant times;• That the claimant has been subjected to unfavourable treatment;• A link between the disability and the “something” that is said to be the ground for the unfavourable treatment;• Evidence from which the tribunal could infer that the “something” was an effective reason or cause of the unfavourable treatment.[70]If the claimant proves facts from which the tribunal could conclude that there was s.15 discrimination, the burden shifts, in accordance with s.136 EqA, to the respondent to prove a non-discriminatory explanation, or to justify the treatment under section 15(1)(b). Objective Justification[71]The respondent will successfully defend the claim if it can prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim.[72]If the respondent cannot demonstrate a legitimate aim, it will fail.[73]In many cases, the aim may be agreed to be legitimate but the dispute will be about the proportionality of the means chosen to achieve that aim. This will involve an objective balancing exercise between the reasonable needs of the respondent and the discriminatory effect on the claimant: a test established in the context of indirect discrimination in Hampson v Department of Education and Science [1989] ICR 179 CA.[74]Legitimate aims are not limited to what was in the mind of the employer at the time it carried out the unfavourable treatment: ICTS (UK) Ltd v Visram EAT 0344/15.[75]Factors to be considered in the balancing exercise may include:• Whether a lesser measure could have achieved the respondent’s legitimate aim• Whether there has been a failure to comply with the duty to make reasonable adjustments. Closing Submissions[76]Both parties made oral submissions, summarised as follows. Mr Williams’ oral submissions on behalf of the respondent[77]The Tribunal heard firstly from Mr Williams, who submitted as follows, in summary. He said:a. Firstly, i. The alleged breach of confidentiality was a serious matter in the respondent’s business and this was acknowledged by the claimant herself. It warranted an investigation and potential disciplinary proceedings. ii. The process followed was fair and the claimant in cross examination had agreed that she had ample opportunity to put her side of the story during the respondent’s investigation. iii. He asked that the Tribunal infer from next phase of events that, as soon as disciplinary phase was triggered, the claimant had “refused” to properly engage and, he said this was confirmed at [207] (the email of 6 August 2021 above) where between the responses to questions 6 to 8 the “stumbling block” was the disciplinary process and “nothing else”.b. Secondly, i. The respondent had sought to achieve its legitimate aim by concluding the disciplinary process, because of its reputation and because of “statutory safeguarding issues”. An adjustment could not be made to make it go away, he said. ii. Because the claimant “appeared incapable” of engaging with the disciplinary process, but did engage with OH and medical capability process, he submitted that it was “the fault of the claimant and nothing to do with her disability”.c. Thirdly, i. He submitted that the respondent engaged with the claimant “as fairly as it was able to do”. He said the claimant’s welfare was “paramount” in the respondent’s mind and referred (in very general terms) to various emails which he said demonstrated this. He said it had been a dialogue of equals – the parties were speaking as medical health professionals and understood the language of adjustments ii. There had been no discrimination by the respondent, he said. The “pivot of the entire matter was the avoidance by the claimant of the disciplinary process”. The respondent looked to the medical capability process and the “only step available to it at the end was dismissal”.[78]The Tribunal asked Mr Williams what specific emails he had in mind in suggesting that the claimant’s welfare had been paramount. He referred to pages [155, 156, 166, 173, 175, 180, 193 – 195].[79]The Tribunal also asked Mr Williams what the respondent’s position was on the possibility of concluding the disciplinary process in another way, for example in writing, in light of evidence heard about this possibility the previous day. He replied that the medical capability and OH processes had been done by the claimant in writing. He said it was “obvious” it could have been concluded in that way “if the claimant had asked for it”. It was, he said again, “a dialogue of equals”. He said that the claimant did not suggest this possibility and so this left the respondent in the position of having “no alternative” but to dismiss the claimant. The claimant’s oral submissions[80]The claimant submitted as follows, in summary:a. She said that the respondent did not follow a fair procedure. The respondent had failed to consider the option of offering a disciplinary hearing via a video link; it could also have been done without her as all of her points had been put across.b. The claimant mentioned that she had been warned that not to attend the disciplinary hearing would be treated as misconduct – she had felt pressured to come in despite being off sick.c. She said the dismissal was put back on to her as the respondent claimed her dismissal was down to her not providing details of adjustments. She submitted that the respondent had an obligation to consider reasonable adjustments and, at the time of deciding this, it had unreasonably relied on her inability to list adjustments.d. She said her case should have been handled much more sensitively given her line of work and the respondent would know how anxiety can affect a person – its witnesses had years of experience in that field.e. She said staffing at the respondent was always changing and recruitment happening.f. She said the bottom line was that she was dismissed because of what was wrong with her.
