Employment Judge S PoveyIn person for claimantMS OWEN (instructed by COUNSEL) for respondentDate 18 December 2020
JUDGMENT
[1]Having regard to the applicable statutory time limits, the Tribunal does not have jurisdiction to consider the claims of age discrimination and of disability discrimination based upon PCP 1, 2 and 6. As such, they are struck out.[2]In the alternative, the claims of age discrimination and of disability discrimination based upon PCP 1, 2 and 6 are not made out and are dismissed.[3]The claims of disability discrimination based upon PCP 3, 4 and 5 and the claim of unlawful deductions from wages are not made out and are dismissed. - 1 -
REASONS
[1]This is a claim by Lisette Davies (‘the Claimant’) against her employer Telefonica UK Limited (‘the Respondent’). The Claimant is employed as a national account manager and has been employed by the Respondent since December 2004. She brings claims of age and disability discrimination and unauthorised deductions from wages.
The Hearing
[2]The Claimant and her husband attended the hearing in person, along with the Judge. The Tribunal Members, counsel for the Respondent and the Respondent’s witnesses all took part in the hearing remotely via video link. The Tribunal heard evidence from the Claimant. For the Respondent, we heard from Sam Farrar (the Claimant’s line manager until April 2018), Stuart Heaps (who conducted the Claimant’s grievance against Ms Farrar). Maria Fernandez (the Claimant’s line manager from April 2018), Anthony Fleat (head of Employment and pensions within the Respondent’s in-house legal team) and Gail Brockhouse (who conducted the Claimant’s grievance appeal). We were provided with witness statements for all the witnesses that we heard from and each witness adopted their statements as their evidence in chief.[3]We were also provided with a paginated joint bundle of documents to which we were referred throughout the hearing. Finally, we received written and oral submissions from the Claimant and from Ms Owen for the Respondent.[4]The Tribunal delivered its judgment with reasons at the conclusion of the hearing. On 17 November 2020, the Respondent’s solicitors requested a written copy of those reasons. These are those reasons.
The Issues
[13]The parties agreed at the outset of the hearing that the issues for the Tribunal to determine were as set out in the Case Management Order of Judge Moore of 16 March 2020, as amended by the order of Judge Howden-Evans of 29 October 2020 (which added an additional provision, criteria or practice (‘PCP’) to the reasonable adjustments claim).[14]In summary, the Claimant alleged that the Respondent had: 14.1. Directly discriminated against on the grounds of age (as defined by section 13 of the Equality Act 2020). 14.2. Failed in its duty to make reasonable adjustments to a number of PCPs which, it was claimed, put the Claimant at a substantial - 2 - disadvantage by reason of her disability (contrary to sections 20 & 21 of the Equality Act 2010). 14.3. Made a series of unauthorised deductions from her wages (as defined by section 13 of the Employment Rights Act 1996).[15]In response, the Respondent averred that: 15.1. There had been no discrimination, direct or otherwise, by reason of the Claimant’s age. 15.2. There had been no failure to in the duty to make reasonable adjustments, primarily on the basis that no such duty as pleaded or otherwise, arose. 15.3. There had been no unauthorised deductions from the Claimant’s wages. Rather, there had been an erroneous overpayment of sick pay which the Respondent intended to recoup but to date had not done so. 15.4. In addition, the age discrimination claim and a number of the PCPs relied upon in the disability discrimination claim had been brought out of time and it was not just and equitable to extend time.
