Employment Judge H GrewalMs M Duncan-Brown (instructed by Counsel) for claimantDate 9 April 2017
JUDGMENT
[1]The complaint of disability-related harassment in respect of the meeting of 7 October 2015 is not well-founded;[2]The Tribunal does not have jurisdiction to consider any of the other complaints of disability-related harassment;[3]The Tribunal does not have jurisdiction to consider the complaint of failure to make reasonable adjustments in respect of the Claimant’s move to the UK region in January 2015;[4]The other two complaints of failure to make reasonable adjustments are not well-founded;[5]The complaint of disability discrimination under section 15 of the Equality Act 2010 is not well-founded.
REASONS
[1]In a claim form presented on 22 February 2016 the Claimant complained of disability discrimination. She gave ACAS notification of Early Conciliation (“EC”) on 22 December 2015 and the EC certificate was granted on 22 January 2016.
The Issues
[2]At a preliminary hearing on 29 April 2016 EJ Lewis spent some time clarifying with the Claimant what complaints she was making about the Respondent’s treatment of her and how these related to her disabilities. As a result of that discussion it was ascertained that that the Claimant was making complaints of disability-related harassment, three complaints of failure to make reasonable adjustments (including the one relating to her dismissal) and a complaint under section 15 of the Equality Act 2010 in relation to her dismissal. The section 15 claim was also said in the alternative to be a complaint of failure to make reasonable adjustments. It was agreed that the issues to be determined in respect of those complaints were as follows. Disability2.1 Whether the Claimant was disabled at the material time by reason of depression and/or migraine. The Respondent conceded that the Claimant was disabled by reason of depression from 10 December 2014. Disability-related harassment2.2 Whether the following acts occurred and, if they did, whether they amounted to disability-related harassment:(a) In about February 2014 Dr Al-Tarkait told the Claimant that she should come into work even if she was dying and her senior would then assess whether her state required her to go back home or not;(b) During her performance assessment the Claimant was reproached for her absence due to her medical condition and follow up appointments;(c) In about June 2014 the Claimant was asked to provide a medical report to confirm that she was having severe migraine attacks;(d) On 31 March 2015 when the Claimant was about to move a pile of documents Dr Al-Takait told her, “No leave it or you will be off sick for 3 or 4 days again because of it.”(e) On 31 March 2015 Dr Al-Tarkait said that women were sensitive;(f) On 7 October 2015 Mr Al-Ali asked the Claimant why she wasn’t giving 100% of her capacity and was only at 30% whereas in the past she had given 200%. He asked her if she was planning to be sick again and said that it seemed like in the UK GPs gave “sick notes easily like candy.” Failure to make reasonable adjustments2.3 Whether the Respondent applied the following PCPs: (a) The practice of rotating staff for business or other reasons which resulted in the Claimant being moved to the UK region in January 2015; (b) Requiring employees to do all their work in the office. (c) Requiring employees to have a certain level of attendance in order to avoid having their employment terminated. 2.2 Whether those PCPs put the Claimant at a substantial disadvantage in comparison with persons who were not disabled; 2.3 Whether the Respondent knew or could reasonably have been expected to know that the Claimant had the disabilities and was likely to be placed at the disadvantage;2.4 If the answer to all the above is affirmative, whether the Respondent took such steps as it was reasonable to have to take to avoid the disadvantage. Discrimination arising from disability2.5 Whether the Respondent knew or could reasonably have been expected to know that the Claimant had the disabilities;2.6 Whether the Claimant was dismissed because of the amount of sick leave that she had taken;2.7 Whether the sick leave had been as a result of or related to her disability;2.8 If the answer to all the above is affirmative, whether dismissal at that time was a proportionate means of achieving a legitimate aim. Jurisdiction2.9 Whether the Tribunal has jurisdiction to consider complaints that relate to acts that took place before 23 September 2015. Application to amend[3]At the outset of the hearing the Claimant applied to amend her claim to add two new complaints of failure to make reasonable adjustments. The first was said to be based on the PCP of using the flexibility clause in the contract or HR practice to transfer employees to different departments. It was being said that this PCP had been applied to the Claimant to transfer her to the Administrative Department and that it had placed her at a substantial disadvantage. The second was based on the physical features of the office (phones, shredders, photocopiers, etc) which put the Claimant at a substantial disadvantage.[4]The application to amend was refused. The Claimant was seeking to add new claims that would require additional pleading and additional evidence. It would lead to the hearing having to be adjourned and additional costs being incurred by the Respondent. The application was made very late in the day. There was no explanation as to why it had not been made earlier. The Employment Judge at the preliminary hearing had spent considerable time with the Claimant working out the nature of her complaints. The complaints that the Claimant wanted to add were most likely to be out of time. Greater hardship would be caused to the Respondent if we allowed the amendment than to the Claimant if we refused it. It was not in the interests of justice to allow it.
