Ms J Mears v The University of South Wales: 1601128/2017
EMPLOYMENT TRIBUNALS
Case No 1601128/2017
Between
Ms J MearsClaimantThe University of South WalesRespondent
Before
Employment Judge EmeryMr B Jones (instructed by Counsel) for claimantMr O James (instructed by Counsel) for respondentDate 28 February 2020
REASONS
[1]The issue to be determined at this hearing is whether the claimant was disabled as defined at s.6 Equality Act 2010 during the material period set out in the claim – June 2017 to 9 August 2017. At the outset of the hearing, Mr James for the respondent clarified that the only issue in dispute on the issue of disability was whether the condition was “substantial” as defined by the Equality Act. Mr James stated that the respondent was on actual knowledge of her condition and he also stated that the respondent was no longer challenging the claimant’s contention that her condition was long-term.[2]Accordingly, the issue for me to determine at this hearing is: Did the claimant’s impairment have a substantial effect on her ability to undertake normal day to day activities?
The Evidence
[3]The claimant produced a disability impact statement and medical records from Occupational Health, her treating consultant, her GP and other medical records. The respondent does not accept that the claimant accurately records the effect of her condition in her statement, arguing that there is a significant material difference between the contents of her medical reports and her own selfassessment; it says the effects of her condition ceased being substantial in May 2017.[4]I heard evidence from the claimant. Prior to her giving evidence Mr Jones asked that she be allowed what he describes as an ‘aide-memoir’ of typed bullet points on the witness table while she is giving evidence. The reason – the claimant suffers, he says, from short-term memory issues and she wants to ensure that she makes all the relevant points in her evidence. Mr James objected, saying that he wishes to discuss broad issues in her evidence rather than specific dates, that the tribunal should be “cautious” before agreeing to such a request.[5]I determined that the claimant should be allowed to take her bullet-points with her to the witness table. I accepted that witnesses’ evidence should be unscripted and from memory; however, if the claimant has difficulty recollecting events, and bullet-points may prompt, this would be of assistance to the claimant. I considered that this was an adjustment to the rules of evidence which should reasonably be made in the circumstances. In the event, I did not see the claimant referring to her aide memoir when giving evidence.
The Facts
[6]I made the following findings of fact on whether the claimant’s condition had a substantial effect on her ability to undertake normal day to day activities. I do not recite all the evidence I heard, instead confining my findings to those relevant to the issue.[7]The claimant suffered from a brain aneurism on 1 January 2017 which caused a sub-arachnoid haemorrhage which required emergency surgery on 2 January. The claimant was placed in an induced coma and spent seven weeks in hospital, the first two of which she was in a life-threatening condition. She had four surgical procedures, including surgery following a pulmonary embolism.[8]The claimant did not engage in Clinical Psychology services offered to her following her discharge from hospital, on her evidence because she was extremely unwell, she could not walk properly, she was struggling with her mobility and was attending hospital appointments 3 times a week. She was relying on family to drive her to hospital as she did not have the confidence to attend on public transport unassisted. She said that the Neuro Service visited her at home, suggesting group sessions, and “offering me things which at the time I did not want to engage with as I was still struggling with health.”[9]The claimant said that her main treatment was via her neurologist, that she did not understand that the Community Neuro Service would be dealing with her neurological symptoms – that “they talked about coffee mornings and gardening club … they emphasised the support groups.” I accepted the nature of her condition was such that to mid-2017 the claimant was unable to engage with the Community Neuro services available to her.[10]Following the claimant’s discharge from hospital she attended outpatient appointments. On 8 March 2017 attended A&E because of severe headaches. She had breathlessness and issues with her right hand and arm. The claimant was receiving warfarin and stomach injections until June 2017 to prevent further blood clots. Her statement describes her continuing to receive prescribed medication for depression (citalopram, 40mg) and pressure headaches (cocodamol 30mg); the latter medication she describes being able to take only in the evening because of the effect that it had on her. She describes taking antidepressants “I also get very depressed when I have had a bad day”. She describes difficulty lifting due to lack of strength, and problems with her right hand which is “much worse” when she is tired. She describes difficulty reading books due to problems with her memory. She describes difficulties waking the dog, and only taking up limited housework during 2017.