Findings of Fact
[16]As explained to the parties, the Tribunal had regard to all the evidence it had seen and heard, as well as the written and oral submissions received. Our findings were unanimous in every regard and each member contributed to our determination.[17]As explained, although the Tribunal made findings on the time issues, we had decided at the outset of the hearing that we would determine each claim being pursued, regardless of our findings on whether they were brought out of time. We did so for two reasons. First, we had heard evidence and submissions on all the claims advanced. Second, and perhaps more importantly, unlawful discrimination on any grounds raise serious issues for the Claimant who alleges to have been subjected to such treatment and for those members of the Respondent’s staff who are alleged to have engaged in such treatment. The parties were entitled to know what conclusions the Tribunal had reached on the evidence presented.[18]As such, these reasons address the age discrimination claim, followed by the disability discrimination claims, then the unlawful deductions claim, before concluding with our findings on the issue of time. - 3 - Direct age discrimination[19]The Tribunal reminded the Claimant, in particular, that we were independent, impartial and had no vested interests in the outcome of these claims. We had seen and heard all the same evidence as she had.[20]The Tribunal did not find, on the evidence presented, that the Respondent was either actively seeking to manage the Claimant out or discriminated against her, as claimed or at all, by reason of her age.[21]Much of the age discrimination claim focussed on a number of emails and telephone calls between the Claimant and Ms Farrar during December 2017 (including the emails that followed that exchange which were disclosed in evidence and the oral evidence of both the Claimant and Ms Farrar). Again, we could find nothing in those documents which came close to indicating discrimination, still less discrimination by reason of age as claimed by the Claimant.[22]Ms Farrar explained what she meant by the words she used in telephone call on 8 December 2017 in follow up email of 15 December 2017. Her explanation remained consistent throughout. But perhaps the best evidence of Ms Farrar’s and the Respondent’s intentions (on the basis that the Claimant did not accept Ms Farrar’s explanation) was what happened next.[23]The Claimant averred that Ms Farrar specifically, and the Respondent generally, were intent on managing her out. But she is still employed by the Respondent, almost three years later. They have not sought to make her redundant (which was feasible after her accounts closed); they have not sought to discipline or dismiss her on grounds of capability (if the accounts were underperforming); they have not sought to discipline or dismiss her on grounds of her sickness absence. Why not? In our judgment, these were potentially much better opportunities to enact such a plan.[24]The answer to the Tribunal was clear. There was no intent or collusion to manage the Claimant out of a job with the Respondent. There was no age discrimination in the course of the telephone call of 8 December 2017 or in any of the subsequent events. There was no collusion or plan to manage the Claimant out.[25]The age discrimination claim was not made out. Disability Discrimination - Disability[26]The Respondent accepted that the Claimant was disabled by reason of depression and anxiety and conceded knowledge of the same from December 2017. However, it denied knowledge before then and denied - 4 - that the Claimant was disabled by reason of post-traumatic stress disorder (‘PTSD’).[27]It is important to distinguish between ill-health and disability. The nature of the claims brought by the Claimant required the existence of a disability. It is not possible for there to be discrimination by reason of a disability if there is no disability. Disability is defined in section 6 of, and Schedule 1 to, the Equality Act 2010. The functional impact of an illness differs from person to person and legal protections are not about the illness but the impact of the illness. They are functional tests (with very specific exceptions). A person is not disabled if they have anxiety or depression or PTSD. Rather, they are disabled if that anxiety/depression/PTSD has a long-term and substantial impact on their normal day to day activities.[28]It is for the Claimant to prove that she is disabled (as defined by section 6 of the Equality Act 2010). That is not the same as showing that there is a diagnosis or that she has symptoms consistent with a particular condition. There was, in the Tribunal’s judgment, insufficient evidence before us to find on balance that the symptoms of PTSD reported by the GP met the definition of disability for the purposes of the claims being pursued.[29]The Respondent conceded knowledge of the Claimant’s disability by reason of anxiety and depression from 27 December 2018, which was the date of second occupational health report. Again, given the nature of the Claimant’s claims, the issue was when the Respondent became or could reasonably have become aware that the Claimant was disabled by reason of anxiety and depression, not when was the Respondent aware that the Claimant had depression and anxiety (for the same reasons as given above).