Employment Judge Howden-EvansIn person for claimantMr Howells (instructed by Counsel) for respondentDate 17 November 2019
JUDGMENT
The unanimous decision of the Employment Tribunal is that contrary to s39(2) Equality Act 2010 the respondent has treated the claimant unfavourably because of something arising in consequence of her disability (s15 Equality Act 2010).
REASONS
[1]The claimant, Ms Thomas, commenced employment with the Welsh Government (technically being employed by the Welsh Ministers), in 2011. She continues to be employed by the respondent.[2]Ms Thomas had undertaken a number of different roles for the respondent before, in August 2017, moving to the Advanced Manufacturing and Materials (“AM&M”) department, starting a new post as a Business Development Executive (“BDE”). In February 2018, the claimant was promoted to the post of Senior Careers Policy Manager in a different department.[3]This claim relates to the claimant’s experiences whilst working in the AM&M department, in particular events during winter 2017/18.[4]The claimant has general anxiety disorder, which causes her to experience extreme anxiety, panic attacks and OCD. The respondent accepts that, at all material times, the claimant has had a disability (as defined in 6 Equality Act 2010) by reason of her general anxiety disorder.[5]Following a period of ACAS early conciliation, on 14th March 2018, the claimant presented an ET1 claim form alleging disability discrimination (per s15 Equality Act 2010). By ET3 response, the respondent denied all allegations.
The Issues
[6]During the case management hearing on 5th April 2019, the claimant and employment judge, accepted the issues were correctly identified in the respondent’s draft list of issues. This identified the issues as: Discrimination arising from disability (s15 Equality Act 2010)
The Issues
[1]Did the Respondent treat the Claimant unfavourably as alleged in the further and better particulars dated 20 March 2019, in particular:a. Senior manager failed to respond to email concerning unfair treatment. The concern was also brought to their attention by the Equality and Diversity department.b. Requirement to attend work as normal while the rest of the team were excused from duty during core hours (a fabricated meeting was applied to all staff calendars to cover the event (12pm to 3pm). The party was also deemed to be a ‘3-line whip’ (obligated to attend).c. Failed to provide me with alternative transport options, which could have made it possible for me to attend the party ie taxi / support worker. Another staff member with a visible disability was offered a taxi.d. My occupational health report was disregarded, in addition with the recommendation: “A requirement for management support and understanding in relation to Amanda’s complex issues”.e. Line manager ceased all contact with me after I raised concerns of unfair treatment i.e. I was to treat the day as normal and attend work, while the rest of the team were excused from work duties during core hours.f. Segregated me and ceased any form of support, correspondence and line management after I raised concerns of unfair treatment.g. Notification of transfer to a different post because I was unable to use public transport and occasionally the telephone. The transfer was suggested after I raised concerns of unfair treatment.[2]If so, was that treatment because of something arising in consequence of the Claimant’s disability pursuant to s15(1) Equality Act 2010?[3]If so, can the Respondent show that the said treatment was in pursuit of achieving any legitimate aim?[4]If so, what was, or what were, the legitimate aims?[5]Was the said treatment a proportionate means of achieving any of the alleged legitimate aims pursuant to s15(1)(b) Equality Act 2010?
Remedy
[6]What award (if any) for injury to feelings should be made?[7]Do the circumstances warrant an award for aggravated damages?[8]If so, how much should that award be?