The Law
[5]Section 6 of the Equality Act 2010 (“EA 2010”) provides that a person (P) has a disability if P has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. “Substantial” means more than minor or trivial (EA 2010 section 212(1)). The effect of an impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person concerned. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur (EA 2010 Schedule 1 paragraph 2(1) and (2). The Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) provides, “C5… Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of long-term… C6. For example, a person with rheumatoid arthritis may experience substantial adverse effects for a few weeks after the first occurrence and then have a period of remission … If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include Menieres Disease and epilepsy…” An example is given in the Guidance of a person with Menieres disease who experiences mild tinnitus at times, which does not adversely affect his ability to carry out normal day-to-day activities, but also has temporary periods of significant hearing loss every few months, which does adversely affect his ability to carry out normal day-to-day activities. It states that although his condition does not continually have this adverse effect, it satisfies the long-term requirement.[6]Section 26 EA 2010 provides, “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ... (4) In deciding whether conduct has the effect referred to in subsection(1)(b), each of the following must be taken into account – (a) the perception of B; (b) the circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.” Disability is a relevant protected characteristic.[7]A duty to make reasonable adjustments is imposed on a person (A) where a provision, criterion or practice (“PCP”) of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. If the duty arises A is required to take such steps as it is reasonable to have to take to avoid the disadvantage (section 20(3) Equality Act 2010); A is not subject to the duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at the disadvantage referred to in Section 20 (paragraph 20 in Schedule 8 Equality Act 2010).[8]In Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 the Court of Appeal held that the application of a PCP that an employee must maintain a certain level of attendance at work in order not to be subject to disciplinary sanctions put a disabled employee, whose disability increased the likelihood of his absence from work on ill health grounds, at a substantial disadvantage in comparison with persons who were not disabled. However, the Tribunal had been entitled to hold that the steps proposed by the claimant in that case (the disregarding of a 62 day period of disability-related sickness absence and extending the trigger point at which action would be initiated under the employer’s procedure) were not steps which the employer could reasonably be expected to take in the circumstances of that case.[9]Section 15(1) of the Equality Act 2010 provides that a person(a) (A) discriminates a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. That section, however, does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had a disability.[10]Paragraph 4.31 of the of the Equality and Human Rights Commission: Code of Practice on Employment (20110 provides, “Although not defined by the Act, the term ‘proportionate’ is taken from EU Directives and its meaning has been clarified by decisions of the CJEU … EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.”[11]In Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 the Supreme Court considered, in the context of an indirect discrimination claim, what is required to establish that a particular measure is a proportionate means of achieving a legitimate aim. Baroness Hale, with whom the other Justices of the Supreme Court agreed, said at paragraphs 22-25, “To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question… A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate… Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer… To some extent the answer depends upon whether there were non-discriminatory alternatives available.”[12]In Hardy and Hansons plc v Lax [2005] IRLR 726 Pill LJ in the Court of Appeal stated, “The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal … is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”[13]In Burdett v Aviva Employment Services Ltd EAT/0439/13 HHJ Eady, having quoted the above passage in Hardy and Hansons, said at paragraph 35, “As the use of the term “objective” makes plain, whether or not a measure is justified in this sense will not depend upon the subjective belief of the employer. Thus the test is not whether the employer considered other alternatives at the time of implementing the measure in question … Neither will an objective justification be undermined because the employer’s consideration of the issue was inadequate or procedurally flawed … although, of course, that might – as a matter of fact - have meant that the employer had failed to appreciate that there were other, less discriminatory, alternatives available.”[14]Section 136(2) of the Equality Act 2010 provides that if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the tribunal must hold that the contravention occurred unless A shows that he did not contravene the provision.[15]Section 123(1) of the Equality Act 2010 provides that a complaint of disability discrimination may not be brought after the end of three months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal considers just and equitable. Conduct extending over a period is to be treated as done at the end of the period (section 123(3)(a)) and failure to do something is to be treated as occurring when the person in question decided on it (section 123(3)(b)). In the absence of evidence to the contrary, a person (A) is to be taken to decide on failure to do something when A does an act inconsistent with it or, if A does no inconsistent act, on the expiry of the period in which A might reasonably have been expected to do it (section 123(4)).[16]The relevant provision in the Disability Discrimination Act 1995 referred to “an act extending over a period” and to “a deliberate omission” to do something. It contained a provision identical to section 123(4) of the Equality Act 2010 as to when a person was deemed to have decided upon an omission. In Kingston upon Hill City Council v Mastuszowicz [2009] ICR 1170 the Court of Appeal held that a failure to make reasonable adjustment was an omission and not an act. Therefore, the time for presenting the complaint ran from when the person decided upon the omission. There is no concept of a continuing omission.
