Miss A Barrow v Leeds Beckett University: 1807482/2024
EMPLOYMENT TRIBUNALS
Case No 1807482/2024
Between
Miss A BarrowClaimantLeeds Beckett UniversityRespondent
Before
Employment Judge JamesRepresented herself for claimantMr A Willoughby (instructed by counsel) for respondentDate 13 March 2026
JUDGMENT
(1) The claim of indirect disability discrimination (s.19 Equality Act 2010) is not upheld and is dismissed.(2) The claim of failure to make reasonable adjustments (ss.20 and 21 Equality Act 2010) is not upheld and is dismissed.
REASONS
[1]The agreed issues which the Tribunal had to determine are set out in Annex A. It was clarified before the Tribunal started to hear the evidence that the claimant was no longer relying on the physical impairment/disability of deafness. In an email from her then solicitor, to the respondent’s solicitors, sent on 3 June 2025, it was confirmed: We refer to your previous correspondence and we accept that the hearing difficulties referred to is not a disability issue. We thank you for your assistance in this matter.[2]As a consequence, the Judge asked the claimant whether she agreed that there was no longer a need to determine the issues set out at paragraphs 3.4.1 and 4.3.1 of the list of issues. The claimant did not agree with that. Since the claimant is now a litigant in person, Judge James did not press her to withdraw those issues. However, on the basis of the discussion, the Judge told Mr Willoughby that it was a matter for him whether he wanted to question the claimant about them during cross examination, or just make submissions in relation to them. Mr Willoughby chose the latter. The proceedings[3]Acas Early Conciliation took place between 23 June and 4 August 2024. The claim form was issued on 4 September 2024. The claimant makes two allegations of disability discrimination - a failure to make reasonable adjustments; and indirect discrimination.[4]A preliminary hearing for case management purposes took place on 12 February 2025. The claimant was represented at the hearing by a solicitor. The final hearing was listed to take place between 1 and 4 September 2025.[5]A draft list of issues was prepared for that hearing by the respondent’s solicitors. This identified complaints of direct discrimination and section 15 unfavourable treatment. The allegations of direct discrimination were identified as follows:4.1.1 Being instructed to attend a compulsory seminar on University premises on 30 April 2024;4.1.2 Withdrawal of her orange badge parking permit;4.1.3 Being asked questions about her health conditions when referred to Occupational Health for the second time.[6]The allegations of s.15 unfavourable treatment were:7.1.1 inviting the Claimant to an in-person training session on University premises on 30 April 2024; and7.1.2 not providing the Claimant with a permanent parking space on site.[7]The claimant’s solicitor, Mr Botham, confirmed during the Preliminary Hearing that the section 13 and section 15 claims were no longer pursued. They were removed from the draft list of issues. No allegations of harassment were included in the draft list of issues which was attached to the orders sent out following the hearing. The parties were invited to write to the Tribunal if they considered that the list contained any errors or omissions. Neither party wrote to the Tribunal after the hearing, to argue that the annexed list of issues contained any errors or omissions.[8]The final hearing did not proceed as planned in September 2025. Instead, a further preliminary hearing took place on 4 September. The claimant was by that stage representing herself. It was indicated that she had left the employment of the University and that further claims may be brought. However, the claimant did not want those claims to be consolidated with this claim.[9]Employment Judge Jones arranged this final hearing. He confirmed that if a further claim was issued, it was not to be consolidated with these proceedings. Related case management orders were made.[10]Whilst there is little factual dispute between the parties, Judge James notes that when the claimant was asked questions during cross examination, she would frequently evade the question being asked. This is despite guidance being given by Judge James before she commenced her evidence about the importance of meeting questions head on, otherwise it might be argued in due course that her evidence was less reliable. This remained the case, despite that guidance being repeated on at least two more occasions during the claimant’s cross-examination. To the extent that there is any factual disputes between the parties, the evidence of the respondent’s witnesses is preferred to that of the claimant.[11]Judge James also notes that this was a particularly difficult hearing to manage, due to the claimant’s conduct, which was at times disruptive and at others, uncooperative. For example, the claimant complained at the commencement of the hearing that her harassment claim was not part of the list of issues. Judge James sought the cooperation of the claimant, in order to identify what the allegations of harassment were, which she stated were part of the claim; in particular, who did what and when? The claimant kept referring the judge to Annex C of her skeleton argument, saying words to the effect that ‘any reasonable person’ could identify the allegations from Annex C. It took some time to be able to identify the two allegations, which are further discussed in ‘The hearing’ section below.