[11]An Occupational Health report dated 15 June 2017 describes pain in her neck and back, she has a stent in situ, and has found that bending and lifting causes headaches. The report says that she is unable to lift or carry “at present and I’m unsure how long this is likely to last”. On permanent adjustments, the report says “unclear at this stage”. The report suggests that the claimant is likely to be a disabled person as defined by the Equalities Act, referring to another medical condition which is also likely to be applicable (47-48).[12]On 24 July 2017, the claimant’s GP wrote a report referencing intermittent headaches provoked by bending forward, that her memory and concentration “had improved … due to her significant brain injury and Grade 5 subarachnoid haemorrhage, I feel that special allowances and adaptions should [be] made for her for at least the next 6-12 months. She had a significant brain injury. I understand that [the claimant] was called for interview and I do not feel, as a General Practitioner, looking at her recent past medical history that she should have been placed under such a situation …” (51-52).[13]On 24 August 2017, an OH report it says that the claimant advised that “…she continues to have issues regarding her cognitive state i.e. she has to think about how to safely walk downstairs. … she continues to be short of breath … she is also having difficulty sleeping at times; has very poor focus and concentration... I would recommend a phased return to work….” (53-54). On her return to work, the claimant was given a car-parking space close to the office because of her reported difficulties walking.[14]An Occupational Heath report dated 11 January 2018 describes the claimant “can get tired and continues to get breathless on exertion.” It describes two fingers bending spontaneously, interfering with typing, but she does other tasks; she occasionally gets tremors in her legs, and her legs and hands are worse when she is tired. Her concentration “is not as good as it was and she finds she can no long settle to read a book she also sometimes tends to forget words… but generally, she is doing very well”. She was due to she her neurologist again in Mid-May 2017 8, because of her ongoing symptoms. The report describes her as likely to feel more tied and may continue to have issues with her concentration, “this is often the case after a brain injury” (41-2). The claimant’s Consultant Neurosurgeon wrote a report on 6 June 2018. She refers to the claimant’s “good recovery given her eventful admission” to hospital “however she does experience symptoms which are very common after a subarachnoid haemorrhage like fatigue and headaches. Patient also reports occasional word finding difficulties.” The report says that the claimant did not undergo neuropsychological testing” to detect if there were mild cognitive deficits, as these reports are usually requested if there are significant impairments. The report stats “Given persistent headaches, fatigue and cognitive deficits after subarachnoid haemorrhage I feel that most patients like [the claimant] benefit from a gradual return to work process…. (57A). Submissions:[15]For the claimant, Mr Jones referenced the test for ‘substantial’ adverse effect – a more than minor or trivial, effect on everyday activities. Several of the effects suffered by the claimant wold meet this test; she had mobility issues, she could not stand for any length of time and had difficulties with mobility and walking; getting around was a challenge. The headaches the claimant suffered were debilitating and serious and are consistent with the medical evidence. The consultant confirms that many of her symptoms are common following such emergency surgery. The claimant suffered a “constellation of difficulties” and is disabled within meaning of the Equality Act[16]For the respondent Mr James argued that a significant amount of the claimant’s witness evidence is not supported by the medical evidence; that there is no evidence of concerns with memory or concentration, that the claimant did not in any event avail herself of medical treatment 0 a “cause of concern”. The Consultant’s report at 57A was, he said, a generic report, referencing “most patients”, not the claimant. The claimant has reported difficulties which are “in large part subjective and self-reported” that the treating medical records show a different picture. He argued that the tribunal can’t be satisfied that there were substantial adverse effects, as this is not made out in treating clinical records.[17]In response, Mr Jones argued that the respondent had focused on a small part of the picture; the headaches for example, are consistent.