The Evidence
[17]The Claimant gave evidence in support of her claim. The following witnesses gave evidence on behalf of the Respondent – Abdulkhaleq Al-Ali (Manager, London office), Hanadi Suleiman (Senior Medical Co-Ordinator), Quissam Aariba El Allali (Assistant Medical Co-Ordinator) and Nadia El-Ghamrawy (Senior Administrative Officer). Dr Thomas Britton (Consultant Neurologist) was called by the Respondent to give expert evidence. Having considered all the oral and documentary evidence the Tribunal makes the following findings of fact.
Findings of Fact
[18]The Claimant is a 32 year old woman who was born and brought up in France. She speaks French, Arabic and English.[19]In June 2008 the Claimant was examined by Dr Schott, a Registrar in Neurology. In her report Dr Schott said that the Claimant had been diagnosed with migraine at the age of 16 and developed typical migrainous features particularly at times of stress. These included a throbbing headache associated with photophobia and nausea. At the time when she was referred to Dr Schott the Claimant was feeling very stressed because she was doing ‘A’ Level examinations. Dr Schott recommended that she be prescribed Rizatriptan Melt if she got headaches intermittently, Propranolol if she got them more than once a week and that if the headaches persisted she should consider stopping or switching her contraceptive pill.[20]In October 2008 the Claimant commenced studying for an undergraduate degree at London Metropole University. In a letter dated 1 December 2008 her GP said that she developed migrainous attacks after long hours in front of the computer or when she was lethargic. He described the same symptoms as Dr Schott and said that at times of an acute attack these prevented her from carrying on with her normal daily activities. He said that during these attacks she required bed rest and that her cognitive functions were markedly reduced and disabled her a great deal in aspects of her course work. He concluded that her migraine attacks were chronic in nature and that it was likely that she would suffer with them long term.[21]It appears that during her time at the University between 2008 and 2010 some adjustments were made – she was given extensions of time for examinations and for submitting course work, she was given paper handouts and notes and she was given some assistance with typing. The Claimant was awarded a BSc in Biomedical Science in 2011 and an MSc in 2013.[22]The Tribunal had no medical information about the Claimant between 2010 and February 2013. The Claimant’s GP notes that were before us started in February 2013. There is no entry in those notes that relates to migraine until May 2014.[23]The Respondent is responsible for the exploration, drilling and production of oil and gas within the state of Kuwait. It is also involved in the storage of crude oil and delivery to tankers for export. It employs about 10,000 people in Kuwait. The Respondent is headed by a CEO who is supported by seven deputy CEOs (“DCEO”). Each DCEO is responsible for a division of the company.[24]The Respondent has a small office in London which has three departments. The largest and most important department in the London office is the medical department. It accounts for over 75% of the expenditure of the London office. The other two departments are the accounts and administration departments and they essentially support the work of the medical department. The Respondent, through the Ahmadi Hospital in Kuwait, provides medical treatment for all its employees and their dependants. The medical department in the London office co-ordinates the provision of medical treatment outside Kuwait, mainly in the USA, UK and Europe, where such treatment has been approved by the Senior Medical Committee of the Ahmadi Hospital (“the SMC”). At the relevant time Mr Al-Ali was the manager of the London office and he reported to the DCEO of the Administration and Finance Division. The medical department was managed by Dr Al-Tarkait who was the Deputy Manager and Medical Attache. Each department in the London office had a supervisor who was known as the “senior”. The London office had about 30-35 employees on permanent or fixed term contracts.[25]There were three teams in the medical department – the UK team, the USA team and the Europe team. The Europe team dealt mainly with the provision of medical treatment in France, Belgium, Germany, Spain and Italy. The Europe team was the smallest of the three teams. The staff in the medical department comprised Medical Co-Ordinators (at Grades 1 and 2, 2 being the higher grade) and Assistant Medical Co-Ordinators. The staff in the medical team were not recruited to work exclusively with patients in a specific country or geographic region or in a particular team. They were recruited as Medical Co-Ordinators or Assistant Medical Co-Ordinators. The staff were rotated to work with different countries and in different teams to ensure that there was a good spread of knowledge amongst the Medical Co-Ordinators of all countries and regions. Clearly, if a specific language was required to work with a particular country, then only employees who had that language would be able to work with that country.