[12]As a further example, when Mr Hey was being asked questions by the Judge, Miss Barrow kept interrupting when the witness was trying to answer the question; and then when the Judge was considering if any further questions needed to be put to Mr Hey, Miss Barrow again interrupted.[13]By way of a further example, when the claimant was cross-examining Ms Johnson, she said to the witness at one point: ‘can I stop you there’, after Ms Johnson started to answer. Judge James asked the claimant to let the witness answer the question. When Ms Johnson again tried to answer the question, she was again interrupted by the claimant and the Judge again had to intervene.[14]The claimant also suggested that she was being prevented from asking relevant questions. Judge James explained that the difficulty was that the claimant kept asking witnesses their opinion as to whether the law had been breached, when that was a question for the Judge. He kept explaining to the claimant, that her questions of the witnesses needed to be related to issues of fact, not issues of law.[15]As a final example, the claimant alleged that she had been prevented during the hearing from discussing the Occupational Health report. Judge James made it clear that was not the case. What the claimant was not allowed to do was put questions regarding the harassment allegations said to arise out of the April 2024 Occupational Health referral, since they were not relevant to the issues in this case. It would potentially have been relevant to the harassment allegations; but Judge James had determined that those were not properly before the Employment Tribunal for determination, at the outset of this hearing, for reasons set out below.[16]Whilst these difficulties during the hearing are noted, for the record, Judge James can reassure the claimant that the following findings of fact and conclusions on the issues, have been determined on an objective and impartial basis.
The hearing
[17]The hearing took place over three days. Evidence and submissions on liability were dealt with on the first two days. It was arranged that on the third day, the Tribunal would give its decision and reasons and, if the claimant was successful, would go on to deal with remedy. In the event, that was not necessary. Summary reasons were given at the hearing (Rule 60(4A)). The claimant has asked for written reasons. The Judge has decided to provide these full written reasons in response to that request (Rule 60(4E)).[18]The Tribunal heard evidence from the claimant; and for the respondent, from Mr Tom Hey, formerly Head of Technologies for Learning; and Victoria Johnson, formerly the Associate Director of Estates and Facilities. There was an agreed hearing bundle of 415 pages; a supplementary bundle of 94 pages; a cast list and chronology (not agreed by the claimant); and a skeleton argument from the claimant, with numerous appendices (85 pages).[19]At the outset of the hearing, there were a number of preliminary issues to deal with. The decisions on those are as follows. Redaction of page 133[20]Employment Judge James was satisfied, having viewed the unredacted document, that the redacted section was covered by litigation privilege and should not therefore be before the Tribunal. What is said in that part of the unredacted version has played no part in the decision-making process. Application to exclude supplementary evidence of Mr Hey and of Ms Johnson[21]On 27 January 2026, Regional Employment Judge (REJ) Davies ordered the respondent to provide copies of any papers, records or minutes associated with the decision to make the change referred to in paragraph 11 of the Grounds of Resistance i.e. that the University no longer offers permanent parking spaces. Such documents were to include any consideration of alternatives to making that change, and copies of any written parking policies from 2020 onwards. The REJ gave permission to both parties to produce supplementary witness statements solely to deal with any newly disclosed documents. Any such witness statements were to be sent to the other party by 24 February 2026.[22]The respondent subsequently clarified that there was no specific policy in relation to car parking; it was dealt with in the General terms and conditions document, relating to car parking. The general terms and conditions was produced and are in the supplementary bundle between pages 69 and 73.[23]A supplemental witness statement of Mr Hey was subsequently provided. Paragraph 2 corrects the date at paragraph 4 of his witness statement. Whilst that is outside the terms of REJ’s EJ Davis’s order, there is no prejudice to the claimant in that date being corrected.[24]Mr Hey also provides clarification in relation to paragraph 8 of his original statement. Those arise out of his suggestion that the University had changed its parking policy. Due to his updated understanding that the University did not have a parking policy, but the general terms and conditions document, it appears to me that the content of the remainder of Mr Hey’s witness statement properly deals with the newly disclosed documents. There is no reason therefore to exclude that evidence. To the contrary, to exclude it would be unfairly prejudicial to the respondent.[25]As for the witness statement of Ms Johnson, again this deals with the new documentation. Some of it, for example what is at paragraph 4 in relation to the nine types of parking permits available, is not mentioned in the terms and conditions document; but it does deal with the central question of who can have a car parking permit and how staff should go about applying for one. In any event, her statement is less than 3 pages long and has been provided to the claimant two weeks before the hearing.