[30]On basis of the documents and information provided to the Respondent, we agreed that the Respondent was not aware and could not have reasonably been aware that the Claimant met the definition of disability by reason of anxiety and depression until the same was confirmed by the occupational health therapist in the report of 27 December 2018. Disability Discrimination – Reasonable Adjustments[31]It follows that no duty to make reasonable adjustments by reason of the Claimant’s disability could, in law, arise before 27 December 2018. It further follows that the Respondent could not be in breach of a duty which had yet to arise. Despite that, we considered all the claimed PCPs relied upon by the Claimant and the grounds upon which she said they evidenced breaches by the Respondent of a duty to make reasonable adjustments. - 5 - PCP 1 – policy or practice of requiring face to face meetings when managing sickness absence[32]The evidence clearly demonstrated that no such policy or practice was applied to the Claimant. In contrast, there was evidence of the Respondent making adjustments to afford the Claimant the opportunity to participate fully in the steps taken to manage her sickness absence.[33]As such, there was no breach of duty and no disability discrimination PCP 2 – policy or practice of refusing to correspond with legal representatives of those on long term sick[34]This PCP relates to a request made by the Claimant’s previous solicitors in their letter of 4 June 2018. In effect, the solicitors asked that all correspondence now came through them until the Claimant was better able to cope. The Respondent refused that request.[35]The Tribunal was not satisfied that that constituted a policy or a practice, as claimed in the alleged PCP. It was a one-off request which was declined.[36]In any event, neither at the time nor subsequently has any evidence been provided that refusing to correspond solely with her solicitors about all aspects of the Claimant’s employment put her at a substantial disadvantage (as is required in order to make out the claim being pursued by the Claimant). This lack of evidence was all the more surprising as in their email of 12 July 2018, the solicitors appeared to suggest that the request was based upon advice from the Claimant’s doctor.[37]In addition, the adjustment requested by the Claimant’s solicitors was simply not reasonable. The Respondent was quite entitled to correspond directly with the Claimant for the purposes of managing her sickness absence, even more so in the absence of any medical evidence to support the need for such an adjustment.[38]As such, no duty arose and there was no disability of discrimination. PCP 3 – policy or practice of failing to monitor sick pay resulting in an overpayment PCP 4 – policy or practice of failing to provide reasonable information relating to any overpayment and repayment plans PCP 5 – policy or practice of failing to adhere to the grievance procedure resulting in a failure to address the Claimant’s grievance and/or appeal in a timely manner - 6 - PCP 6 – policy or practice of failing to offer any or any reasonable proactive HR support in notifying and supporting claim through Respondent’s Income Protection scheme[39]The Respondent accepted a number of errors and failings, particularly in how the Claimant’s absence was recorded (arising from the implementation of new software causing changes to the consequences of logging sickness absences which caused both the overpayment and the failure to alert the Claimant to the Income Protection scheme) and the cause of the delays in determining her grievance and grievance appeal. Those errors and failings were regrettable. They undoubtedly caused concern and stress for Claimant.[40]But to succeed in the claims that she has chosen to pursue, the Claimant had to show that these errors were a policy or a practice. There was no evidence that the causes of these delays and miscalculations were anything other than human or system error. They were not, in any understanding of the concept, policies or practices.[41]In addition, there was no evidence that these errors and failings were done deliberately by the respective employees of the Respondent (whether in payroll, HR or elsewhere) or that these errors and failings were motivated by any intention to treat the Claimant less favourable by reason of her disability.[42]As such, in respect of PCPs 3, 4, 5 and 6, no duty arose on the Respondent to make reasonable adjustments because there were no PCPs in operation and there was no disability discrimination. Unlawful deductions from wages[43]There have been no deductions from the Claimant’s pay. At its highest, the Respondent has notified the Claimant that they have overpaid her sick pay. A claim of unlawful deductions requires there to have been deductions, upon which a decision is made as to whether they are lawful or not. It follows that the claim of unlawful deductions must fail.