[26]The Claimant commenced working for the Respondent on 16 April 2013 as a temporary agency worker. She was appointed to the role of Assistant Medical Co-Ordinator. As she was a French speaker she was assigned to work in the Europe team with patients in France and Belgium and later in Switzerland. There were two other Assistant Medical Co-ordinators in the Europe team – Alessia Widowski, who worked mainly with patients in Germany and Italy, and Quissam Arriba El Allali, who was Dr Al-Takrait’s PA and worked mainly with patients in Spain and a third of US patients. The Medical Senior was Hanadi Suleiman. They all worked on the fifth floor. The Respondent occupied offices on the first and fifth floors.[27]The Claimant was absent sick for a week in August 2013 for stomach related problems and for a week in November for sinusitis.[28]On 2 December 2013 the Claimant was engaged by the Respondent as an employee on a fixed term contract for one year. She was employed as an Assistant Medical Co-Ordinator. Her contract provided that the Respondent had the right to transfer her to any other suitable vacant position in the London office and that she was not entitled to refuse any such offer. Her hours of work were from 8.30 am to 4.45 pm with one hour for lunch. The first hundred days were considered as a probationary period. During the probationary period employees were not entitled to take holidays. There was, however, no prohibition on them taking sick leave during that period.[29]As part of the recruitment process the Claimant was required to undergo a medical examination. She was asked whether she had various medical conditions and she responded “yes” for back trouble and operation or admission to hospital. She was asked to give more details of these and the details that she gave were recorded. She was asked to indicate whether she had any health troubles that had not been covered in the health questionnaire. None were recorded and the Claimant signed a declaration that all the information provided was correct. We did not find the Claimant’s evidence that she told the doctor that she had suffered with migraines since her teenage years, that he did not record it but that she nevertheless signed the form to be credible. The reason migraines were not recorded was because the Claimant did not tell the doctor about them. Nor did she say anything to her managers about the migraines when she started work.[30]The Claimant was absent sick for nine days from 21 to 31 January 2014 because of cough and chest infection. Dr Al-Tarkait did not say to the Claimant when she returned to work that she should come to work even if she was dying and that Ms Suleiman would assess whether she needed to go back home or not.[31]The Claimant was absent sick on 5 March 2014 and the following day she arrived at work at 11.07 am. In accordance with the Respondent’s procedures she completed forms that had to be completed when employees were absent sick, arrived late or left early. She gave the reason for her sick leave on 5 March as being “severe migraine”. The reason given for her late arrival on 6 March was “GP/nurse assessment”. However, it was clear from the Claimant’s GP records that she did not attend her doctor’s surgery on that day. Both forms were signed by Ms Suleiman and Dr Al-Takrait. The Claimant knew that if she could not attend work because she was ill she should call or text at the start of the working day to inform her employer of that. The Claimant normally failed to do that.[32]The Claimant arrived late on three other occasions in March 2014. She arrived at 9.10, 10.45 and 10am. The reasons given were “delayed by transportation”, “GP appointment” and “sickness”. The Claimant did not have or attend an appointment at her doctor’s surgery on the day when that was given as the reason for arriving late.[33]The Claimant took twelve days’ annual leave from 16 April to 6 May 2014. She went to France. While in France she was diagnosed as having helicobacter pylori and was prescribed antibiotics. On her return to the UK she had an allergic reaction to the antibiotics and developed a rash on her neck and chest. The Claimant told Ms Suleiman about the helicobacter pylori and showed her the rash. She told her that she did not feel well. Dr Al-Takrait asked her why she had come to work if she was ill and why she had not raised it earlier in the day. On 12 May 2104 the Claimant went to see her GP and was certified as unfit to work from 12 to 18 May 2014 because of “allergic reaction.” On 21 May the Claimant left early to see her GP in order to obtain a letter from him that she needed to see her doctor in France for follow up tests for the helicobacter pylori. He said that she would have to travel to France on 19 June to have follow up tests on 20 June and to see her doctor on 23 June 2014.