[26]To the extent that any part of the witness statements go beyond ‘dealing with’ the newly disclosed documents, the Judge would in any event have found that it would be just to allow the respondents to rely on it, in the circumstances. It provides material evidence in relation to the issues before the Tribunal. It is in the interests of justice to allow that evidence to be called, in circumstances in which the claimant has had adequate time to consider it and prepare questions.[27]As was explained to the claimant on day one, she would have the opportunity to ask Mr Hey and Ms Johnson relevant questions in relation to their witness statements. When the claimant indicated that she did not intend to ask any questions of Mr Hey Ms Johnson, the Judge explained to her that if she did not challenge their evidence, it would be more likely (although not inevitable) that their evidence would be accepted. The harassment claim[28]As for the harassment claim, it is apparent from the electronic file for the case which the Judge had access to, that a draft list of issues was prepared for the 12 February 2025 preliminary hearing, which identified the following allegation as a potential allegation of direct discrimination: Being asked questions about her health conditions when referred to Occupational Health for the second time.[29]The Tribunal concluded that this in effect encompasses the allegations of harassment which, after lengthy discussion at this hearing, it was eventually possible to identify as being that: On 30 May 2024, the claimant was made to describe intimate details of her digestive issues, which are part of the symptoms of Agoraphobia, when interviewed for a stress risk assessment. On or around the same date, re-referring the claimant to OH and seeking details regarding those same symptoms.[30]At the hearing on 12 February 2025, the claimant was represented by a solicitor, Mr Botham. The Judge notes the claimant’s assertion that she was not ‘properly represented’ and that she has complained about her former solicitor’s conduct of her case. Nevertheless, the summary of hearing records at paragraph 45.1: 45.1 Having initially sought to bring claims for direct discrimination (section 13, Equality Act 2010) and discrimination arising from disability (section 15, Equality Act 2010), Mr Bothan [sic] conceded on the claimant’s behalf that the focus of the claims was on the asserted PCP and the substantial disadvantage that this placed the claimant at. In those circumstances the section 13 and 15 claims are no longer pursued. They were removed from the draft list of issues.[31]Paragraph 6 of the Orders section states: List of issues 6. By 12 March 2025, both sides must read the draft list of issues set out in the Annex to this document carefully and write to the Tribunal (copied to the other side) if there are any errors or omissions.[32]Neither party wrote to the Tribunal to object to the List of Issues. Further, at the hearing on 4 September 2025, the claimant did not indicate that she disagreed with the List of issues. The List has been sent to her as part of the hearing file.[33]The most recent judgment in relation to lists of issues is the Court of Appeal’s decision in Moustache v Chelsea and Westminster Hospital NHS Trust 2025 EWCA Civ 185. The Judge has taken into account in particular, paragraphs 38, 39 and 40.[34]Applying those principles to this case, it appeared to Judge James that the factual allegations which the claimant now seeks to rely on in relation to the harassment claim, are the same as those which were formally abandoned on behalf of the claimant, on 12 February 2025. Since then, the case has been prepared on the basis of the issues set out by Employment Judge Wilkinson in the Annex to his orders - claims of indirect discrimination and failure to make reasonable adjustments. Although the allegation of harassment was identifiable from what is set out in paragraph 8.2 and paragraph 14 of the claim form, it is concluded that this factual allegation was formally abandoned on the claimant’s behalf on 12 February 2025. The fact that the factual allegation was identified as a claim of direct discrimination, rather than harassment, does not change the fact that the factual basis for the allegations was abandoned.[35]The claimant argues that this must have been an administrative error. The Tribunal disagrees. Had it been the case that Mr Botham understood the claimant to be pursuing a claim of harassment in relation to the above allegation, rather than a claim of direct discrimination, that would no doubt have been discussed at the hearing, referred to in the case summary and reflected in the list of issues. Alternatively, when Mr Botham received the list of issues, he would have written to the tribunal to clarify the position if he thought it contained omissions.[36]Were the claimant to be allowed to pursue the harassment allegations at this stage, the final hearing would have had to be postponed, to enable the respondent to call relevant witness evidence and produce relevant documentary evidence. This would have been necessary, in relation to a claim which was issued in September 2024, and has already been relisted for a final hearing once before.[37]It would, as an alternative, have been possible to determine the issues currently before the Tribunal, but then to defer the harassment allegations to another hearing. However, the overriding objective requires the Tribunal to take into account a number of factors, including the need to deal with cases in ways which are proportionate to the complexity and importance of the issues; avoiding delay so far is compatible with proper consideration of the issues; and saving expense.