The Hearing
[12]Throughout the Hearing, the claimant represented herself. The respondent was represented by Mr Howells, counsel.[13]The tribunal had the benefit of an agreed bundle of circa 300 pages. Detailed witness statements were prepared for each of the 4 witnesses.[14]At the outset of the hearing, the tribunal read the bundle of documents and witness statements. We started hearing evidence in the afternoon on Day 1 and finished hearing evidence on Day 3. All witnesses gave evidence on oath. In relation to each witness, the procedure adopted was the same: the tribunal had already read each witness’s statement in full, so there was: 14.1. opportunity for supplemental questions (or for Ms Thomas to clarify anything she wished to) before 14.2. questions from the other side; 14.3. questions from the tribunal; and 14.4. any re-examination / final opportunity for Ms Thomas to explain anything she felt she hadn’t been able to explain previously. Mindful of the claimant’s health, and the health and needs of other witnesses, the tribunal ensured there were regular comfort breaks and that all witnesses felt able to stop at any time they needed to take a rest.[15]During the hearing, we heard evidence from: 15.1. The claimant on Day 1 and the morning of Day 2 of the hearing; 15.2. Ms Richards, the claimant’s line manager in the AM&M department, and 15.3. Mr Willox, the Head of Business Development in the AM&M department on the afternoon of Day 2; and 15.4. Mr Davies, Deputy Director for the AM&M sector on Day 3.[16]The final hearing had been listed with a time estimate of 3 days. By the end of the final day we had heard all the evidence and oral closing submissions (which Ms Thomas supplemented with written submissions), but there was insufficient time for the tribunal to consider its decision. A chambers discussion was arranged on the first available date.[17]Following the hearing, the tribunal were able to meet to consider their decision on 2nd September 2019. The employment judge sincerely apologises for the delay in promulgating this judgment. Findings of Fact The claimant’s move to the AM&M team
Findings of Fact
[18]In Spring / Summer of 2017, the claimant applied for and was interviewed, by Ms Reynish, for a post in the Advanced Manufacturing and Materials Sector. Her application was successful, but by the time she met Ms Reynish and Ms Richards in July 2017, there had been two changes – Firstly the post the claimant had applied for was no longer available, as a different employee had moved out of the team and the claimant was now needed to fill a slightly different role within the team. Secondly, Ms Reynish was not going to be the claimant’s line manager (as the claimant had originally understood). Ms Richards was going to be her line manager.[19]The claimant was disappointed that Ms Reynish was not going to be her line manager, as she knew Ms Reynish through mindfulness sessions (that the claimant ran for staff). Ms Reynish was aware of the claimant’s health condition and was familiar with the symptoms of anxiety. The claimant was apprehensive about Ms Richards being her line manager as she didn’t know Ms Richards.[20]The claimant has a Welsh Government Workplace Adjustment Passport (“Passport”) which is a person’s personal reference guide for colleagues from whom they require assistance. This is a voluntary document which a person can share with as many or as few colleagues as they require. There is a section within the Passport which can be shared with a line manager and a different section that can be shared with the facilities team. The claimant was able to update her Passport at any time, as she felt necessary, to explain the adjustments that would assist her.[21]At the meeting in July 2017, the claimant explained to Ms Reynish and Ms Richards the adjustments that would support her in her new role. For instance, it was agreed that the claimant could continue to work from home two days each week. However, the claimant did not share her Passport with Ms Richards, at this point in time, and so Ms Richards did not have a full understanding of the claimant’s needs or the adjustments referred to in the Passport.[22]The claimant shared her Passport with Ms Richards shortly after 19th October 2017. Each Passport holder is free to choose whether to share their passport with colleagues; the tribunal accept this is a personal choice and a Passport holder has to feel comfortable sharing this sensitive information with another person. As Ms Richards did not see the claimant’s Passport until October 2017, there were a couple of months (August to October 2017) during which, Ms Richards was trying to understand the adjustments that would support the claimant, but the claimant perceived Ms Richards to be questioning her adjustments. For instance, Ms Richards understood the claimant was not comfortable car-sharing, yet on one occasion the claimant was comfortable giving Ms Richards a lift in her car. When Ms Richards asked the claimant about this, the claimant perceived Ms Richards to be challenging the adjustments the claimant required.