Ms Halima Aziz v The Crown Prosecution Service: 1800269/2016 Ms Halima Aziz v The Crown Prosecution Service: 1800269/2016
EMPLOYMENT TRIBUNALS
Case No 1800269/2016
Between
Ms Halima AzizClaimantThe Crown Prosecution ServiceRespondent
Before
Employment Judge A M Buchanan
Members
Mr P Curtis and Ms B KirbyIn person for claimantMr A Sugarman (instructed by Counsel) for respondentDate 30 May 2017
JUDGMENT
It is the unanimous Judgment of the Tribunal that:[1]The claim of direct race discrimination advanced pursuant to section 13 of the Equality Act 2010 (“the 2010 Act”) fails and is dismissed.[2]The claim of indirect race discrimination advanced pursuant to section 19 of the 2010 Act is dismissed on withdrawal by the claimant.[3]The claim of disability discrimination by failure to make reasonable adjustments advanced pursuant to sections 20 and 21 and Schedule 8 of the 2010 Act fails and is RESERVED JUDGMENT Case Number 1800269/2016[4]The claim of direct disability discrimination advanced pursuant to section 13 of the 2010 Act is dismissed on withdrawal by the claimant.[5]The claim of indirect disability discrimination advanced pursuant to section 19 of the 2010 Act fails and is dismissed.[6]The claim of discrimination arising from disability advanced pursuant to section 15 of 2010 Act fails and is dismissed.[7]The claim of harassment advanced pursuant to section 26 of the 2010 Act fails and is[8]The claim of victimisation advanced pursuant to section 27 of the 2010 Act fails and is dismissed.[9]The claim of unfair dismissal advanced pursuant to sections 94/98 of the Employment Rights Act 1996 (“the 1996 Act”) is fails and is dismissed.[10]The claim for breach of contract in respect of unpaid notice pay advanced pursuant to Regulation 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”) fails and is dismissed.[11]The claim for unpaid holiday pay is dismissed on withdrawal by the claimant.
REASONS
1.1 By a claim form filed on 18 February 2016 the claimant advanced claims against the respondent of unfair dismissal, race discrimination, disability discrimination, unpaid notice pay, unpaid holiday pay, unpaid wages and other payments. The claimant relied on an Early Conciliation Certificate on which Day A was shown as 11 December 2015 and Day B as 8 January 2016. In respect of her claim for unfair dismissal, the claimant indicated that she wished to be re-instated. A claim for compensation in excess of £1.4 million was intimated.1.2 By a response filed on 24 March 2016 the respondent denied all liability to the claimant. Further particulars of the discrimination claims were requested.1.3 The matter came before Regional Employment Judge Reed on 15 April 2016 for a Telephone Private Preliminary Hearing (“TPPH”). Case management orders were made. It was noted that the respondent conceded that the claimant was a disabled person for the purposes of the 2010 Act. The claimant was ordered to provide further information in respect of her claims other than unfair dismissal.1.4 Further information of her claims was provided by the claimant on 11/12 July 2016 (after extensions of time had been allowed). The breach of contract claim was identified as mainly relating to the alleged failure by the respondent to pay the claimant notice pay. The discrimination claims were clarified as direct and indirect race discrimination, claims of direct and indirect disability discrimination and a claim of failure RESERVED JUDGMENT Case Number 1800269/2016 to make reasonable adjustments. A claim of victimisation pursuant to section 27 of the 2010 Act was confirmed relating to the act of dismissal and relying on previous grievances and proceedings as protected acts. A claim of harassment was also confirmed but not the protected characteristic relied on. By way of background the claimant intimated that she would rely on matters arising since 1993 being alleged failures to promote, unfair monitoring of her work and acts of discrimination in 2001 and later. It was noted that the claim for “other payments” notified in the claim form related to heads of damage in the claims for discrimination.1.5 The respondent replied to that Further Information in a document dated August 2016. It was asserted that the complaint that the respondent had not awaited the receipt of the December 2014 Judgment before issuing notices of expectation for attendance on 4 August 2014 and 7 November 2014 had been litigated in proceedings in 2015 (referred to at paragraphs 7.8 and 7.9 below) and rejected. In any event the third capability meeting had not been commenced until May 2015. The way the respondent had dealt with the obtaining of OH advice in September 2015 was submitted to be reasonable. It was submitted all reasonable adjustments had been put in place to enable the claimant to return to work. It was submitted that a written assurance such as sought by the claimant that she would not be dismissed was not a reasonable adjustment. It was submitted that no holiday pay was outstanding as the claimant had been paid 31.5 days pay at the time of her dismissal and that she had no entitlement to notice pay relying on the provisions of section 87(4) of the 1996 Act. It was denied that the respondent had committed any breach of contract in dismissing the claimant or in the manner in which her appeal against dismissal had been handled. All forms of discrimination were denied. It was noted that the claimant had failed to identify any provision criterion or practice to support any claim for indirect discrimination or failure to make reasonable adjustments.1.6 A further TPPH came before Regional Employment Judge Reed on 15 August 2016. It was confirmed that the concession made by the respondent as to the disabled status of the claimant related to the impairments of depression, post traumatic stress disorder and anxiety disorder. The claimant confirmed that her