[38]This is the second time these matters have been listed as a final hearing and the Judge concluded that it would not be a proportionate use of Employment Tribunal time to allow the harassment allegations, the factual basis for which was formally abandoned on behalf of the claimant over a year ago, to be reinstated and further considered in due course. That would inevitably lead to a duplication of evidence and significant further time and costs being spent by both parties, when the case had already been prepared twice, for a final hearing. Had those issues been properly identified before and been before this hearing, those allegations could have been dealt with within the existing three-day hearing window.[39]Judge James is also mindful of the fact that there are two claims still before this Tribunal, which are related to the matters about which the claimant complains in the harassment allegations, in that they arise out of the car parking issue that occurred in April 2024. The allegations are not the same; but a determination has been made in relation to the related allegations.[40]Since the claimant was professionally represented on 12 February 2025, the claimant has the option of raising this issue with her solicitors, if she considers that the suggestion that the allegation was no longer pursued did not comply with her instructions. In stating that, the Tribunal has not taken a view as to whether there is any merit in such an allegation.[41]This hearing has therefore proceeded in relation to the allegations of indirect discrimination and failure to make reasonable adjustments only. Recusal Application[42]After the preceding decisions had been presented orally on the afternoon of the first day of the hearing, the claimant asked Judge James to recuse himself from hearing the substantive issues in the case. She said that whilst she was not suggesting that there was actual bias, there was apparent bias, because of the adverse decisions that the Judge had made.[43]Judge James refused the application because there was no reasonable basis for arguing that there was apparent bias, just because some preliminary issues had been decided against the claimant. Were that to be the case, it would mean that in any case where preliminary issues arose and were determined at the outset of a final hearing, the losing party could subsequently argue the Judge had to recuse her/himself. That is patently not a reasonable suggestion. Opening Statement[44]The claimant then said that she wish to make an opening statement. Judge Joan said that there was no requirement for her to do that and it was not the usual practice. Whilst of course, the ‘usual’ practices can and should be departed from in appropriate circumstances, it was not appropriate in this case. The issues in the case had been identified in February 2025, and are straightforward. Further, the claimant had sent a skeleton argument and supporting appendices a week before the hearing, a document which is 85 pages in length. Judge James had already had the opportunity to consider the skeleton argument. Allowing the claimant to make an opening statement would not further the overriding objective.
Findings of fact
[45]The claimant started work for the respondent in 1984. She was employed in the role of Learning Technologist in Library and Student Services. The respondent is a large employer, employing over 2,500 staff.[46]The Leeds Beckett University Car Parking Permits: General Terms and Conditions, issued in 2014, state at paragraphs 1.6 and 1.7: 1.6 Staff with a disability or occupational health need should apply online. Applicants holding a Blue Badge in their name will not be charged. A scanned copy of the blue badge should be uploaded at the time of application. Blue Badge permits have no expiry date. 1.7. Applicants for Occupational Health permits are required to pay, and must have been recommended for a permit by the Leeds Beckett Occupational Health team before applying online. Occupational Health permits will be issued for a period of no more than one year at a time. Allocation of a permit in any one year should not be taken as a guarantee of eligibility in future years.[47]Paragraphs 2.5 and 2.16 state: 2.5 Possession of a valid permit does not confer a right to a parking space. … 2.16 Applications for car parking permits should be submitted online wherever possible. If it is not possible to apply online a formal hard copy application form can be obtained from the Car Park Admin Office (email: carparkadmin@leedsbeckett.ac.uk or tel extension: 25552) or your local HR advisor.[48]Since 2013, the claimant has worked mainly from home. Under the previous arrangements with Occupational Health, her OH adviser would telephone her once a year to check if she still needed a car parking space and they would then let car parking know that it was. The claimant would then be written to regarding her ‘application’ for a pass.[49]After the Covid lockdown in 2020, Learning Technologists have been required to attend campus about 4 to 5 times a year.[50]The claimant’s last annual on-campus parking permit expired in 2020. Due to another medical condition, the claimant was housebound for months, due to the Covid outbreak. Her pass expired at the end of March 2020. As a result, the claimant no longer had to pay 1% of her salary for parking. Under ad hoc arrangements which were then followed by the claimant, she was just required to give a weeks notice if she wanted to park.