Discussion and Conclusions
[81]The Tribunal carefully considered the evidence and submissions and the relevant law. We made findings as follows on the issues to be determined, to decide whether the claimant’s dismissal amounted to unlawful discrimination arising from disability. Was there unfavourable treatment?[82]The claimant was dismissed by the respondent. This was clearly unfavourable treatment. What caused the dismissal and was this in consequence of the claimant’s disability?[83]The claimant was dismissed because of her ongoing sickness absence (the “something”). This was plain from the respondent’s letter of dismissal. It said: “I have regretfully been left with no alternative other than to terminate your employment on the grounds of ill health”.[84]Did that something arise from the claimant’s disability? The Tribunal found that it did. She was absent from work due to depression and anxiety and so it was in consequence of her disability. Burden of proof[85]The Tribunal found that the claimant had shifted the burden of proof to the respondent, for the purposes of objective justification. The respondent was therefore obliged to prove that it had a legitimate aim (or aims) and that the claimant’s dismissal was a proportionate means of achieving the aim(s). Objective justification[86]The respondent had attempted to plead its legitimate aim on 19 October 2022, as follows [39]:11. The claimant refused numerous attempts to engage with her by the Respondent – she made it clear that she would only engage on condition of the disciplinary matter being dropped.12. The Respondent made it clear throughout the correspondence with the claimant during this time that they would take whatever steps necessary to assist and facilitate the claimant’s return to work. This offer included a phased return and other arrangements.13. Finally, an OH meeting via telephone happened in August 2021. It recommended a return to work by the claimant. She refused to return to work.14. There was an impasse with the claimant regarding her ill health and the Respondent’s requirement to complete the disciplinary process. The claimant had made it clear she no interest in returning to work unless the disciplinary process was cancelled by the Respondent. No mention was made of her illness.15. Following advice from their HR partners Peninsula Business Services the Respondent had no other option but to dismiss the claimant. The claimant was allowed to appeal the decision to dismiss her.16. The Respondent upheld the decision to dismiss in a letter to the claimant on October 1st 2021. The claimant was dismissed with 1 months’ notice. The Respondent adamantly refutes the allegation that the claimant was dismissed on the grounds of her disability or from the absence arising from the disability.17. With refence to s. 15 (1)(b) of the Equalities Act the Respondent relies on the following legitimate aim / proportionate means: to complete the statutory disciplinary processes the claimant would have to engage with the process. The Respondent’s charity accreditation would otherwise be at risk.18. It was for refusing to engage, NOT her absence as a consequence of her disability that the claimant was dismissed.19. It is for the tribunal to balance the reasonable needs of the business against the discriminatory effect of the employer's actions on the employee. The Tribunal submit that the Respondent would be in breach of its statutory duty if it retained the claimant.20. When determining whether or not a measure is proportionate it is relevant for the tribunal to consider whether or not a lesser measure could have achieved the employer's legitimate aim. The Tribunal submit that in the circumstances there was no alternative to the Respondent’s course of action and that it can be objectively justified.[87]As noted earlier, the Tribunal raised this document with Mr Williams before the start of the evidence, asking if the respondent stood by this document as it was put. He did not depart from it and sought to stand by it.[88]The Tribunal considered that whether the respondent’s legitimate aim relied upon was either:a. The aim of completing the disciplinary process orb. The aim of managing the claimant’s absence from work (or related to this) orc. Both.[89]The first potential aim above, disciplinary-related, appeared to be suggested in Mr Willams’ document of 19 October 2021, but the second attendance management-related aim appeared to be indicated on the face of the contemporaneous documents (including the letter of dismissal) and by the respondent’s witness evidence.[90]In either case the Tribunal considered that issue as to whether the respondent’s decision to dismiss the claimant was a proportionate one came back to the same underlying point. The "impasse", as the respondent’s witnesses termed it, was the combination of, on the one hand, the claimant's inability to return to work due to her anxiety about the outstanding disciplinary process (as was clearly apparent to the respondent from the OH advice and the claimant's email of 6 August 2021) and, on the other hand, the respondent being apparently wedded to completing that disciplinary process only via an in-person hearing.[91]The key question for the Tribunal on the issue of proportionality was whether that impasse could have been addressed by some action or step other than the respondent dismissing the claimant on grounds of ill health, as the respondent did.[92]The respondent witnesses made repeated assertions that they were obliged to continue with and conclude disciplinary investigation. The precise basis of those assertions was not in evidence before the Tribunal. Whilst the respondent may have had a reasonable need to conclude the disciplinary process, the Tribunal also found that the respondent did not consider the possible alternative to ill-health dismissal of concluding the disciplinary process in writing with the claimant.