[23]The tribunal accept that both the claimant and Ms Richards were in a difficult position. The claimant was undertaking a different role from the one she had expected to be doing and had a different manager, who she was not yet comfortable with. Ms Richards had no prior experience of managing a colleague that has symptoms of ongoing anxiety and only had limited information about the claimant’s needs. The claimant’s role[24]The claimant was working as a Business Development Executive, in the Business Development team of the Advanced Manufacturing and Materials Sector and worked out of an office in Treforest. The AM&M sector had 30 to 40 staff working across Wales, with the majority of these being based in the office in Treforest. The tribunal note a number of the AM&M colleagues had disabilities.[25]The AM&M sector was responsible for creating and supporting job numbers, expenditure and adding value to the Welsh economy; in the five years to April 2019 it had created, assisted and supported 11,800 jobs, stimulated £825million of private sector investment and supported over 200 pan-Wales companies.[26]Each member of the Business Development team (including the claimant) had their own portfolio of account-managed companies. The role entailed supporting individual companies and building relationships to secure growth and inward investment to the region. The claimant attended on-site visits with individual companies and trade events, such as the Wales Automotive Forum dinner. I[27]The Business Development team has a number of Business Development Executives (like the claimant) and Business Development Managers (like Ms Richards). The change in workstation[28]The Business Development team work in an open plan office environment, which can get very noisy, when a number of conversations are being conducted at once. Individual colleagues would be making phone calls or attending appointments with clients, returning to this office and bouncing around ideas. It is a very dynamic area to be working in.[29]The claimant was finding it difficult to work in this environment and had taken to wearing headphones to try to block out the noise. On 19th October 2017, at her performance review meeting with Ms Richards, the claimant asked to move to her old desk, which was located on the floor above, as the claimant found that to be a calmer environment. It was at this meeting that the claimant mentioned her Passport and subsequently provided Ms Richards with a copy of it.[30]By 8am on 23th October 2017, Ms Richards had made arrangements for the the claimant to work from her old workstation on the floor above. As this desk was assigned to a different department this could only be a temporary arrangement. Ms Richards did not tell the claimant that this, as she was concerned it might cause the claimant to worry; instead Ms Richards arranged a referral to occupational health, to ensure the claimant could permanently be located in at her old workstation in a different department (whilst still working for AM&M).[31]On 24th October 2017, the claimant, Ms Richards and Mr Willox met to discuss adjustments to support the claimant and the implications of her new location. Prior to this meeting, the claimant had shared her Passport with both managers. Ms Richards and Mr Willox were concerned that the claimant was new to the department and to her role and was now working away from colleagues that could be on hand to support her; usually it takes months and years for a Business Development Executive to learn their role and they learn on the job by working alongside more experienced colleagues. Being located away from her co-workers presented practical difficulties, particularly as the claimant had expressed a preference to communicate via email rather than by telephone.[32]During the meeting, the claimant did not wish to discuss details of her adjustments. She explained she did not need to go into detail about why she needed to move. As the move was presented as being essential for the claimant, Mr Willox and Ms Richards accepted the claimant’s decision to be located on a different floor away from the rest of her team. During the course of the meeting, the claimant told Ms Richards she found Ms Richards to be unfriendly and “difficult to open up” with and Ms Richards said she was finding it a struggle to talk to the claimant.[33]Also on 24th October 2017, Mr Davies spoke to the claimant as he was worried about her. He asked her about the change of desks. The claimant explained she was having difficulty with the noise levels in the AM&M room. She also reassured Mr Davies that she was enjoying the role. The Christmas Party[34]On 9th November 2017, the claimant declined an invite to the AM&M Christmas party. The background to this was, prior to the claimant joining the team, the AM&M team had voted to have a pub-crawl type Christmas party on the afternoon of Wednesday 13th December 2017. A similar format had been trialled the previous year and had been a great success. Staff welcomed the opportunity to mingle freely rather than attending a formal sit-down function.[35]The Christmas party had been arranged for 13th December as there was a sector-wide team meeting arranged for 14th December. This meant staff that were located in North Wales already had transport and accommodation arranged for the night of 13th December, to be able to attend the meeting on 14th. Mr Davies was keen to encourage the whole team to attend the Christmas party as it was a rare opportunity for the whole team to socialise together.