[51]It is noted that in section 3.3 of Annex E of the claimant’s skeleton argument, she asserts that the previous practice of charging disabled staff 1% of salary for parking is contrary to section 20(7) Equality Act 2010. Whilst that assertion is noted, it is not a specific allegation which is before this Tribunal. No conclusions need to be reached in relation to it.[52]The evidence of Ms Johnson is that there are generally nine types of parking permits available for staff or students at the University. It is paragraph 4.8 which is applicable to the claimant which states: Staff - Occupational Health Full-Time. This option is for staff who require a parking space for health reasons but do not have a blue badge and work full time. It allows access to car parking at any time, including use of disabled spaces.[53]No charge has been made since 2020 for such a permit. This evidence was not challenged and is accepted. Ms Johnson also clarified that a physical pass is no longer required, due to automatic number plate recognition. It is not in dispute that the claimant did not apply to renew her pass, from the end of March 2020, on any occasion. It was put to the claimant during the hearing that she did not apply for a pass. The claimant replied: ‘No, as I did not need to’.[54]The arrangements were that a blue badge holder could park in any of the disabled parking bays on the ground floor. The claimant did not have a blue badge – she did not require one more generally. When she had her parking pass, she could park in any non-disabled parking bay, unless they were all full. In that case she could park in one of the disabled parking bays. That remained the position after 2020.[55]On 18 April 2023, the claimant emailed the Car Parking Helpdesk, requesting a parking space for 21 April 2023. Her email states: Prior to Covid I had an orange pass but it expired during lockdown. I have had disability parking since 1984 for an ongoing issue, supported by OH (Ann Coulson is my contact). Can I book a space for the 21st April please (this Friday). I will park in a normal space unless the carpark is full.[56]The reply from the Helpdesk confirmed: Morning Mandy, I’ve booked you in to one of our ad hoc spaces for the day (see below). If however you are looking for a more permanent solution to parking at City Campus, you can apply for an occupational health orange permit here. Dear Mandy, I'm pleased to inform you that a staff car parking space has been reserved as requested. Booking Details: Date(s) Friday 21st April 2023 Location: The Rose Bowl Underground Car Park on Level 2 Leeds Beckett University, City Campus, Leeds LS1 3HB (Sat Nav use LS1 3AY and enter the car park via Portland Crescent) You can download the University's maps and directions using this link https://www.leedsbeckett.ac.uk/our-university/contact-and-find-us/[57]The claimant says that this email has been redacted. The Tribunal disagrees. It appears far more likely that the booking details referred to (‘Dear Mandy’ onwards) have simply been copied and pasted into the email.[58]During April 2024, the claimant was requested to attend a seminar, on campus, on 30 April 2024. This was planned as a workshop-style event. The topic of inclusive decision-making was covered. The claimant was happy to attend the seminar; indeed, she was looking forward to it.[59]The claimant had attended a similar seminar with her team in 2023. She had parked in the Rose Bowl car park for that seminar. When she arrived, the barrier had lifted, presumably because of automatic number plate recognition.[60]The claimant applied for an ad hoc car parking space on 22 April 2024. She received an email from the car park Administration team to say that her request had been declined because the Rose Bowl underground car park was fully booked on 30 April 2024 at 12 noon.[61]The claimant emailed back, saying that the system only allowed booking a week in advance and despite her email being marked for disability, the car park was full and her request had been declined.[62]Ms Farzana Boston, applied on behalf of the team as follows the same day: We have a small amount of spaces we can offer as Ad Hoc for staff and staff can only take bookings from the Monday 8am of the week before the space is required. All requests made before this time will be declined. This policy remains consistent, even during annual leave periods or bank holidays. Please be aware that our parking spaces fill up rapidly due to high demand.[63]Miss Boston also asked the claimant if she had a blue badge. The claimant replied that she did not, but had an LBU ‘orange badge’ organised by Occupational Health before she worked from home, but it expired in 2020. Ms Boston replied: Thanks for this info and yes the OH permits are short term permits and no longer long term as staff are advised to get Blue badge if there mobility is on-going. [sic] On this occasion ONLY, I have booked the below for you but as mentioned we do not have enough spaces to offer to all staff that are wanting free parking as our parking spaces are also open to the students and public so we have to factor that in here also.[64]The claimant replied: When I worked onsite, I had a permanent parking place organised by OH for 36 years without a break. Now I work at home I need a parking space occasionally . However, you have made it clear in your email that this is not to be the case. It is of some concern to be that people without disability have priority over those that do. My management have been copied into this email. [sic][65]Ms Boston replied, again on 22 April 2024: Staff with ongoing mobility needs are encouraged to apply for a Blue Badge if they believe it would facilitate their travel arrangements. It's important to emphasize that individuals are responsible for making their own parking and travel arrangements. Furthermore, it's essential to note that the administration of permits sits with Car Park service and that decisions are outside the remit of OH team or your management.