[34]On 29 May 2014 the Claimant was absent sick and the reason given was “migraine and GP emergency appointment.” The Claimant saw her doctor on that day. The doctor recorded that she had a history of migraine and had been seen by a specialist seven years earlier. She was getting migraine attacks periodically at that time and wanted something to alleviate the symptoms. At that time she was just taking paracetamol. He prescribed her Sumatriptan. She also requested a letter for her employers to make them aware that she suffered from migraine and was being treated for it. The doctor gave her a letter in which she said that the Claimant had reported a history of migraine, that she got symptoms “intermittently” and had been started on migraine treatment on 29 May.[35]On 11 June 2014 the Claimant spoke to her GP and told him that the migraines were affecting her attendance and performance at work and that the light from the computer screen caused her to have migraines and that it would be helpful if her computer could be fitted with an anti-glare screen. She asked him to write her a letter to that effect. The doctor did so on 11 June. It was not entirely clear when or to whom the Claimant gave the letter. Mr Al-Ali saw it around 5 August 2014 and approved it immediately. The Claimant was provided with an anti-glare screen on 2 September 2014. There was no evidence that she chased up for it or complained about not getting it between June and the beginning of September. The Claimant did not consult or visit her GP again for migraine until 26 August 2014.[36]The Claimant was absent sick for four days from 19 to 24 June 2014 when she said that she went to France for follow up consultation and assessment.[37]Sometime in early summer 2014 Dr Al-Tarkait made a comment to the effect that he came in to work every day even though he used a wheelchair whereas the women in the team would call in sick if they had a headache. Dr Al-Tarkait had a muscle wasting disease and was a wheelchair user.[38]By the summer of 2014 the Claimant’s performance was being affected by her frequent absences from work. The three Assistant Medical Co-Ordinators in the Europe team were all expected to cover for each other during their absences. Ms Widowski and Ms El Allali complained about the Claimant’s frequent absence as they felt that that added to their workload. The three Assistant Medical Co-Ordinators did not have a good working relationship and on occasions argued.[39]In June 2014 Dr Al-Tarkait tried reorganising the work of the Europe team so that the responsibilities of the team were split up according to the areas of work (such as appointments, invoices, cost guarantees) rather than the countries. The intention was that the tasks would be rotated among the co-ordinators. The Claimant criticised the way in which Ms Widowski and Ms El Allali dealt with French hospitals and complained about the number of invoices which she had to do, some of which pre-dated her employment with the Respondent. The co-ordinators asked Dr Al-Takrait to revert to the original system and after a couple of months the trial was abandoned.[40]Ms El Allali had a long period of sickness absence from 24 July to the end of August 2014.[41]The Claimant was absent sick on 4 August 2014 and the reason given on the sick leave form was “migraine”.[42]The Claimant arrived late for work on 3 and 8 September 2014. On 3 September she arrived at 10.50 am and the reason given was “Appointments at GP practice”. The Claimant did not have an appointment and did not attend at the GP’s surgery on that date. On 8 September she arrived at 8.50 am and the reason given was “delayed by transportation”. On 15 September 2014 the Claimant was absent sick and the reason that she gave was “stomachache/headache/dizziness”.[43]In October 2014 Ms El Allali was asked to take on responsibility for all the medical invoices for Europe and the Claimant and Ms Widowski were asked to focus on the co-ordination work for Europe, At that stage the Claimant and Ms Widowski were moved to an office on the first floor.[44]The Claimant was absent sick for eight days from 8 to 17 October 2014. She was medically certified as unfit to work because of abdominal pain.[45]On 3 November 2014 the Claimant was absent sick and the reason that she gave was “migraine crisis”.[46]In spite of the Claimant’s poor attendance record (she had by that stage had 28 days’ sickness absence in 2014 and had often arrived late) on 3 November the Respondent offered to extend her contract for another year to 1 December 2015. The Claimant accepted that offer on 5 November 2014.[47]In November the Claimant arrived late at work on four occasions and had two separate days of sickness absence. She arrived at 9 am on 6 November (“delayed by transportation”), at 12.20 on 10 November (“visit to GP practice”), 11.45 on 19 November (“GP appointment”) and 12.15 on 24 November (“medical appointments”). She attended the GP’s surgery on 19 November but not on 10 November. She was absent sick on 13 and 27 November. The reason given on each occasion was “sickness”. On 19 November when the Claimant attended her GP’s surgery she complained of “feeling tired and achy for about 1 month –muscles feel achy”. Her doctor requested a number of tests, the results of all of which were normal.