[36]Arrangements for Christmas parties and the taking of leave appear to vary between the various Welsh Government departments. In the AM&M department, there was a practice of using flexi leave or annual holiday to be able to attend the party (which was starting at lunchtime on 13th December). However, no one explained this to the claimant and the claimant was confused by the party having been entered in everyone’s calendar as a fictitious meeting.[37]Initially, the claimant planned to attend the AM&M Christmas party, as her partner was able to drive her to the venue and was able to be on standby in case she had an anxiety attack. However, by 9th November, her partner’s circumstances had changed which meant he was no longer able to be on standby on 13th December.[38]The claimant declined the invitation by email response to Mr Davies’s PA. This, coupled with the recent change of desks, prompted Mr Davies to be concerned about the claimant. He had noted that the claimant’s relationship with Ms Richards was strained. He asked his secretary to invite the claimant to a meeting on 15th November 2017. When the claimant received the electronic invitation to a meeting with Mr Davies, it caused her to become anxious at the prospect of a further management meeting. She emailed Ms Richards, asking her to provide Mr Davies with a copy of her Passport and explaining that the prospect of another meeting was making her feel anxious; she questioned whether it was necessary for them to meet and said she was not attending the Christmas party “for health reasons”. The move to the Strategy team within AM&M sector[39]As requested, Ms Richards and Mr Davies cancelled the intended meeting with the claimant. Instead, Ms Richards and Mr Davies met Mr Willox on 15th November 2017, with a view to discussing support for the claimant. Mr Davies noted the claimant’s Passport identified the claimant has difficulty commuting in heavy traffic, meeting new people and communicating by phone. Ms Richards mentioned the claimant also had difficulty travelling by shared transport, such as travelling with colleagues by minibus. Mr Davies was concerned that the Business Development Executive role was likely to have a negative impact on the claimant’s health as it necessarily entailed meeting strangers and the claimant was now isolated as she was not working amongst colleagues in the AM&M team.[40]On 29th or 30th November 2017, Mr Davies had a brief discussion with the claimant whilst she was at her desk on the first floor. The conversation started with a discussion about a project the claimant was working on. Towards the end of this conversation, Mr Davies raised the possibility of the claimant moving to the strategy team within AM&M, if she wished. Mr Davies oversaw the strategy team as well as the business development team and was in a position to be able to arrange this transfer if the claimant wanted to move.[41]Subsequently, a meeting was arranged for 14th December 2017 to discuss the possibility of such a move. However, when it became apparent that AM&M was likely to undergo restructuring, by agreement this meeting was postponed until 2018, when the new structure would be known. Events leading up to the Christmas party[42]On 5th December 2017, Mr Davies’s PA circulated an email setting out the arrangements for the Christmas Party (timings and venues). The claimant forwarded this email to Ms Richards, with the comment “Hi Do I have to log as normal with regards to the below? Wasn’t sure what to do so thought it best to ask. Thanks” Ms Richards replied an hour later “Hi Yes Regards Jane” . Ms Richards had intended to discuss this further with the claimant, but didn’t get the opportunity to do so during that day. With the benefit of hindsight, Ms Richards accepts she ought to have given a fuller explanation in her response.[43]A few minutes later, the claimant forwarded Ms Richards’s email to Mr Willox, with the comment “Hi Iain, With regards to the below, I feel a little disadvantaged that because of my health issues I am unable to attend the party so have to treat the day as normal one. Thanks Amanda”.[44]As she hadn’t received a reply from Mr Willox, the next day (6th December 2017) the claimant forwarded the chain of emails to Ms Glenn, the respondent’s Equality in the Workplace team member. Ms Glenn replied within 30 minutes and offered to speak to Mr Willox. When the claimant consented to this, Ms Glenn spoke to Mr Willox and advised him everyone should be treated equitably with regard to the Christmas celebrations.[45]Early on 7th December 2017, Ms Richards spoke to the claimant on the open balcony area of the building. The claimant loudly told Ms Richards she was reporting Ms Richards to HR for discrimination towards the claimant regarding the Christmas party. The claimant said she objected to everyone being “out on the piss” whilst the claimant was required to work. Ms Richards was upset by the claimant’s outburst, which she felt was being overheard by other colleagues. Ms Richards ended the meeting and went to speak to her line manager, Mr Willox.[46]Ms Richards was very upset and in tears during her meeting with Mr Willox. Mr Willox confirmed that HR had contacted him the previous evening making him aware the claimant had made a complaint she felt she was being treated differently. Ms Richards and Mr Willox’s meeting was very brief as she had to leave for a meeting in Monmouth.[47]The claimant was equally upset following the incident with Ms Richards on the balcony. She returned to her desk and was supported by colleagues.