race discrimination claim related only to a claim of direct discrimination and that the claim related to the act of dismissal only. For the sake of completeness we record in this Judgment that the claim of indirect race discrimination is dismissed on withdrawal by the claimant. It was noted that the claimant relied on the fact that she is of Asian origin and that her family come from Pakistan. A hypothetical comparator was relied on but the respondent was to check in relation to an actual comparator referred to by the claimant in imprecise terms. The disability claims were confirmed as claims of direct and indirect discrimination and a failure to make reasonable adjustments. The PCP relied on was the application by the respondent of its standard terms and conditions and the failure to give an assurance that the claimant would not be dismissed save in circumstances in which any other employee would be dismissed. In respect of adjustments, the claimant confirmed she sought that same assurance and support to return to work lasting longer than 3 months. In relation to the claim of victimisation, the claimant was required to set out the protected acts relied on and it was confirmed the claim related only to dismissal. Further details of the harassment claim were also ordered to be provided. The claimant confirmed she sought unpaid holiday pay throughout her absence from 2001 – 2014 at around £60000. It was noted the claimant had still not received from the respondent the civil service compensation scheme payment to which she remained entitled. RESERVED JUDGMENT Case Number 1800269/20161.7 On 19 September 2016 the claimant filed additional information as ordered on 15 August 2016. The claimant identified the protected acts in respect of the victimisation claim as:1.7.1 Employment Tribunal (“ET”) proceedings instituted on 24 December 2001.1.7.2 A grievance dated 31 October 2006 against Ken McDonald, Angela O’Conner and Richard Foster.1.7.3 A grievance dated 22 July 2007 against Grace Ononiwu and Ade Randle.1.7.4 A grievance dated 23 July 2007 against unnamed CPS staff.1.7.5 A grievance dated 1 August 2007 against Ken McDonald and Peter Lewis.1.7.6 A letter dated 23 October 2007 asking for action against discriminators and third parties involved in the suspension of the claimant.1.7.7 A grievance dated 31 October 2008 against Ken McDonald, Ros McCool, Peter Lewis, Seamus Taylor, Mike Kennedy and others in respect of a decision not to take action against those who had discriminated against the claimant.1.7.8 ET proceedings instituted on 25 November 2014 (1801960/2014) relating to the decision for the claimant to re-apply for her post as Crown Advocate without reasonable adjustment.1.7.9 ET proceedings instituted on 5 March 2015 (1800540/2015) in respect of discrimination and victimisation in respect of notices served on the claimant to return to work.1.8 On 19 September 2016 the claimant also served additional information in respect of her claim of harassment. The acts relied on were the act of dismissal, failure to promote in 1993 and being taken off the Crown Court Advocacy List of candidates in 1999. The protected characteristic relied on was not specified.1.9 On 12 September 2016 the respondent filed a response to the claimant’s further information. The reference to a comparator by a witness Chris Hartley in earlier proceedings was denied. It was noted that compensation to which the claimant was entitled under the civil service compensation scheme had increased to £108363.17 from £80833.00p but had not been paid as the claimant had failed to return the relevant papers to the respondent. The respondent clarified its position in relation to the claims being out of time – contract claims before 12 September 2010 were expressed to be time barred.1.10 A further TPPH adjourned from 19 September 2016 came before Regional Employment Judge Reed on 22 September 2016. It was confirmed that the only act of harassment relied on was the act of dismissal and the other matters alleged in respect of harassment were by way of background only. Orders were made for the final hearing which now comes before this Tribunal.1.11 During the hearing regular breaks for the claimant were allowed throughout to take account of her disability. In addition the claimant was allowed whatever time she reasonably requested in order to prepare her papers and her cross examination and her submissions to the Tribunal. The claimant was allowed to stand up and move about whenever she wished to do so in order to alleviate her physical symptoms. There was a considerable number of preliminary matters for the Tribunal to deal with at the outset of the hearing and they are set out in a separate section of this Judgment below. RESERVED JUDGMENT Case Number 1800269/20161.12 The hearing concluded late in the afternoon of 20 February 2017 and the Tribunal had no time in which to deliberate. The matter was adjourned to Chambers on 15 March 2017 when the Tribunal reached its decision. Accordingly this judgment is issued with full written reasons in order to comply with the provisions of Rule 62(2) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Witnesses[2]In the course of the hearing we heard from the following witnesses:- Respondent2.1 Sally Madeleine Sharp – who was at all material times the manager charged with the management of the claimant’s absence from work.2.2 Andrew Penhale – the dismissing officer.2.3 Jaswant Narwal – the appeal officer. Claimant2.4 The claimant. Documents[3]We had before us a bundle of documents extending to two lever arch files and some 878 pages. We have made reference in the course of our deliberations to those documents to which we were referred in witness statements or during the course of the hearing. Any reference in this Judgment to a page number is a reference to the relevant page within the agreed bundle.