[44]However, even if deductions had been made (or on the basis that they may be made in the future), the Tribunal observes that by reason of section 14 of the Employment Rights Act 1996, the right not to suffer unauthorised deductions (as per section 13 of the Employment Rights Act 1996) does not apply to a deduction from wages where the purpose is the reimbursement of an overpayment of wages. Time Limits[45]The Tribunal had to consider whether the claims being pursued were presented in time. Those claims were detailed and agreed upon, both at the Preliminary Hearing in March 2020, the Preliminary Hearing in - 7 - October 2020 and confirmed at the outset of this hearing. Judge Moore recorded that the period of ACAS early conciliation lasted from 3 June 2019 to 3 July 2019. The Claimant presented her ET 1 to the Tribunal on 31 July 2-019 (at Paragraph 9 of Judge Moore’s order of 16 March 2020).[46]The age discrimination claim was focussed on communications in December 2017. The disability discrimination claims were based upon a number of PCPs, again which were identified and agreed in the course of managing this claim. Where any of the claims brought out of time[47]The age discrimination claim was brought out of time. The issue of delay in formal disclosure of emails was irrelevant (per the Claimant’s submissions). The Claimant’s own evidence was that she suspected age discrimination at the time, she had discussed it with her solicitors prior to them ceasing to act (in August 2018) and had had sight of one of the relevant emails before March 2018.[48]As for the PCPs, it was not in dispute that PCP 3 was brought in time.[49]Only one of the claimed PCPs related to the grievance procedure (PCP 5) and the claim was based upon a failure by the Respondent to act (whether in timely manner or in adherence of its policy). Time began to run at the point of any alleged failure to act (per section123(3) & (4) of the Equality Act 2010). It was arguable that this was conduct extending over a period, which ended with the grievance appeal decision in June 2019. As such, the Tribunal found that the claim under PCP 5 was also in time.[50]In summary, the Tribunal found that the disability discrimination claims brought in reliance on PCP 3 and PCP 5 were brought in time. All of the other PCP claims (i.e. the claims under PCP 1, 2, 4 and 6) were brought out of time.[51]It was not in dispute that the unlawful deductions claim was brought in time. Was it just & equitable to extend time for those claims presented out of time?[52]In respect of the claim brought in reliance on PCP 4, it was arguable that the Claimant was not informed or made aware of the Respondent’s decision to recover the overpayment until its letter to her of 21 March 2019. As such, the Tribunal was prepared to find that it just and equitable to extend time, on basis of the Claimant’s date of knowledge in respect of the claim brought in reliance of PCP 4.[53]However, in respect of the disability discrimination claims reliant upon PCPs 1,2 and 6 and the direct age discrimination claim, the Tribunal were of the view that it was not just and equitable to extend time. - 8 -[54]The Claimant argument that she had been awaiting the outcome of her grievance appeal before starting her Tribunal claims cannot, in our judgment, assist her (both in law and in fact, as she initiated her claim by way of ACAS early conciliation before the grievance appeal process was completed). She was, on her case, aware of the alleged age discrimination claim and disability discrimination claims (in part, by reason of her previous solicitors), even if the full details were yet to be formulated or evidenced.[55]The Tribunal also considered whether the Claimant’s health was a plausible reason for the delay in bringing these claims. The difficulties we had with the Claimant’s reliance on her health were as follows:54.1 There was no medical evidence to support that contention and it was incumbent on the Claimant to evidence the functional impact of her mental health.54.2 No explanation was provided for the lack of medical evidence and such evidence was reasonably available to the Claimant (via her GP and/or counsellors, who could have been asked for a letter detailing the functional impact of the Claimant’s mental health).54.3 Looking at what else the Claimant was doing at this time, the evidence did not support a finding that she was someone who was unable, by reason of her health, to engage in, at the very least, starting the ACAS and ET 1 processes.[56]In the circumstances, the Claimant failed to provide any evidence that it would be just and equitable to extend time As we can only base our decisions on the evidence before us, the Tribunal was compelled to conclude that we had no jurisdiction to consider the age discrimination claim or the disability discrimination claims regarding PCP 1, 2 and 6.[57]However, and as explained above, we wanted the Claimant to understand that her claims failed not because of a technical time point – they failed in substance. And we wanted the Respondent’s witnesses to understand that they had been exonerated of any unlawful discrimination. Order posted to the parties on 21 December 2020