[48]The Claimant saw her GP on 10 December 2014. She said that she had had work related stress for the past eighteen months and also stress with financial issues. She had low energy levels and low mood. She said that she had been off work with flu like symptoms. The doctor diagnosed her as suffering from depression and prescribed Fluoxetene (an anti-depressant) and also provided her with information for a self-referral to a psychologist. He certified her as unfit to work from 9 to 15 December 2014 because of “flu like illness”. She was reviewed by the doctor on 23 December 2014.[49]In January 2015 Dr Al-Tarkait re-organised the medical team. Maria Neiva (a French speaker) was moved from the USA team to the Europe team and was assigned to the French speaking countries, Asam Zaid was moved from the UK team to the USA team and the Claimant was moved to the UK team. The Claimant joined three other co-ordinators working in the UK team. The Claimant did not indicate to anyone that she was unhappy with the move or that she would have difficulty coping with the role because of her medical condition. The UK team was bigger than the Europe team, in that it comprised four medical co-ordinaters, but it was responsible for over twice as many patients as the Europe team. The UK team was busier and had a heavier workload that the Europe team. The Claimant’s workload in the UK team was in line with that of the other co-ordinators working in that team.[50]The Claimant was absent sick on 13 and 14 January 2015. The reason she gave for her absence was “severe migraine crisis”. On 26 January 2015 (a Monday) she arrived at work at 9.55 am. She said that she was late because she had been to her GP’s practice. It is clear from the GP records that she did not attend the practice that morning. The following Monday, 2 February 2015, she arrived late again (8.50 am). The reason given on this occasions was that she had been “delayed by transportation”. The Claimant was absent sick from Tuesday to Thursday of that week and the reason given by her was “sickness”. She attended work on Friday but was absent sick the following week (9-13 February). She had a medical certificate that she was unfit to work because of “gastric viral illness”. On 19 February she arrived at work at 11.30 am and said that she had been “delayed by personal circumstances”.[51]On 4 March 2015 the Claimant arrived at work at 11.55. She went to see her GP that day for a review of her depression. The GP noted that overall she felt better and that her mood was better with the anti-depressant.[52]On 5 March Ms Suleiman completed the Claimant’s annual appraisal in consultation with Dr Al-Takrait. The Respondent’s appraisal process involves assessing five aspects of the employee’s performance and awarding the employee a score of between 0 and 15 for each aspect (0 being the lowest and 15 the highest). Ms Suleiman awarded the claimant a total of 45 for her performance attributes – she was awarded 8 for communication and teamwork and 9 for productivity and quality of work and job knowledge and practical experience. A further 25 marks are available for other attributes. The total score determines the overall rating the employee receives. The overall ratings available are outstanding, very good, good, fair and poor. The Claimant was awarded an overall score of 59 (out of 100) and a rating of “fair.” Ms Suleiman’s comment was that the Claimant met “some position requirements, objectives and expectations.” It was unusual for co-ordinators to receive a rating of “fair” or “poor”.[53]Ms Suleiman met with the Claimant on 6 March (Friday) to discuss her assessment. She told her that her performance had been affected by her attendance and her teamwork and that she needed to improve those to improve her rating. The Claimant made no comment and did not challenge the assessment.[54]The Claimant was absent sick the following Monday and Tuesday (9 and 10 March) and the reason given for her absence was “severe migraine crisis”. On the Friday (13 March) the Claimant arrived at work at 8.55 (“delayed by transportation”) and left early at 2.45 pm on the grounds that she had an appointment at her GP’s practice. On the following Monday she arrived at work at 10.47 because of “GP practice visit”. She did not visit or have an appointment at her GP practice on either of those days. The Claimant was absent sick for eight days from 18 to 27 March and was medically certified as being unfit to work because of “flu like illness”.[55]On 24 March 2015 the other three medical co-ordinators in the UK team submitted a written complaint to Dr Al-Tarkait about the problems caused by the Claimant’s absence largely because the system had not been updated by her and they had no contact details for some of the patients and because most of the logs and reports had not been filed properly. There were no updates and handover most of the time when she was absent.