The Issues
[4]At the start of the hearing the legal issues to be determined by the Tribunal were agreed as follows:- Direct race discrimination: sections 9 13 and 39 of the 2010 Act4.1 In dismissing the claimant did the respondent treat her less favourably than a hypothetical comparator because of her race, colour or ethnic origins contrary to sections 13 and 39 of the 2010 Act? Failure to make reasonable adjustments: sections 6 20 21 and Schedule 8 of the 2010 Act4.2 Did the respondent apply a provision, criterion or practice (“PCP”) of:- 4.2.1 Insisting upon the application of its standard terms of conditions and policies and refusing to give the claimant any assurance that she would not be dismissed except in circumstances in which any other employee would be dismissed?[5]There were a number of matters raised by the parties as preliminary issues before the final hearing could get under way. These were considered by the Tribunal and the decisions of the Tribunal announced orally.5.1 The first application related to the admissibility of certain evidence which the claimant wished to introduce. The Tribunal decided that those matters were better dealt with by another Employment Judge and Employment Judge Burton heard those applications and issued an Order on 13 February 2017. That Order was to the effect that words from paragraph 17 of the claimant’s witness statement should not be admitted into evidence and that the statement of Maria Bamieh adduced by the claimant should not be admitted as being wholly irrelevant to the issues to be determined by the Tribunal on liability. Those matters were dealt with on the first morning of the trial.5.2 The Tribunal assembled on the first afternoon and the claimant made an application to adjourn the trial on the basis of her stated intention to appeal against the orders of Employment Judge Burton. The Tribunal listened to the application and then adjourned to read the witness statements and the relevant pages from the agreed bundle and indicated that it would rule on the adjournment application on the morning of the second day of the trial.5.3 The Tribunal refused the application to adjourn the trial. We noted the long history of this matter. We noted that the claimant had not in fact lodged any appeal with the Employment Appeal Tribunal against the Order of Employment Judge Burton. We noted the claims now before us had been lodged with the Tribunal some 14 months ago and they related to the claimant’s dismissal in November 2015 – almost 18 months ago. We concluded that these matters needed to be dealt with as quickly as possible. An adjournment would necessitate a further long delay which neither party sought. We balanced the prejudice to the parties in allowing or not allowing the claimant’s application. We concluded that the balance of prejudice required that this matter continue to final hearing and the application to adjourn was refused.5.4 A further preliminary matter arose at the outset of the hearing as to whether or not the Tribunal should admit a report (“the Report”) prepared by Doctor Helen Bright who had been tendered by the claimant as an expert witness. The respondent through Mr Sugarman made strong objection to the admission of the Report. It was said that the claimant had not sought leave to adduce expert evidence and, whilst the Tribunal was not bound by the Civil Procedure Rules (“CPR”) in respect of admissibility, those rules should not be readily disregarded. The respondent was taken by surprise by the late presentation of the evidence which contained a full frontal attack on Doctor Bollmann - the HR doctor used by the respondent in the process which led to the dismissal of the claimant. The respondent questioned whether Doctor Bright could be considered an RESERVED JUDGMENT Case Number 1800269/2016 expert witness at all given that she had been struck off the Medical Register and was not subject to the control of the General Medical Council (“GMC). It was noted that the claimant had failed to follow the guidelines for Tribunals on the admissibility of expert evidence contained in De Keyser Limited –v- Wilson 2001 IRLR 324 and whilst the claimant was a litigant in person that did not give her “carte blanche” to litigate as she wished. It was submitted that the evidence was not relevant to the issues to be determined by the Tribunal. The Report contained no review of the claimant’s medical records and the Report itself was patently not balanced and objective and did not contain any statement acknowledging the duty of the author to the Tribunal. The Report was described as the most extraordinary report ever seen by counsel and one which contained outrageous attacks on Doctor Bollmann to which she was not able to respond. In response, the claimant asserted that Doctor Bright could be classed as an expert for, even though she had been struck off, she still gave expert evidence to GMC Fitness to Practice Panels and they clearly took account of her views. The claimant asserted that she had made the respondent aware that she wished to obtain her own medical expert. Her disability meant that she was late in dealing with matters and that explained why she had only just obtained the Report. The claimant referred to the recent decision of the EAT in City of York –v- Grosset UK/EAT/0015/16 which was said to be authority for a Tribunal to see medical evidence not before a respondent at the time of dismissal.5.5 We considered the lengthy submissions with care. We accepted that medical evidence could be admitted if it was relevant. We did not accept that the claimant had properly alerted the respondent to her wish to apply to admit medical evidence. We noted the parties had been ordered to exchange witness statements by 12 December 2016 and had in fact only done so a few days before the beginning of the hearing and that was the first the respondent knew of any intention to call medical expert evidence. We considered section 47 of the Medical Act 1983 to which the claimant had referred us and we accepted that Doctor Bright was competent to give evidence to us as an expert notwithstanding that she had been erased from the medical register. We referred to other authorities referred to by the claimant namely Jones –v- Kaney 2011 in respect of immunity from suit enjoyed by expert witnesses and The Governing Body of St Albans School –v- Neary 2010 IRLR 124 and Harris –v- Enterprise Trust 2015 ICR 617 which both confirmed that the CPR did not apply to Tribunal proceedings. We concluded that the questions we need to engage with in the claims of unfair dismissal and failure to make reasonable adjustments would not be assisted at all by the evidence of Doctor Bright. The questions arising in the new claim under section 15 of the 2010 Act (paragraph5.6 below) might have some small relevance to the medical evidence but that was all. We accepted that Doctor Bright could give evidence as an expert notwithstanding her status. We noted the guidance in de Keyser and concluded that it had not been followed in any particular by the claimant. The case had been closely case managed and no mention of expert evidence had ever been made. We noted our duty to make adjustment to our proceedings in recognition of the claimant’s accepted disability but we considered that was not an open ended duty and the overriding objective was still to be applied by us. We did not disagree with Mr Sugarman’s comments in respect of the actual content of the Report which patently lacked objectivity in parts. We noted that the matters addressed in the Report were all matters which the claimant would be able to explore with the witnesses for the respondent in cross examination. Having assessed all relevant matters, we concluded that it was not appropriate to allow the evidence of Doctor Bright to be admitted for, if admitted, it RESERVED JUDGMENT Case Number 1800269/2016 would mean that the respondent was severely prejudiced and the parties would not be on an equal footing. The matters addressed in the Report could in any event be addressed by the claimant in cross examination. Accordingly, the evidence of Doctor Bright was excluded. 