[48]Mr Willox’s evidence was that immediately after his meeting with Ms Richards, on 7th December 2017, he had a brief discussion with the claimant, whilst she was at her desk, during which he told her she did not have to attend the party if she did not want to and that she should either work or take one of the types of leave available. His evidence is that he explained that the staff that were attending the party were all taking some form of leave to do so. He said the claimant told him that she was going out with friends anyway. The claimant disputes that this conversation took place. Given her comments in her subsequent emails to Ms Glenn, the tribunal find that if a conversation did take place between Mr Willox and the claimant that morning, it was such a brief conversation that the claimant still did not appreciate that other staff were taking leave to be able to attend the Christmas party.[49]On 8th December 2017, Mr Davies phoned the claimant. As part of this conversation, Mr Davies discussed the possibility of the claimant moving to a different role within the AM&M team.[50]On 13th December 2017, the claimant emailed Ms Glenn again and said she hadn’t received any further correspondence from her line manager or Mr Willox. Ms Glenn replied minutes later and offered to speak to Ms Richards and Mr Willox. The claimant declined this offer.[51]On 13th December 2017, the AM&M Christmas party went ahead. The tribunal note that every person that attended the party took flexi leave or annual leave for the afternoon. In total 20 colleagues attended the party (2 of whom had a disability). 6 colleagues did not attend the party (of whom the claimant was the only person to have a disability). The colleagues that did not attend the party either worked from home or worked in the office; the claimant worked from home.[52]By email dated 14th December 2017, the claimant forwarded an occupational health report (that she had received earlier in December) to Ms Richards. In her email she commented “Jane, OH report for reference. Thanks Amanada”[53]Ms Richards explained she did not acknowledge receipt of this email (and report) until 9th January 2018, as she was not in the office much during the run up to Christmas and she also believed the report was being provided for reference only, rather than for action. The report had been requested to enable the claimant to remain working at the workstation upstairs; she didn’t anticipate there was any further action needed. The tribunal note the report confirmed the claimant should remain working on the first floor and should continue to work from home two days per week. These were adjustments that were already in place for the claimant. The grievance[54]By email of 20th December 2017, addressed to Mr Davies, the claimant lodged a formal grievance, alleging discrimination arising from disability. The claimant asserted 54.1. she had been required to attend work whilst others were permitted to socialise during working hours; 54.2. Mr Willox had not met her for a follow up discussion despite contact via Ms Glenn 54.3. Ms Richards had failed to acknowledge or follow up her occupational health report of 14th December 2017.[55]Mr Davies responded by email within the hour. He confirmed he would action the claimant’s grievance with HR but also offered the claimant the opportunity to talk and pursue an informal resolution to the grievance should she wish. The claimant did not respond this this offer.[56]The respondent’s Deputy Director of Legal Services, Helen Lentle, investigated the claimant’s grievance and produced a lengthy report. Ms Lentle was very thorough in her investigation, interviewing the claimant and three witnesses as well as comprehensively reviewing the documentation. Ms Lentle’s grievance decision (of 8th March 2018) was fair and frank and explained her findings in detail; she noted lessons that could be learnt from the claimant’s experiences and made recommendations, particularly in relation to arrangements for future Christmas parties. Ultimately, she concluded the claimant had not been subjected to disability discrimination.[57]By Notice of Appeal dated 12th March 2018, the claimant appealed Outcomes 1 and 9 in Ms Lentle’s decision, asserting that a colleague with a disability had been offered alternative options to enable them to attend the party, but the claimant hadn’t and asserting she had been discriminated against because of something arising from her disability, namely her difficulty using public transport. She also appealed the grievance officer’s finding that she could not reach a conclusion in relation to whether Mr Willox had spoken to the claimant in the days after the incident on 7th December 2017.[58]Joanna Jordan, Director Mental Health in the respondent’s NHS Governance and Corporate Services was appointed to consider and investigate the claimant’s appeal. She conducted a thorough review, re-interviewing witnesses and making further investigations. In her comprehensive report, of 6th August 2018, she concluded the claimant had not been subjected to disability discrimination. In particular she found that the respondent had not made particular arrangements for a colleague of the claimant; rather an individual member of staff had enquired whether that gentleman wished to share a taxi, which was being paid for by the individual. Colleagues were expected to cover their own expenses in attending the Christmas party, as it would not be appropriate to use taxpayer’s money for this purpose. Ms Jordan also concluded that a meeting had taken place between Mr Willox and the claimant as Ms Richards had recalled Mr Willox referring to the meeting during a later conversation on 7th December 2017.[59]On 14th March 2018, the claimant had presented an ET1 claim form alleging disability discrimination.