[56]On 31 March the Claimant and Ms Suleiman were in Dr Al-Takreit’s office. Dr Al-Tarakait asked his PA and one of the medical co-ordinators to move a large pile of invoices on a desk. The Claimant offered to help and he told her to leave it. She tried to help them and he said to her something to the effect of “No. Leave it or you will be off sick because of it”. The Claimant was upset by the remark and left the room and went to see Mr Al-Ali. She was in tears and shaking when she arrived in Mr Al-Ali’s office. He gave her some tissues and a glass of water and, when she had calmed down, asked her what had happened. She said that she had been bullied by Dr Al-Takreit for a while and told him about the incident with the pile of invoices. Mr Al-Ali asked her why she had not been to see him before if there was an issue with bullying and the Claimant said that she had been scared that she would lose her job if she raised it. Mr Al-Ali assured her that he would speak to Dr Al-Takreit about it.[57]Mr Al-Ali spoke to Dr Al-Takreit about it. He confirmed that he had made the comment which the Claimant had alleged but said that he was not being sarcastic but was genuinely concerned about her health. Mr Al-Ali also spoke to Ms Suleiman who confirmed Dr Al-Takreit’s account. Mr Al-Ali gave Dr Al-Takreit the benefit of the doubt and accepted what he said. He told him, however, that he should not have made the remark in front of others and that it would be helpful if he could explain to the Claimant what he had just said to him. Mr Al-Ali then invited the Claimant to Dr Al-Takreit’s room and left the two of them together. When he returned a short while later they were smiling and talking to each other in a friendly way. On the following day the Claimant sent Mr Al-Ali an email in which she thanked him for his help, patience and constant support. She said that she had spoken to Dr Al-Takrait and hoped that they would “start and have a new prosperous chapter.” In light of that, Mr Al-Ali took the view that there was no need to take any further action in respect of the matter.[58]Due to the Claimant’s increasingly high levels of sickness absence the Respondent referred her to the Cromwell Hospital for a medical opinion about her health and fitness to work. The Respondent regularly used the Cromwell Hospital for its patients and it referred her to the hospital and asked for one of its doctors to examine her and to provide a report. The doctors in the hospital are general physicians, and not occupational health physicians. The Claimant was seen Dr Nabil Hamami, a general physician, on the morning of 1 April 2015. He provided a report on the same day. He said that her medical history was that of migraine since her teens, polycystic ovary, treated Helicobacter gastritis and oesophageal reflux, depressive anxiety and Hypovitaminosis D. He set out the medication which she was taking at the time which included Fluoxetine, which had been increased recently from 10 mg to 20 mg daily and said that she was awaiting psychological counselling to be arranged by her GP.[59]On 2 April 2015 (Thursday) the Claimant left work early at about 10 am to attend an emergency GP appointment. The Claimant told her GP that was not feeling well, she had been bullied and under a lot of pressure at work, and that she was very tearful and not sleeping. On the following Monday the Claimant went to see her GP again and said that she wished to be signed off sick. The Claimant was given a medical certificate that she was unfit for work from 7 April to 7 May 2015 because of “stress at work, reactive depression”. The Claimant emailed that certificate on the same day to Ms Suleiman.[60]The Claimant remained medically certified as unfit to work until 25 June 2015 because of stress at work and depression.[61]On 2 June 2015 Ian Causer of the Job Retention Service, to which the Claimant had been referred by her GP, contacted the Respondent. He said that the Job Retention Service aimed to support employees who had been signed off sick to make a successful and sustainable return to work by working with both the employer and the employee. He asked the Respondent to contact him. On 10 June the Respondent contacted the Claimant to find out when she could attend a meeting at work with Mr Causer. Mr Causer was not available to attend a meeting until 26 June. The meeting was scheduled for 11 am on 26 June.[62]The meeting on 26 June 2015 was attended by Mr Al-Ali, Dr Al-Tarkait, Nadia El-Ghamrawy (known as Nadia Awad), the Claimant and Mr Causer. The Claimant produced at that meeting a medical certificate from her GP that due to stress at work, depression and migraines she might be fit to return to work if she had a phased return to work, altered hours, amended duties and workplace adaptations. He suggested in particular that she work half a day for four weeks, amended duties in a clear defined role and a quiet room to reduce risk and frequency of migraines. The Respondent agreed to move one of the employees in the Medical Department from his office on the fifth floor so that the Claimant could sit in his office. The Claimant was happy with that. It was also agreed to move the Claimant from the Medical Department to the role of Administrative Officer in the Administration and Training Department. The work in the Administration Department was seen as being lighter and less stressful than the work in the Medical Department. It was not a “patient facing” role. Although the Claimant was taking on a less onerous role, it was agreed that her salary would remain the same. Again, the Claimant was happy with that proposal and agreed to it. Finally it was agreed that for the next three to four weeks the Claimant would work from 10 am to 4 pm. It was agreed that the Claimant would return to work on Monday, 29 June 2015.