5.6 In discussion with the parties on the issues to be determined, the claimant withdrew her claim of direct disability discrimination pursuant to section 13 of the 2010 Act and applied to substitute a claim under section 15 of the 2010 Act. The respondent did not consent to that application nor did it object. We considered the principles in Selkent Bus Company –v- Moore 1996 ICR 836 and decided on balance to allow the application to amend. The claimant was ordered to file a brief pleading in respect of that amended claim and the respondent was ordered to file a brief pleading in response. The issues arising in that claim are therefore included in the issues set out above.5.7 Having announced our decision on that matter, the claimant then sought a witness order against Doctor Bollmann pursuant to Rule 32 of the 2013 Rules. The application was framed in such a way that it was clear the claimant wished to bring Doctor Bollmann to the Tribunal to be cross examined. Thus the application was flawed. The application was made on the third morning of the six day hearing and would doubtless have caused a further delay in the hearing. We considered whether the evidence of Doctor Bollmann would assist the claimant or the Tribunal. Doctor Bollmann had provided Occupational Health (“OH”) reports to the respondent on the claimant and partly in reliance on those reports, the respondent had made a decision to dismiss the claimant. The issue for the Tribunal in the claims advanced was what led the officers of the respondent to dismiss and then in respect of the unfair dismissal claim whether they had acted reasonably in doing as they did. We bore in mind the overriding objective. We concluded that it was not appropriate to issue a witness order against Doctor Bollmann and the application was refused.5.8 The respondent applied for certain paragraphs of the claimant’s witness statement to be excluded on the basis that the paragraphs referred to reports and documentation which were not before the Tribunal in the agreed bundle. The claimant objected. We concluded that the parties - and in this case – the respondent was the author of its own misfortune in not following the Orders of the Tribunal. Witness statements were ordered to be exchanged on 16 December 2016 but were only exchanged on 8 February 2017 some three working days before the hearing was to begin. If the Orders had been followed then the parties could have addressed the question of the missing documents, if necessary, by an application to the Tribunal. That had not happened. We concluded the claimant’s witness statement should remain as drawn (save for the redaction ordered by Employment Judge Burton) and the offending paragraphs could be the subject of cross examination or not as the respondent determined.5.9 When the claimant had completed her evidence at the end of the fifth day of the trial, she sought to produce two emails not in the agreed bundle which had passed between herself and her line manager Sally Sharp. The emails had been in the possession of the claimant throughout but she had not sought to include them until a very late stage in the proceedings. The respondent objected. We considered that it was too late to do so and so ruled. On the morning of the sixth day of the trial, the claimant asked us to reconsider that decision by reference to an email she had written to the RESERVED JUDGMENT Case Number 1800269/2016 Tribunal dated 20 February 2017 timed at 07:12. We considered all that the claimant had written in that email but decided that the overriding objective led us to conclude that the balance of prejudice was against allowing those documents to be admitted given that Sally Sharp was no longer available to be cross examined with any ease.5.10 As the hearing progressed both parties made applications to admit documents into the agreed bundle and in the absence of any objection from either party, we allowed such documents to be admitted and added to the bundle. They were paginated appropriately.5.11 In discussion with the claimant it was eventually confirmed that the claim for unpaid holiday pay was advanced as a breach of contract claim and not as a claim relying in the provisions of the Working Time Regulations 1998. At the end of the evidence the claimant indicated that she did not wish to pursue that claim at all and thus, howsoever advanced, it is dismissed on withdrawal. In addition as the hearing progressed, the claimant indicted at varying times that she did not wish to purse the claim of direct disability discrimination and that claim is therefore dismissed on withdrawal by the claimant. Only the live claims are referred to in the issues section of this Judgment at paragraph 4 above. The history of the litigation between the parties[6]There is a long history of litigation between the parties. We set out the parts of that litigation which are relevant to our deliberations in this matter. By no means do we purport to set out the whole of the history of the litigation between the parties.6.1 The claimant brought proceedings in 2001 (1808550/01) of race discrimination against the respondent. That matter was heard in 2003 and then adjourned and resumed in 2004 and resulted in a reserved decision (pages 87-128) sent to the parties on 11 June 2004 which concluded that the claimant had been subjected to race discrimination by being subjected to various detriments. First by being suspended by the respondent in 2001, the manner of that suspension, being removed from the weekend/bank holiday rota and by being transferred to the Wakefield office without consultation or consent. That matter was heard by Employment Judge Watt and two lay members (“the Watt Tribunal”).6.2 The decision of the Watt Tribunal was subject to various appeals and as a result the remedy hearing in respect of those proceedings came before the Watt Tribunal (by then reduced to two members by reason of the death of one of the non legal members) in June and July 2008. The Judgment on Remedy (pages 129-168) was sent to the parties on 1 September 2008 (“the Remedy Judgment”) and resulted in a very considerable award of