The Law
[60]Section 39(2) Equality Act 2010 (“EqA”) provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur and these include (at Section 39(2)(b) EqA) in the way the employer affords the employee access to any benefit, and (at Section 39(2)(d) EqA) by subjecting an employee to any detriment.[61]EqA protects employees from discrimination based on a number of “protected characteristics”. These include disability (Section 6 EqA). Disability Discrimination[62]As Baroness Hale explained in Archibald v Fife Council [2004] UKHL32, disability discrimination is different from other types of discrimination, as the difficulties faced by disabled employees are different from those experienced by people subjected to other forms of discrimination. “…[the Disability Discrimination Act 1995] is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminate against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.”[63]This element of more favourable treatment is reflected in the type of protection that is unique to disability: Section 15 EqA (discrimination arising from disability) which is focussed upon making allowances for disability. Discrimination arising from disability[64]S15 Equality Act 2010 (“EqA”) provides,(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[65]In a s15 claim the tribunal does not need to compare the claimant’s treatment to that of a comparator, real or hypothetical. The claimant must prove “unfavourable treatment”, i.e. that they have been put at a disadvantage, and that this was because of something arising in consequence of the claimant’s disability. The EHRC Code of Practice explains that arising in consequence includes anything which is the result, effect or outcome of the person’s disability.[66]The claimant has to demonstrate unfavourable treatment: it is not enough to show they have been differently treated.[67]In Pnaiser v NHS England and anor [2016] IRLR 170 EAT, Mrs Justice Simler summarised the proper approach to determining s15 claims at paragraph 31, “(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No comparison arises. (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises. (d) The Tribunal must determine whether the reason/cause (or, if more than one) a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act,…the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of section 15(2) makes clear that the knowledge required is of the disability only and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.” Burden of proof[68]S136 EqA provides, Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. …(6) A reference to the court includes a reference to— (a) an employment tribunal;[69]S136 Equality Act 2010 establishes a “shifting burden of proof” in a discrimination claim. If the claimant is able to establish facts, from which the Tribunal could decide, in the absence of any other explanation that there has been discrimination, the Tribunal is to find that discrimination has occurred, unless the employer is able to prove that it did not. In the well-known Igen Limited and others v Wong and conjoined cases 2005 ICR 931, the Court of Appeal gave the following guidance on how the shifting burden of proof should be applied: - It is for the claimant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant that is unlawful. These are referred to below as "such facts". - If the claimant does not prove such facts their discrimination claim will fail. - It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. - In deciding whether the claimant has proved such facts, remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. - It is important to note the word "could" in [s136 Equality Act 2010]. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. - In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. - These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw - Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. - Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of [disability], then the burden of proof moves to the respondent. - It is then for the respondent to prove that they did not commit that act. - To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [disability], since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. - That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [disability] was not a ground for the treatment in question. - Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.[70]However, it is also established law that if the Tribunal is satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious discrimination, then it is not improper for a Tribunal to find that even if the burden of proof has shifted, the employer has given a fully adequate explanation of why they behaved as they did and it had nothing to do with a protected characteristic (e.g. disability). (see Laing v Manchester City Council 2006 ICR 1519) Conclusions Allegation 1: Senior manager failed to respond to email concerning unfair treatment. The concern was also brought to their attention by the Equality and Diversity department.