The Law
[18]s.6 Equality Act 2010 (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. Conclusion on the evidence and law[19]I concluded that the claimant was a disabled person throughout June - August 2017. The OH reports from June 2017 onwards says the claimant cannot lift or carry, has difficulty walking, has issues with cognitive ability and she suffers from persistent headaches. The GP’s report references a significant brain injury, the Occupational Health report in August 2017 describes difficulties with her concentration and issues with her cognitive state, including having to concentrate to work out how to walk down stairs safely. The claimant’s witness statement describes the difficulties dealing with day to day activities, the adverse effects of a “bad day”, the requirement for medication. In early 2018 the OH report again refers to difficulties with mental impairment.[20]I accepted that the claimant’s witness statement and evidence at tribunal was broadly consistent with the medical evidence. I did not accept the respondent’s contention that treating physician’s records showed no evidence of disability. These records were, I found, written for a specific purpose, to discharge the clamant from that physician's treatment. Also, as the claimant’s Consultant Neurosurgeon points out, many patients have significant ongoing symptoms after successful discharge, and I accepted the claimant’s accont, backed up by the OH, GP and treating physician’s report, that the effect on her during the relevant period was substantial, or more than minor or trivial. I accepted that throughout 2017 the claimant’s impairment caused substantial adverse effects on her cognitive abilities – i.e. difficulties concentrating and memory issues because of the continuing effects of the brain aneurism and surgery – and that this constituted a disability. I also concluded that the physical impairments – the weakness with her hand and legs, including difficulties bending lifting and carrying, difficulties walking, were substantial impairments on her ability to lift, carry and walk, and also constituted a disability. Case Management Orders[21]The claim is to be listed for a 4-day hearing to deal with liability and, if applicable, remedy. The parties are to agree joint days to avoid from January 2019 onwards and to write to the employment tribunal with these dates.[22]The claimant is to send a schedule of her losses to the respondent and to the Employment Tribunal by 5 October 2018.[23]The parties are to exchange lists of their relevant documentation by 5 October 2018. This includes the claimant’s medical records relevant to liability and remedy; if medical records are not received in time the parties agree to liaise over an extension of time to serve medical records.[24]The parties are to request documentation from each other’s list by 19 October 2018. The respondent agrees to prepare a bundle of agreed documents for the Hearing and provide a copy to the claimant by 16 November 2018.[25]The parties are to exchange witness statements three weeks before the Hearing.[26]The parties are to agree to List of Issues and provide the same to the Tribunal on the morning of the Hearing.
Findings of Fact
[27]When it was put to her that she had not said what her difficulties were in respect of the interview she said that it had been difficult to pinpoint what her difficulties were; that the interview records showed that she had a vast experience in the role and that the panel had to prompt her to say things. The Claimant accepted that she was given the opportunity to say things by way of prompting. She stated that she didn’t think that she would have needed the prompting before having been off with the aneurism.[28]The Claimant was informed that day that she was unsuccessful at interview and she was sent a letter dated 22nd June 2017, which is at page 101 of the bundle. She was invited to a consultation meeting on 30th June 2017. An informal meeting took place between the claimant and Jon Frost (Executive Director of Finance and Infrastructure Services) on 28th June 2017 where she expressed concerns.[29]There was then an individual consultation meeting on 30th June, which the Claimant attended with her union representative. Following the meeting the Respondent provided the claimant with formal notice of the termination of her employment on grounds of redundancy. She was then placed in the redeployment pool and she subsequently secured employment in another department albeit that this was at a lower grade and on a part time basis. On 19th July 2017 she presented an appeal against the notice of termination to the board of governors on the basis that the interview process had been unfair. The appeal was held on 9th August 2017 and the Claimant’s appeal was not upheld.[30]There was email correspondence between HR and occupational health which took place between 3rd August and 1st September which demonstrated that the Respondent regarded the occupational health report dated 15th June as inadequate. Julie Lindsay of HR had not received the occupational health report prior to the selection interview but had had it read out to her over the telephone. The email from Kim Morgan to Julie Lindsay and Tracey Owen states ‘…as discussed with Tracey I have not dealt with a case asking for this information and assumed that you had policies and procedures regarding this. It would have been beneficial with the benefit of hindsight and following my conversation with Tracey this morning it would have been both beneficial for me to have asked what exactly was meant by adjustments to the selection process and or an appointment booked to discuss the matter prior to the consultation taking place on 15th June 2017.’