compensation to the claimant and three recommendations. The first recommendation (page 132) was that the respondent should within 42 days from the issue of the judgment give to the claimant “a full and complete apology in writing, not merely in form but in substance, genuinely acknowledging that the respondent had discriminated against the claimant and that the suspension and transfer were discriminatory and unlawful acts: furthermore that apology should not contain words of qualification which serve to negate or reduce the scope of the apology offered: it appears to this Tribunal that without such an apology it would be extremely difficult for the claimant to return to her employment with the respondent because her trust and RESERVED JUDGMENT Case Number 1800269/2016 confidence in the respondent has been very seriously diminished by reason of the respondent’s conduct towards the claimant not least by the failure to offer an appropriate apology for a period now extending to more than six and a half years after the initial events: what constitutes a full and complete apology should be apparent from the main body of this judgment”. The second recommendation related to training of those found to have discriminated against the claimant and the third recommendation related to steps to be taken to reintegrate the claimant to the workplace which should provide “significant help and assistance for some considerable period of time after her return”.6.3 The respondent sought a review of the Remedy Judgment and that review was heard by the Watt Tribunal in July and August 2009 and resulted in a Judgment sent to the parties on 2 November 2009 (pages 169-233) which rejected all advanced grounds for a review and the Remedy Judgment was confirmed. There had been an application in the course of that hearing for the Watt Tribunal to recuse itself but the Tribunal concluded it was not appropriate to do so and its conclusions to that effect were contained in the Judgment sent to the parties on 2 November 2009.6.4 Thereafter several other hearings took place at one of which the Watt Tribunal did recuse itself. The claimant successfully appealed against that recusal to the Employment Appeal Tribunal (“EAT”) and so it was that the Watt Tribunal came to consider the matter again in November 2014. By a Judgment (“the 2014 Judgment”) claimant for a review of the Remedy Judgment and in particular a question (within the context of a claim for exemplary damages) as to whether or not the letter of apology sent by the respondent to the claimant on 13 October 2008 (pursuant to the first recommendation of the Tribunal referred to above) met the requirements set out in the first recommendation. It was concluded that the letter did meet those requirements with the exception of one paragraph on the second page of that letter. The 2014 Judgment set out why the letter of apology did not comply. This related to the reference in the letter of apology to the Lewis Report and it was determined that the circumstances were such that the breach of the first recommendation had every appearance of being intentional. The Watt Tribunal determined in 2014 that the Remedy Judgment did not require the respondent to address the Lewis Report and its inclusion was unnecessary and served no purpose. The Tribunal considered whether the reference to the Lewis Report was sufficient to enable an award of exemplary damages to be made and it decided that it was not. The 2014 Judgment came to the attention of the respondent in early January 2015: it did not as such require a further letter of apology to be written. In fact the respondent chose to issue a further letter of apology and we make reference to this further below. 6.4 Separate to the above proceedings the claimant began two other claims in the ET at Leeds numbered 1801960/2014 and 1800540/2015. These claims were combined and came before Employment Judge Shepherd and two non-legal members (“the Shepherd Tribunal”) and after a hearing in October and January 2016 resulted in a judgment being sent to the parties on 23 March 2016. The claimant succeeded in a claim of failure to make reasonable adjustments within claim number 1801960/2014 but, other than that, all claims of direct disability and race discrimination and direct discrimination on the basis of the claimant’s religion or belief and indirect disability discrimination and victimisation were dismissed.
Findings of fact
[7]Having considered the evidence both oral and documentary and in particular the way in which evidence was given to us and the cross-examination of the witnesses, we make the following findings of fact on the balance of probabilities:- RESERVED JUDGMENT Case Number 1800269/20167.1 The claimant was born on 2 November 1958. The claimant is a solicitor and began work for the respondent on 1 February 1991. The claimant is of Asian origin – her family originates from Pakistan. The claimant was suspended from work by the respondent on 10 October 2001 after an incident which occurred at Bradford Magistrates Court on 25 September 2001 and which resulted in a complaint being made against the claimant. The suspension of the claimant was lifted shortly after it was imposed but by then the claimant had become unwell and was signed off as unfit for work. Very sadly the claimant never returned to work after that day and she was ultimately dismissed by the respondent on 19 November 2015 after an absence of more than 14 years.7.2 The history of the matter leading to the claimant’s suspension and a more detailed history of the ensuing litigation appears in the judgment of the Shepherd Tribunal (pages 15-46). We adopt the findings of fact set out at paragraphs 6.3-6.20 of the Judgment of the Shepherd Tribunal which deal with events of relevance up to September 2013 when Sally Sharp was asked to assume line management responsibility for the claimant.7.3 When Sally Sharp took over the line management of the claimant she was only broadly aware of the history of the litigation between the claimant and the respondent. Sally Sharp made a conscious decision not to investigate the specific details of the claims or the history of the litigation in order to remain objective and independent in her line management role.7.4 A telephone call took place between Sally Sharp and the claimant on 14 October 2013 when Sally Sharp explained that she was the claimant’s new line manager. The claimant said that she was suffering from depression still. The claimant stated the Tribunal had ordered that she should not return to work until she had received an apology about her treatment – this was not strictly correct.7.5 On 13 November 2013 Sally Sharp had a telephone conversation with the claimant in which the claimant made plain that it was not her health which was a bar to her return but rather the then ongoing litigation. Furthermore the claimant stated she would not return to work until she had received an unqualified apology. The claimant confirmed that she was still depressed but that she could work with depression. If she received the apology she could return to work on a phased return. The note made by Sally Sharp concludes:- “It seems to me that this is not a case of someone who is sick and needing support towards a return to work. My phone calls feel like a waste of time as it is the court case and not her health that is preventing her return. Should we be paying someone in this situation?”