[93]The respondent’s disciplinary investigation report was only based on limited evidence. The claimant had not seen the email from the complainant at the time of the investigation or the summary of the CEO’s call with the complainant at the time. A process of written questions and answers could reasonably have been devised to progress and ultimately conclude the disciplinary process. This would likely have involved a detailed series of questions, for example like the 20 written questions the respondent asked of the claimant for the earlier welfare meeting or the 10 written questions which she was asked by the respondent, and to which she responded (by email on 6 August 2021) for the medical capability meeting.[94]The claimant clearly disputed the content of the complainant’s email of 3 November 2020 (in her evidence before the Tribunal) and the written process would invariably have allowed her the opportunity to set out her concerns about the complaint in writing and allowed the respondent to consider them.[95]A written process would also have allowed an opportunity for the claimant to raise follow-up points, such as the respondent pursuing further enquiries arising out of her written responses, such as the possibility that there were other sources of the complainant’s information about occurrences in the home.[96]The respondent had stated in the claimant’s letter of dismissal: “There is no predetermined outcome to this hearing, and we have never had the chance for you to attend the hearing to explain your side in a formal setting. It may well be that there is no further action to take, however, to determine this there would need to be a hearing take place. This is something that would need to happen upon any return to work so the process could be ended”.[97]The appeal outcome letter also stated: “There is no predetermined outcome and it may not be the case that any disciplinary action would be taken, but there is a need to investigate the complaints that were raised”.[98]The likely outcome of the disciplinary process was therefore not certain, although one possibility was the dismissal of the claimant. The Tribunal noted that the respondent had concluded the medical capability process, likewise with a risk of the claimant’s dismissal as an outcome, on the papers and in writing with the claimant. The Tribunal could see no viable distinction between respondent concluding the disciplinary process and medical capability process in writing, on the evidence before it. Each process had an underlying risk of the claimant’s dismissal at its end.[99]A written conclusion to the disciplinary process seemed, to the Tribunal, an obvious route for the respondent to pursue, given what the claimant was saying to the respondent and what was said in the OH report about the barrier to a return to work by the claimant.[100]On the issue of proportionality, balancing the reasonable need of the respondent to conclude the disciplinary process and/or to address the claimant’s ongoing sickness absence, with the potentially discriminatory effect of the dismissal on the claimant, we found that there was, available and open to the respondent, a non-discriminatory alternative to dismissing the claimant in the circumstances, namely facilitating a written conclusion to the disciplinary process.[101]A written disciplinary process would have given the claimant the opportunity to participate in that process. It would have enabled the respondent would get further information it needed to conclude the disciplinary procedure to meet its asserted obligations. It would, subject to the outcome, potentially have allowed a valued and well-regarded employee to return to work if the allegations were not upheld.[102]The claimant was on SSP whilst absent from work, and the respondent’s evidence did not indicate that, after the claimant was dismissed, she was directly replaced, as was claimed in the letter of dismissal. The claimant’s integrity was impugned by the disciplinary allegations and they were impacting on her health.[103]Weighing up the balance here, the Tribunal found that it weighed heavily in favour of the respondent progressing the disciplinary process in writing rather than dismissing the claimant due to her ill health.[104]The Tribunal rejected the respondent’s assertions that the claimant had “refused” to engage with the disciplinary process and rejected its assertions that the onus was on the claimant to have suggested the course of action of concluding the disciplinary process in writing. The issue of some alternative course for the disciplinary process was not raised with the claimant by the respondent - the claimant had only been offered inperson disciplinary hearings in late 2020, which she was too unwell to attend.[105]The disciplinary issue and the disciplinary process was not been revisited by the respondent, even in light of the OH report which made it very clearly apparent what the underlying issue was, other than the respondent deciding that it could not simply drop the process, but that was not its only option. The delay in the OH report being obtained was not the fault of the claimant.
Conclusion
[106]The Tribunal concluded that the respondent’s dismissal of the claimant was unfavourable treatment arising from her disability; that treatment was disproportionate, in view of the alternative of concluding the disciplinary process in writing, and was therefore not objectively justified in the circumstances. The claimant’s claim of discrimination arising from disability therefore succeeded.