The Law
[31]Under s.20(3) of the Equality Act 2010 an employer is under a duty to make reasonable adjustments where a provision, criterion or practice of the employer puts the employee at a substantial disadvantage in relation to a relevant matter in comparison to persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. Under s.21(1) of the Equality Act 2010 a failure to comply with s.20(3) is a failure to comply with a duty to make reasonable adjustments. Under Schedule 8 Part 3 of the Act the employer is not subject to a duty to make reasonable adjustments if he does not know or could not reasonably be expected to know that the employee has a disability and is likely to be placed at the disadvantage referred to. Therefore knowledge can be actual or constructive.[32]In Gallop v Newport City Council the Court of Appeal [2013] EWCA Civ 1583 held that the relevant knowledge, whether actual or constructive, is knowledge of the facts that will establish whether an employee has a disability as defined in the legislation (i.e. whether the person has a physical or mental impairment and b) whether the impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities). The employer is to form its own judgment and not simply ‘rubber stamp’ occupational health advice. At paragraph 44 it Rimer LJ stated, ‘this case illustrates the need for the employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee is a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. The answers to such questions will then provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied’.[33]Under s.15 of the Equality Act 2010 an employer discriminates against a disabled person if it treats him or her unfavourably because of something arising in consequence of his or her disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. The section does not apply where the employer shows that he did not know or could not reasonably have expected to know that the employee had the disability.[34]Under section 13 of the Equality Act 2010 a person(a) (A) discriminates against another(b) (B) if because of a protected characteristic A treats B less favourably than A treats or would treat others. Submissions[35]On behalf of the Respondent Mr Joseph submitted that there was little point in the Respondent involving occupational health in the April time. The Respondent did everything that they reasonably could to assist the Claimant to get back to work. It made sense for Mr Davey to be the point of contact as he was the godfather of the Claimant’s son. The Respondent considered whether the Claimant ought to be slotted in or pooled. There was nothing unreasonable in terms of the decision to pool Alison Parsons with the Claimant and the 50% rule had been discussed with the unions. The Claimant was not disadvantaged by not being at the consultation meetings as there were very few people who attended the open form meetings. She had a conversation with Tony Evans directly. It was accepted that the requirement to attend an interview was a PCP. The Claimant did not put forward anything to do with her memory at the interview. It was not clear how the Claimant would be disadvantaged. There was no suggestion that she was unable to answer the questions. The prompting was not necessarily because of her disability. The absence of scoring did not put her at a disadvantage as there were only two candidates. The Claimant did not make the Respondent aware of any symptoms. Had the Respondent made enquiries of the medical position they would have come across the letter from the Claimant’s neurosurgeon at p.100 which said that there were no concerns with her memory or concentration but that she struggled to find the odd word. There was no evidence that the Claimant’s extended sickness absence operated either consciously or unconsciously on the decision not to appoint the Claimant. The Claimant had had an opportunity to put forward any symptoms to the Occupational Health Adviser but she failed to do so. The reason for the rejection of the Claimant was because Alison Parsons gave fuller answers as to what was required going forwards in the role. The Claimant was not pooled for James Oldfield’s role because her existing role only matched by 5%.[36]On behalf of the Appellant it was submitted that because she was not at work during the restructuring process she did not have the opportunity to get on top of the issues surrounding the redundancy. The Respondent ought reasonably to have known that she would have been placed at a substantial disadvantage by the interview process owing to her cognitive impairment. The OH Report stated that it was unclear as to what impact the interview would have had on the Claimant. The Respondent ought to have made enquiries about what this meant. The Claimant stated that she often forgot the odd word: the reference to her fiancé saying that this was the case before the injury was made in jest. She was not well but wanted to return to work for financial reasons. The Claimant was required to respond to questions at interview on the spot and that put her at a disadvantage. This would be remedied if she were able to go into the interview fully prepared. It would have cost the Respondent nothing to give her the questions in advance in order to remedy the disadvantage. The Respondent could reasonably have taken into account past experience and performance. The onus was on the Respondent to adjust. The Claimant had not been disabled before and wanted to get back to work. She required prompting and did not perform to the standard expected of her. There was an abdication of responsibility for the appointment by the witnesses which established an inference that the Claimant was not appointed because of her sickness absence. The Claimant was more suitable because she had greater experience, supervisory experience and an unblemished performance record. The Respondent took the decision not to appoint the Claimant on the basis that she had been off sick for a long time and therefore, it required her to compete with someone who was less suitable. This must have been because she was disabled. The Claimant was not considered for the role of MDF Fleet Supervisor when her role mirrored it by 50%. There was inconsistency of treatment.