.7.6 At this time Sally Sharp was managing the claimant under the Managing Attendance Policy of the respondent.7.7 On 18 February 2014 Dr Bollmann, consultant occupational health physician provided a report to the respondent following an examination of the claimant. In this report Dr Bollmann stated:- RESERVED JUDGMENT Case Number 1800269/2016 “Ms Aziz is unfit to work in any capacity currently and there are no workplace adjustments that would facilitate an immediate return to work. Although there is no evidence today that her cognition or memory is affected such that she is unfit to undertake the work required of her, the ongoing legal dispute with her employer is fuelling her mistrust of her employer and affecting her motivation/ability to return to work. I expect that she will remain signed off whilst the situation remains unchanged and whilst she continues to feel unsupported by her employer. Outlook Prognosis for return to work will not depend on any significant improvement in her health, but on the work factors fuelling her absence. She feels unable to return while she does not trust her employer. This has remained unchanged for the past 12 years. My opinion is that even with the conclusion of the legal aspects of the situation return to work and her workplace remains very unlikely”. We accept the evidence of the claimant that this report was prepared after a telephone consultation lasting only a few minutes and that the claimant complained about the way that consultation was conducted.7.8 In February 2014 the claimant’s pay was reduced from full pay to half pay. The claimant had effectively been paid full pay by the respondent up to 19 February 2014 from the date of her original suspension in 2001 either through the award of compensation by the Watt Tribunal or direct payment of salary by the respondent.7.9 On 28 May 2014 the claimant met with Sally Sharp. Sally Sharp informed the claimant that the respondent was clear that the claimant’s illness amounted to a disability. Accordingly the correct policy to apply to the claimant was the Managing Disability Related Absences Policy (“the Policy”) which had come into force in October 2013. There was discussion about the appropriate “consideration point” and it was indicated that 10 days was thought to be an appropriate consideration point in the claimant’s case.7.10 On 18 July 2014 the claimant attended a disability review meeting with Sally Sharp. The meeting was mintued (pages 307A-D). It was stated to be the first review meeting under the Policy and the claimant was asked what was preventing her from coming back to work. The claimant said that she had gone over this issue and she would not come back to work until after her hearing and there was nothing else she could say. Sally Sharp asked the claimant what court proceedings were outstanding and the claimant stated that there were three matters which were due to be looked at by the Watt Tribunal in October 2014 with regard to legal costs, outstanding tax owed and compensation due to incorrect salary paid, exemplary damages and an unqualified apology. The claimant stated that she would not be able to return to work before the hearing had taken place as to do so may jeopardise her position at the forthcoming hearing.7.11 On 4 August 2014 Sally Sharp wrote to the claimant in respect of the outcome of the disability review meeting. The letter included the following:- “When I asked what was preventing you from coming back to work you stated you would not come back until your court proceedings against CPS were concluded primarily because you consider that a return to work might jeopardise your case. You provided me with an update of the symptoms of your depression which you stated were RESERVED JUDGMENT Case Number 1800269/2016 reduced levels of motivation and mental agility. In addition you indicated that you suffered from joint pains. You made me aware that you were taking medication to assist with your depression. We discussed the following reasonable adjustments and ease back plan: Gentle phased return. Allocation of mentor. Regular breaks to enable you to walk about, stretch your legs. Ongoing daily supervision, support and guidance from line manager and/or mentor to assist with the organisation of your work including daily goals. Extra time to complete tasks. A detailed induction programme. Programme to include staged training in digital, legal updates, CPS policies, full file reviews and advocacy starting with G plea courts and leading to trials in magistrates’ courts. Training to include shadowing of all areas of working in advocacy, 1-1 training, elearning, classroom training and self learning through reading. Ongoing reviews and adjustments of programme with line manager I have taken time to consider your representations at our meeting along with the needs of the CPS to effectively deliver its business. Unfortunately, with your continued absence, which is impacting significantly on the business, I have determined that your continued absence at the current level cannot be sustained. I have therefore decided to provide you with a written notice of expectation of attendance. The standard of attendance which we require is for you to commence a gradual return to work starting on 29 September 2014. In order to assist you to achieve the standard of attendance required we will provide you with the help, support, reasonable adjustments and training as discussed at our meeting referred to above. We will also make a further referral to OH Assist. If you have any further ideas for how we could assist you then please let me know. If your absence continues at a level that cannot be sustained, there will be a further review (a second review) within a period of three months no later than 3 November 2014”.7.12 On 19 August 2014 the claimant’s entitlement to half pay was exhausted and she then went on to no pay and that remained the position until the time of the claimant’s dismissal some 15 months later.7.13 The claimant appealed against the notice of expectation for attendance at work and that meeting took place on 1 October 2014 before the appeal officer Chris Hartley – senior district crown prosecutor.7.14 The outcome of the appeal was sent to the claimant by a letter of 6 October 2014 (pages 324-325) which followed a meeting lasting some 35 minutes on 1 October 2014 and which was minuted (pages 326-329). At the meeting the claimant stated that it would amount to a reasonable adjustment for her disability to delay her return to work to enable the long standing dispute over the provision of an unqualified apology to be determined and so not jeopardise the outcome of that dispute. The appeal was not successful and the letter confirming the outcome of the appeal states:- RESERVED JUDGMENT Case Number 1800269/2016 “....I find that delaying your return to work