[66]The claimant replied: When it comes to reasonable adjustment, I'll think you'll find that the Car Park Service do not have the authority to make decisions of that magnitude. It clearly sits with Occupational Health. However, I appreciate that taking this forward will involve challenging Senior Management and taking out a case of disability discrimination. Thank you for giving written details of the policy for future reference.[67]The claimant then emailed Tom Hey. In her email she states: When I was on campus it was just a case of Anne Coulson getting me an orange badge each year, re-referral wasn't necessary, it was just rolling. I don't need a blue badge for anything else and as I said, I have had onsite parking for 36 years without a break until Covid. A note from my GP to the University should be on file. I'm sorry but I don't think it's unreasonable for me to have onsite parking for the odd event, when I used to take up a place full time. There is an Orange Disability badge issued by LBU. If this has now gone an investigation needs to take place.[68]Mr Hey replied: The Orange badge still exists and Car Park admin have advised me it’s a temporary badge. I’m not sure of the pre-Covid arrangements/policy, or if those have changed, or if some special consideration was applied in your case. However, I have asked Jack to find out about the Orange badge from OH’s perspective when he makes the OH re-referral. They will know of the scheme and your case so it seems appropriate that they advise us. Additionally Car Park admin have told me they’ve put you on a two week booking list, which means that you can book a space two weeks in advance. This in theory means you can book a week ahead of most people, which will help a bit.[69]Mr Hey decided to make an OH referral although the details of that do not need to be considered further to determine the issues in this case.[70]When the claimant attended for the seminar, she had to wait for someone to come out as her number plate did not appear to be recognised. It is not clear from the factual evidence presented to this hearing why that was the case on 30 April, when it had not been the case before. It was suggested to the claimant by the person who came out to assist her she had to pay for her ticket. But the claimant argued about that and was allowed to park for free.[71]Unfortunately, the claimant commenced a period of sick leave on 5 May 2024. Her employment was terminated on 30 May 2025. The circumstances surrounding the termination of her employment are not relevant to the claims before this tribunal or the issues that needs to be determined.
Relevant law
[72]The Equality Act 2010, s.19(1)-(2) provides that: a person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. A provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s if: 72.1. A applies, or would apply, it to persons with whom B does not share the characteristic; 72.2. 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; 72.3. It puts, or would put, B at that disadvantage; and 72.4. A cannot show it to be a proportionate means of achieving a legitimate aim.[73]In a case involving sex discrimination, namely Dziedziak v Future Electronics Ltd EAT 0271/11 Mr Justice Langstaff said: the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice, secondly, that it disadvantaged women generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual who was claiming. Only then would the employer be required to justify the provision, criterion or practice, and in that sense the provision as to reversal of the burden of proof makes sense; that is, a burden is on the employer to provide both explanation and justification.[74]In relation to PCPs, in a case involving the protected characteristic of disability, Ishola v Transport for London [2020] EWCA Civ 112 it was held that: however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. Burden of proof[75]The Equality Act 2010 s136 provides that if there are facts from which a tribunal could decide, in the absence of any other explanation, that person A has contravened the provision concerned, the Tribunal must hold that the contravention occurred, unless A can show that he or she did not contravene the provision.[76]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. The Tribunal can consider the respondents’ explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.)[77]The Court of Appeal in Madarassy, a case brought under the Sex Discrimination Act 1975, held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. LJ Mummery stated at paragraph 56: Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’[78]Further, it is important to recognise the limits of the burden of proof provisions. As Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR 870 at para 32: They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other. Reasonable adjustments (sections 20 and 21)[79]Section 39(5) of the Equality Act 2010 imposes a duty on an employer to make reasonable adjustments.[80]Section 20 provides that where a provision, criterion or practice (a PCP) applied by or on behalf of an employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable to have to take in order to avoid the disadvantage. The same duty arises where the substantial disadvantage arises from a failure to provide an auxiliary aid or a physical feature of premises.