Conclusions
[37]Applying the law to our findings of fact we make the following conclusions. We found that the Respondent’s lack of proper enquiry as to the Claimant’s medical position was highly relevant to our conclusions. There was a lack of formal contact with the Claimant after she had gone on sickness absence. In our finding if an employer had acted reasonably it would have wished to inform itself of the full medical position of the Claimant and whether she was a disabled person at the time the consultation was going on and at the time when her post was identified as at risk in the new structure (i.e. at the end of March 2017). The Respondent knew at that stage that the Claimant had suffered a very serious brain aneurism and had been off sick for several months. It would have been incumbent on it to inform itself of whether she was a disabled person at that stage in our finding. An employer acting reasonably would have put a number of questions addressing each facet of whether the Claimant was disabled to the Occupational Health advisor at this time. We note that the questions that were put to the advisor in June 2017 were in general terms and were not focused on whether the Claimant’s symptoms met the definition of disability under the Act. The instructions were limited and therefore the report was limited.[38]The Respondent discussed a referral to occupational health in April with the Claimant and the Claimant advised that there was little point as she was under the Consultant. It was not the Claimant’s decision or duty to refer to Occupational Health. The obligation fell on the Respondent and we find, that this obligation crystallised when there were some real changes going on in the workplace which would affect the Claimant’s job.[39]We find that had the Respondent made full and proper enquiries of the Claimant’s position at an earlier stage and certainly by the March/April time it would have been likely to have been appraised of the Claimant’s cognitive symptoms which constituted her impairment as found. The Claimant’s evidence, which we accepted, was that she remained unwell but that she wanted to get back to work because her sick pay was expiring. We did not attach much weight to the letter of the neurosurgeon at p.100 that she had no problems with memory or concentration. We accepted the Claimant’s evidence that it was sometimes difficult for her to pinpoint what her difficulties were. This did not mean that she did not have those difficulties. She was aware of some memory issues as she had mentioned them at the start of her interview. We noted that at paragraph 20 Judge Emery had found that throughout 2017 the Claimant’s impairment caused substantial effects on her cognitive abilities. If the Respondent had made a thorough enquiry at an earlier stage this would have been the information that would have been revealed. We find therefore that the Respondent had constructive knowledge of the Claimant’s disability.[40]Following on from that and given the agreement that the PCP was the requirement for the Claimant to attend a competitive selection process, we find that this did in fact put the Claimant at a substantial disadvantage compared to non-disabled employees. The evidence was that she required prompting. She alluded to memory problems at the start of the interview. She was required to give answers based on on-the-spot recall of information, to process the questions and then provide complete answers. We find that the interview process put the Claimant at a substantial disadvantage compared to persons who are non-disabled and the Respondent was therefore under a duty to make adjustments.[41]However, dealing with the issues at hand, we find that it would have been reasonable for the Respondent to have given the Claimant questions to the interviews beforehand so that she was able to fully prepare herself. We also find that a reasonable adjustment would have been to score both candidates on more objective and non-disability related criteria such as previous supervisory or managerial experience; experience insofar as it related to the duties concerned and conduct record.[42]We find that the Respondent was therefore under a duty to adjust under s.21 of the Equality Act 2010 and that it discriminated against the claimant by failing to do so.[43]Having regard to s.15 of the Equality Act 2010, we find that the decision not to appoint the Claimant without going through a competitive selection process and the decision not to select her for the role of Print Production Supervisor was unfavourable treatment. We found that the unfavourable treatment was because of something that arose in consequence of the Claimant’s disability, namely her memory and concentration issues. The Respondent was under a duty to adjust and failed to do so. Moreover, had the Respondent informed itself of the Claimant’s full medical position and disability in the March/April time it would have slotted her into the new post. Her former role was a 100% match for the job. We did not see any written agreement regarding the 50% rule that was referred to by Mrs Lindsay but even if there was such a rule or policy, owing to the positive obligations on employers in relation to the duty to make reasonable adjustments it would have been necessary for the Respondent to have slotted the Claimant in. We do not consider that there is any justification as the Respondent did not make reasonable enquiries as to the Claimant’s health position in the first place.[44]In terms of the issue surrounding the post of MDF Fleet Supervisor, we considered that this was something of a red herring in terms of what the real issues in this case were. The evidence was that the Respondent had used the restructure to effectively give James Oldfield a promotion. There was a dispute about the extent to which the Claimant’s duties were assimilated into the post. We find that in substance this was a different post, which was not particularly similar to what the Claimant had been doing before, whereas it was a match for James Oldfield. We do not find that the Respondent failed to consider her for this post because of something arising in consequence of her disability, namely her sickness absence. We did not consider that the Claimant raised a prima facie case in this regard.[45]We also dismiss the s.13 direct discrimination claim. We did not consider that James Oldfield was a mirror image comparator owing to the differences in his job description and the circumstances in which his pooling was considered. We also find that the Respondent would have treated a non-disabled hypothetical comparator in the same way as the Respondent treated the Claimant as it would have required him or her to undergo a competitive selection interview as well. The claim for direct discrimination is therefore dismissed.