for the reasons you have given would not qualify as a reasonable adjustment for your disability. During the meeting you indicated that were it not for the court case you were able to return and would in any event be prepared to undertake training providing this did not impact your court case by being classed as being back at work. In the circumstances I find that it was reasonable to expect you to return and therefore uphold the issuing of a written notice of attendance”.7.15 An occupational health report (pages 495-496) was provided by Nurse Jacqueline McEvoy, OH Adviser, following an assessment of the claimant on 21 October 2014. This report concurred with the remarks made in the previous report in February 2014 and indicated:- “Ms Aziz’s perception is that unless and until the case is concluded completely in a way that is reassuring for her she cannot regain the trust required for her to feel able to return to work. From my discussion with her I do not see her being able to return to her current work environment in the near future, due to the complexity of this case and a lack of trust and confidence in her employer to provide unbiased support on her return”.7.16 On 24 October 2014 Sally Sharp provided the claimant with a draft induction plan and asked for the claimant’s comments. This was a detailed plan covering the first 12 weeks of a return to work (pages 329a-329c).7.17 As the claimant did not return to work, a second stage disability related absence review meeting was convened which took place on 3 November 2014. This meeting was again with Sally Sharp who said that it was not possible to keep waiting for the court case to conclude before the claimant returned to work. The claimant said that she would not come back to work before the court case. She indicated that she would not be willing to shadow a colleague at work. That meeting resulted in a letter from Sally Sharp to the claimant (pages 332-334) which included:- “Unfortunately your absence at the current level cannot be sustained. I have therefore decided to provide you with a final written notice of expectation of attendance. The standard of attendance which we require is for you to commence a gradual return to work by 5 January 2015. In order to assist you to achieve the standard of attendance required we will provide you with help, support, reasonable adjustments and training discussed at our meeting and referred to in the draft action plan which you think will assist. We will also make a further OHA referral. If you have any further ideas for how we could assist you then please let me know. If your absence level continues or there is no sustained return to work within the three months period, a final review will be held no later than 9 February 2015 to determine the likelihood of improved and sustained attendance/return to work and your capability to meet the requirements of your job. Please note that in the final stages, all absences will be considered when determining whether you are likely to return to work within a reasonable timescale or provide regular and effective service over a prolonged period. You should also be aware that this could potentially lead to your dismissal”.[8]Submissions - claimant The claimant made oral submissions which are briefly summarised:-8.1 The Tribunal should look at this matter not in isolation but in the context of its 14 year history. The 14 year delay in dealing with the matters which arose in 2001 lies at the door of the respondent. The vast majority of the delay is the respondent’s fault.8.2 The claimant summarised the history of the litigation culminating in the Judgment of the Watt Tribunal in December 2014.8.3 The claimant submitted that the proceedings had taken a great toll on her. She had represented herself for the majority of the time and the sense of injustice which she felt had only increased with the delay which had occurred. The respondent has unlimited resources compared to her own very limited resources. The claimant asserted that the legal costs of the respondent exceed £1 million, compensation to her RESERVED JUDGMENT Case Number 1800269/2016 had exceeded £1 million and management costs should be added on top of that. The claimant posed the question what had it all been in aid of and if that was not victimisation what was it? The claimant submitted that the respondent had clearly evinced that it did not wish her to return to work from the very beginning of the matter in 2001.8.4 Even if the Tribunal accepted the respondent’s submission that she had changed her position during the disciplinary process then the 2014 Judgment of the Watt Tribunal had clearly set out that the respondent had exacerbated the situation.8.5 The claimant asserted that the absence of a proper apology until January 2015 had exacerbated the situation and she was justified in not returning to work until that apology had been given and that was so even though the 2014 Judgment of the Watt Tribunal did not require an amended apology to be given.8.6 In light of the position in respect of the application for the Crown Court Advocacy role and the 2014 Judgment of the Watt Tribunal, the claimant asserted that she was in order to ask for the assurance that she would not be dismissed as she did during the ensuing process.8.7 The claimant submitted that the respondent should have gone not just the extra mile but extra miles in her case given the complexity of it and their degree of responsibility for creating it.8.8 The respondent had obtained psychiatric reports on the claimant in the past and they should have looked back into them rather than relying simply on the reports of Doctor Bollmann who was only an occupational health physician.8.9 In any event Doctor Bollmann had on the first occasion only interviewed the claimant over the telephone and had not listened to the claimant and as a result a complaint had been made to ATOS about Doctor Bollmann. The claimant was not criticising ATOS generally but only Doctor Bollmann. The fact that Doctor Bollmann spent only six minutes over the telephone in respect of the first report was unacceptable.8.10 The claimant complained about the attitude of Doctor Bollmann on 9 September 2016 and submitted that the approach in that meeting was confrontational and the meeting did not last 30 minutes as alleged because for most of the time Doctor Bollmann was typing her notes. It was submitted that in those circumstances the respondent should not have obtained a report from Doctor Bollmann but should have obtained a report from a different independent physician. The respondent had not called her to give evidence and she does not justify her findings in her report.8.11 The claimant submitted that she was not listened to in the meeting on 9 September 2015 and that therefore neither Doctor Bollmann nor the respondent were acting reasonably. The process was far too speedy. The claimant questioned why she had not been referred for ill health retirement. It was asserted that the respondent did not give the claimant an opportunity to have a different report prepared on her because of her race and that it was an act of discrimination.