[81]Section 21 of the Equality Act provides that an employer discriminates against a disabled person if it fails to comply with a duty to make reasonable adjustments. This duty necessarily involves the disabled person being more favourably treated in recognition of their special needs.[82]In Environment Agency v Rowan 2008 ICR 218 and General Dynamics Information Technology Ltd v Carranza 2015 IRLR 4, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A tribunal must first identify:(1) the PCP applied by or on behalf of the employer;(2) the identity of non-disabled comparators; and(3) the nature and extent of the substantial disadvantage suffered by the claimant in comparison with those comparators. Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified. The question is whether the PCP ‘bites harder’ on the claimant (Griffiths v Secretary of State for work and Pensions [2017] ICR 150 at #58. In First Group plc v Paulley [2017] UKSC 4, [2017] IRLR 258, Lord Neuberger held there has to be a “real prospect” that the step “would have made a difference”.[83]The test of reasonableness imports an objective standard. The Statutory Code of Practice on Employment 2011 published by the Equalities and Human Rights Commission contains guidance in Chapter 6 on the duty to make reasonable adjustments. Paragraph 6.28 sets out some of the factors which might be considered in determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty to make reasonable adjustments. These include whether taking the step would be effective in preventing the substantial disadvantage, the practicability of the step, the cost to the employer and the extent of the employer’s financial and other resources.[84]As for knowledge, for the S.20 EQuA duty to apply, an employer must have actual or constructive knowledge both of the disability and of the disadvantage which is said to arise from it (EQuA para 20, Schedule 8).
Conclusions
[85]In arriving at the following conclusions on the issues before the Tribunal, the law has been applied to the facts found above. The issues are dealt with in turn.[86]In reaching these conclusions, the burden of proof provisions have been considered. They have not assisted the claimant in this case. Issue 2. Disability Issue 2.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about?[87]The respondent concedes that the claimant has a disability because of agoraphobia. It was not admitted that her deafness amounts to a disability. However, as noted above, the claimant is no longer arguing about that aspect of her case and no determination needs to be made about it. Issue 3. Indirect discrimination (Equality Act 2010 section 19) Issue 3.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: Issue3.1.1 Making all staff attend seminars on university premises; and Issue3.1.2 Not providing permanent parking for staff.[88]The Tribunal concludes that both PCPs are made out. Staff are not necessarily required to attend seminars on university premises on all occasions; but some of the time they are. Issue 3.2 Did the respondent apply the PCPs to the claimant?[89]The PCPs were applied to the claimant. Issue 3.3 Did the respondent apply the PCP to persons who did not share the claimant’s protected characteristic?[90]The PCPs were applied to persons without a disability. Issue 3.4 Did the PCP put (or would they have put) persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, in that: Issue 3.4.1 She could not follow the seminar[91]Although this issue was not formally withdrawn by the claimant, the Tribunal has heard no evidence in relation to it. The issue relates to the alleged problems that the claimant experienced during the seminar. Those matters are no longer pursued by the claimant. In any event they relate to her hearing difficulties, not to agoraphobia. Since this issue is not made out on the facts then to the extent it is necessary to reach any conclusions, it does not succeed. Issue 3.4.2 There was uncertainty, on occasions when the claimant had to attend at the university, as to whether she was able to park close enough to[92]The evidence before the Tribunal is that on all occasions when the claimant wanted to park at the Rose Bowl car park, she was able to do so, somewhere on the ground floor. There is no suggestion by the claimant, and there has been no evidence before this tribunal, that it was an issue for the claimant whereabouts in the ground floor car park of the Rose Bowl she was able to park her car. To the extent that if she could not park in the Rose Bowl car park, she would have to park further away from the university premises, there is no evidence that the claimant ever had to do so. Further, there has been no evidence before the Tribunal as to how her disability gave rise to that disadvantage. This disadvantage is not therefore made out on the facts. Issue 3.5 Did the PCP put the claimant at that disadvantage?[93]See above. It did not. Issue 3.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: Issue3.6.1 Balancing the mobility needs of its staff and students; Issue3.6.2 Training staff in appropriate topics, including around equality and inclusion; and Issue3.6.3 Ensuring fair treatment for all staff and students.[94]Although strictly speaking it is not necessary to consider the justification issue, the Tribunal accepts that these are legitimate aims. The respondent had limited parking available for staff and students in the Rose Bowl car park and the needs of the various users needed to be balanced. Issue 3.7 The Tribunal will decide in particular: Issue 3.