Conclusions
[71]The tribunal have found that whilst there may have been a very brief conversation between Mr Willox and the claimant on the morning of 7th December 2017 (ie after her email of 5th December 2017), it was not sufficient for her to understand that other staff were taking leave to attend the Christmas party and that she was not actually being disadvantaged. The claimant’s email had said that she felt she was being disadvantaged because of her disability – it must have been difficult for the claimant to take this step and make this comment. The tribunal considers that failing to carefully and fully respond to this comment, particularly when you know that person is experiencing ongoing anxiety disorder, does amount to unfavourable treatment.[72]When we considered the reason for Mr Willox’s failure to fully respond and reassure the claimant, we concluded the main reason for this failure was he was having difficulty managing the ongoing situation between the claimant and Ms Richards. Clearly their working relationship had deteriorated such that both ladies were distressed by each other’s behaviour by this point in time. From late October 2017 onwards, the relationship between Ms Richards and the claimant was not working well. With the benefit of hindsight, the respondent needed to intervene earlier, to support both ladies, but particularly the claimant.[73]Mrs Justice Simler explained in Pnaiser v NHS England (see earlier), that we have to examine the conscious and unconscious thought processes of Mr Willox and ask whether the “something arising in consequence of the claimant’s disability” had a significant (or more than trivial) influence on his decision making. We have found that, whilst the main reason for Mr Willox’s failure to fully respond and reassure the claimant was his difficulty managing her relationship with Ms Richards, the tone of the claimant’s email of 5th December 2017, and the contact he had received from the Equality in the Workplace team member were also having a significant influence on his decision making and in particular his difficulty in fully responding to the claimant. Consciously or subconsciously, he did not know how to respond to an allegation of disability discrimination. This meant he didn’t fully respond and reassure the claimant, which we have found to be unfavourable treatment. The claimant’s allegation of disability discrimination (both in her email and relayed via Ms Glenn) was clearly something arising in consequence of her disability, and it had a significant influence on Mr Willox’s decision not to fully respond and reassure the claimant. The tribunal could not identify how this could be said to be in pursuit of any legitimate aim; nor would we have found this to be a proportionate means of achieving any legitimate aim. The claimant succeeds with this s15 Equality Act 2010 claim. Allegation 2: Requirement to attend work as normal while the rest of the team were excused from duty during core hours (a fabricated meeting was applied to all staff calendars to cover the event (12pm to 3pm). The party was also deemed to be a ‘3-line whip’ (obligated to attend).[74]In relation to this allegation, the tribunal do not accept that there has been any unfavourable treatment of the claimant: the claimant and others (that did not have a disability) were required to work on the afternoon of 13th December 2017. The claimant could have taken flexi leave or annual leave, just as others had chosen to do, to be able to attend the Christmas party. Whilst Mr Davies was quite keen for colleagues to attend the party, as he considered it to be a valuable opportunity for the whole team to socialise with colleagues, there was no 3-line whip. 6 colleagues, including the Claimant chose not to take leave and not to attend the party. It is a shame that the relationship between the claimant and Ms Richards had deteriorated such that the claimant thought she was being put in a different position from her colleagues, when in fact she was not. This s15 Equality Act 2010 claim is not well-founded. Allegation 3: Failed to provide me with alternative transport options, which could have made it possible for me to attend the party ie taxi / support worker. Another staff member with a visible disability was offered a taxi.