[9]Submissions – respondent 9.1 Mr Sugarman produced a lengthy written skeleton argument extending to some 123 paragraphs and those submissions were supplemented orally. Reference was particularly made to the decisions in BS –v- Dundee City Council [2014] IRLR 131, McAdie –v- Royal Bank of Scotland plc [2007] IRLR 895, First West Yorkshire Limited –v- Haigh [2008] IRLR 182 and Matinpour –v- Rotherham Metropolitan Borough Council UKEAT/0537/12/RN and General Dynamics Information Technology Limited –v- Karranza [2015] IRLR 43[10]The Law Direct Race Discrimination: Section 13 of the 2010 Act10.1 We have reminded ourselves of the provisions of section 9 of the 2010 Act and also of section 13 which reads:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.10.2 We remind ourselves that direct evidence of discrimination is rarely forthcoming and thus there are particular rules in respect of proving unlawful discrimination referred to below. It is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and unrecognised prejudice of which they are unaware. A discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of 'significant influence', see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR572 at page 576. In some cases discrimination is obvious. However, the Tribunal in most cases will have to discover what was in the mind of the alleged discriminator. In Nagarajan, Lord Nicholls said at page 575 that: "Direct discrimination, to be within section 1(1) (a), the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant has received less favourable treatment. This is a crucial question. Was it on the grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question, will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision would have to be deduced, or inferred, from the surrounding circumstances".10.3 The Tribunal has reminded itself of the provisions of section 136 of the 2010 Act and the detailed guidance in Igen -v- Wong & Others 2005 IRLR 258. That case of course was dealing with sex discrimination under the Sex Discrimination Act 1975 but is equally applicable to race discrimination claims under the 2010 Act10.4 In Madarassy v Nomura International Plc, in the Court of Appeal, Lord Justice Mummery said at paragraph 56: "The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material RESERVED JUDGMENT Case Number 1800269/2016 from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination". And later at paragraphs 71 and 72: "Section 63A(2) [Sex Discrimination Act] does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or a situation for which comparisons are made are not truly like the complainant or a situation of the complainant; or that, even if there has been less favourable treatment of the complainant it was not in the grounds of her sex or pregnancy. Such evidence from the respondent could if accepted by the tribunal, be relevant as showing that contrary to the complainant's allegation of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground. As Elias J observed in Liang (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all".10.5 The Tribunal has reminded itself of the guidance in the decision of Underhill J in Amnesty International -v- Ahmed 2009 IRLR 844 who after dealing with cases of inherently racist behaviour went on to give this guidance in relation to cases which are not inherently discriminatory: But that is not the only kind of case. In other cases - of which Nagarajan is an example - the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, i.e. by the "mental processes" (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant. Indirect Discrimination – section 19 of the 2010 Act10.6 We have reminded ourselves of the provisions of section 19 of the 2010 Act: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if-- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.(3) the relevant protected characteristics are ...disability...;10.7 We have reminded ourselves that in considering a claim of indirect discrimination it is necessary to consider the matter in stages. First has the respondent applied the PCP RESERVED JUDGMENT Case Number 1800269/2016 contended for by the claimant to the workforce or a part of it. Secondly, if so, to consider if there is particular disadvantage to those with the relevant protected characteristic under consideration: in this case we consider the protected characteristic of disability. To undertake this exercise, we must identify the pool of people to be considered and in considering the pool we must not overlook the provisions of section 23 of the 2010 Act set out below. Thirdly, if group disadvantage can be established we must consider whether the claimant has shown that she suffers particular disadvantage by reason of that PCP. If all those matters are satisfied then we must consider whether the respondent has shown that the application of the PCP is a proportionate means of achieving a legitimate aim. Reasonable Adjustment Claim: sections 20/21 of the 2010 Act10.8 The Tribunal has reminded itself of the relevant provisions of section 20 and 21 and Schedule 8 of the 2010 Act which read: Section 20: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this Section, Sections 21 and 22 and the applicable schedule apply; and for those purposes a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements, (3) The first requirement is a requirement, where a provision, criterion or practice of A puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where the disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”. Section 21 (1) A failure to comply with the first second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purposes of establishing whether A has contravened this Act by virtue of subsection(2): a failure to comply is , accordingly, not actionable by virtue of another provision of this Act or otherwise. Schedule 8 The Tribunal has had regard to the relevant provisions of Schedule 8 of the 2010 Act and in particular paragraph 20 which reads:[11]Conclusions11.1 There are eight heads of claim for the Tribunal to consider. We have considered how best to approach that task and conclude that it is appropriate for us to address the claims in the following order:11.1.1 The claim of direct race discrimination11.1.2 The claim of failure to make reasonable adjustments11.1.3 The claim of indirect disability discrimination11.1.4 The claim of discrimination arising from disability11.1.5 The claim of harassment related to disability or race11.1.6 The claim of victimisation11.1.7 The claim of unfair dismissal11.1.8 The claim of breach of contract. Direct race discrimination claim: section 13 of the 2010 Act (Issue 4.1)11.2 This claim did not feature to any extent in cross examination by the claimant of the respondent’s witnesses or in the course of submissions save by reference to sections in the claimant’s witness statements which referred to the Equality and Diversity policies of the respondent and the monitoring of them. In particular we note that the claimant did not at any time challenge Andrew Penhale in cross examination as to the reason he dismissed her on 19 November 2015.