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;[95]Had it been necessary to do so, the Tribunal would have concluded that the PCP of not providing a permanent car parking space was an appropriate and reasonably necessary way to achieve those aims. As the claimant herself confirmed, she only needed to park on university premises 4 to 5 times per year. Giving her a permanent car parking space with her name on, which could only be used by her, would not have been reasonable.[96]In any event, following the Covid lockdown in 2020, the claimant did not have an ‘orange’ car parking pass. It appears that she relied on those ad hoc arrangements; and those ad hoc arrangements worked for her and the University, on the few occasions she needed to attend campus, until 22 April 2024. It appears that the claimant applied a day earlier than she was allowed to. In any event, a car parking space was subsequently allocated to her, when the claimant challenged the refusal of a car parking space.[97]It is not been possible to identify the reason why, when the claimant attempted to park on 30 April 2024, the barrier did not automatically lift. Nevertheless, the claimant was still able to find a car parking space after the barrier had been opened for her; and she was then able to attend the seminar.[98]As for the PCP of making all staff attend seminars on university premises, the tribunal would have concluded that this was justified as well. The claimant had raised no objection to it and was only required to attend campus four or five times a year. Prior to April 2024, she had not had any problems parking in the ground floor of the Rose Bowl car park. There were in any event other more reasonable ways of resolving the problem, than allowing the claimant to attend seminars remotely. For example, the permission giving to the claimant to book 2 weeks in advance, giving her priority over most other applicants; and the option to apply for an annual pass. Issue 3.7.2 could something less discriminatory have been done instead;[99]See above. The ad hoc arrangements had worked for the claimant and the University until 22 April 2024. The claimant retained the option of applying for an annual pass; she was reminded of that in April 2023. She declined to make an application. Had she done so, the matters which gave rise to these allegations may well never have arisen. Requiring claimants with disability issues to make an annual application was a reasonable requirement, given the demand for car parking spaces by those attending the Rose Bowl and the desire by the respondent to ensure that the requirement still existed. Issue 3.7.3 how should the needs of the claimant and the respondent be balanced?[100]See above. The Tribunal concludes that the needs of the claimant and the other users of the car park were properly balanced. Issue 4. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Issue 4.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[101]Knowledge of disability is conceded in this case. Issue 4.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:4.2.1 Making all staff attend seminars on university premises; and4.2.2 Not providing permanent parking for staff.[102]See above, issue 3.1. Issue 4.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: Issue 4.3.1 She could not follow the seminar[103]See the conclusion above regarding issue 3.4.1. This is not made out. Issue 4.3.2 There was uncertainty, on occasions when the claimant had to attend at the university, as to whether she was able to park close enough to[104]See the conclusion above regarding issue 3.4.2. This disadvantage is not made out. Issue 4.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[105]Since the claimant has failed to establish substantial disadvantage, it is not possible or necessary to reach any conclusions in relation to this issue. Issue 4.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: Issue 4.5.1 Allowing the claimant to attend the training sessions remotely via video-conference[106]Had it been necessary to do so, the Tribunal would have concluded that this was not a necessary step. The claimant was only required to attend campus 4 to 5 times a year, including times when she was required to take part in training seminars on-site. The claimant had never objected to this before and had been able to attend campus, up to March 2020, relying on an annual pass for which she had previously paid 1% of her salary. Attending in person seminars allowed her to maintain social contact with her colleagues.[107]After March 2020, the claimant chose to rely on ad hoc parking arrangements, in relation to which no problems were experienced until one occasion in April 2024. The claimant was able to apply for an annual pass as an alternative, something which she was reminded about in April 2023, but chose not to do so, presumably because the ad hoc arrangements were working perfectly fine for her. Allowing the claimant to apply two weeks in advance meant it was even more likely that in future, the ad hoc arrangements would continue to be sufficient. Allowing the claimant to attend the training sessions remotely via video-conference instead was not a reasonable step. Issue 4.5.2 Providing the claimant with a permanent parking space close to[108]See the conclusions above in relation to issue 3.7.1. For the same reasons, this would not have been a reasonable adjustment. Issue 4.6 Was it reasonable for the respondent to have to take those steps and when?[109]See above. Issue 4.7 Did the respondent fail to take those steps?[110]See above. Summary of Conclusions[111]For all of the above reasons, the claims do not success and are dismissed.