[75]In relation to this allegation, the tribunal do not accept there has been any unfavourable treatment of the claimant. The tribunal accept that everybody that attended the party made their own arrangements for transport including those that had a disability. At no time prior to 13th December 2017, did the claimant tell Mr Davies, Mr Willox or Ms Richards that she could not attend the party because she had difficulty with transport and needed a taxi and/or support worker. When she was asked why she had declined the invitation, she simply referred to “health reasons”, which did not give her line managers enough information. This was a social event, rather than a business / work event, so the respondent would have found it difficult to justify using taxpayers’ money to pay for the claimant to attend. The claimant could have attended and driven her own car but chose not to. This s15 Equality Act 2010 claim is not wellfounded. Allegation 4: My occupational health report was disregarded, in addition with the recommendation: “A requirement for management support and understanding in relation to Amanda’s complex issues”.[76]In relation to this allegation, the tribunal do not accept there has been any unfavourable treatment of the claimant. The occupational health report simply confirmed the arrangements that were already put in place for the claimant. The claimant had forwarded it “for reference” which does not imply any need to respond. Whilst it would have been better practice to have responded more promptly, the claimant has not experienced any disadvantage by the delay in acknowledging receipt and this did not amount to unfavourable treatment.[77]Further and in the alternative, if we had found this to be unfavourable treatment, this was in no way related to the claimant’s disability. Ms Richards understood the report was being referred to her for information only. This was the reason she did not respond sooner and this has no connection to the claimant’s disability. This s15 Equality Act 2010 claim is not well-founded. Allegations 5 & 6: Line manager ceased all contact with me after I raised concerns of unfair treatment i.e. I was to treat the day as normal and attend work, while the rest of the team were excused from work duties during core hours. Segregated me and ceased any form of support, correspondence and line management after I raised concerns of unfair treatment.[78]The tribunal note that Ms Richards continued to have contact via email with the claimant after 7th December 2017, so these assertions are factually incorrect. Prior to the incident on 7th December 2017, all meetings had been instigated by Ms Richards, who had regularly called to see the claimant on the first floor. Ms Richards had continued to do this even after the claimant had said she found Ms Richards to be unfriendly (in October 2017). In the circumstances in which Ms Richards didn’t arrange meetings with the claimant (in late December 2017), the tribunal does not find this to be unfavourable treatment. There was no reason for Ms Richards to arrange a meeting with the claimant at that time. There was no request from the claimant for a meeting at that time. In addition, the claimant had made an allegation of disability discrimination against Ms Richards and had shouted this at her in a public part of the office. Subsequently the claimant had made a formal grievance against Ms Richards, so Ms Richards was in a difficult position and did not feel comfortable arranging meetings with the claimant for a couple of weeks, and in any event, Ms Richards was out of the office for most of this time. Ms Richards did continue to correspond by email with the claimant up and until the claimant moved to a different post. Indeed, in early January 2018, Ms Richards offered the claimant the opportunity to rearrange a line management meeting. The tribunal are satisfied there has been no unfavourable treatment. This s15 Equality Act 2010 claim is not well-founded. Notification of transfer to a different post because I was unable to use public transport and occasionally the telephone. The transfer was suggested after I raised concerns of unfair treatment[79]The claimant was never notified she was being transferred to different post. In an effort to support the claimant, Mr Davies indicated that he could look at alternative roles for the claimant, if she wished. This was a manager acting responsibly and out of genuine concern about an employee and their wellbeing. Mr Davies was exploring opportunities, to be able to offer the claimant options, one of which would have been to remain in her existing role. There has been no unfavourable treatment. This claim is not well founded.[80]The claimant having succeeded with one of her claims of discrimination arising from disability, the employment judge will set out directions to prepare the case for a remedy hearing in a separate Order.