[63]On 29 June 2015 the Claimant proposed to Mr Al-Ali that she work from 11 am to 3 pm in the first week, from 11 am to 4 pm in the second week, from 10 am to 4 pm in the third week and her normal hours in week four. Mr Al-Ali immediately agreed to that.[64]In her new role the Claimant’s supervisor was Nadia Awad. During her phased return to work Ms Awad began by giving the Claimant the training procedure to read and then introduced her to the procedure for booking courses by copying into her correspondence for training. As the Claimant gradually became conversant with the procedure and more confident she was given more work to do by herself. By the end of July the Claimant was working full-time and was able to carry out her new role.[65]The Administration Department had a WhatsApp group called “KOC Admin Group”. Ms Awad and the other three employees in the Administration Department were part of this group. The KOC Admin Group was a good way to keep in touch if one of the team was away from the office. On 8 July 2015 the Claimant joined the KOC Admin Group.[66]On 14 July 2015 the Claimant was absent sick and gave the reason as “sickness”. On 22 July 2015 the Claimant arrived at work at 11.40 am because she had a GP appointment. On 27 and 28 July 2015 the Claimant was absent sick because of gynaecological problems. On 7 August 2015 the Claimant was absent sick and the reason that she gave was “hospital visits (worsening of symptoms)”. There was no evidence of her having been to a hospital that day.[67]In August Ms Awad was due to be away from work from 3 to 12 August 2015. She was attending a conference in New York and was then taking a few days’ holiday. Before she left she and Mr Al-Ali spoke to the Claimant. Ms Awad told the Claimant that if she was copied into an email she should go ahead and book the course. If she was not copied into the email Ms Awad would forward her the email from New York and ask her to book the course. The Claimant and Ms Awad were the only persons booking the training and the Claimant would have sole responsibility for it in Ms Awad’s absence. The Claimant was told that if she had any problems she could turn to Elvira Whitehead in the Administration Department, who had previously carried out the Claimant’s role, or to Mr Al-Ali. The Claimant was confident and happy that she would be able to cope.[68]Danah Marei, a geologist employed by the Respondent in Kuwait, was booked to attend a mapping subsurface structures (“MSS”) course in Dubai from Sunday 30 August to Thursday 3 September 2015. On 12 August the course provider sent Ms Awad an email that the course had been cancelled. On 13 August Ms Awad forwarded the email to the Claimant and asked her to inform Kuwait that the course had been cancelled. On 17 August Ms Awad forwarded another email from the course provider about the cancellation to the Claimant and asked her to take action on it. The Claimant did not act on either of those emails and did nto inform Kuwait of the cancellation.[69]On 18 August the Claimant was absent sick with back pain. She informed Ms Awad that she was too unwell to come in to work. On 19 August the Claimant arrived at work at 11.10 am because she went to see her doctor that morning.[70]The following week (24 – 28 August) Ms Awad was away from work on a training course in Holborn in London. While she was on the course she could access her work emails on her I-pad but she had no remote access to the training folder. On 26 August she received another email from the MSS course provider reminding her of the cancellation and asking her to acknowledge receipt. At 7.20 am on 27 August she forwarded that email to the Claimant and asked her whether she had informed Kuwait of the cancellation.[71]On 25 August the Claimant was absent sick. At 9.05 that morning she sent a message though the WhatsApp KOC Admin Group to say that she had a terrible migraine and would not be attending work. On 26 August she attended work but left early at 2.30 pm and went to see her GP. She told him that she had had a headache since the previous day and that it felt like a typical migraine to her. She had a throbbing headache, nausea and sensitivity to light. She was advised to return to work only when it had settled. On 27 August the Claimant did not inform Ms Awad or the WhatApp group that she was still unwell and would not be attending work that day.[72]At 12.03 on 27 August the Claimant responded to Ms Awad’s email of that morning and said, “I didn’t see it before. I had another cancellation. But I sent it now.” Shortly after 1 pm Ms Awad asked the Claimant on the WhatsApp group to find out the name of the employee who was affected by the cancellation and to send her the details. She told her that it was urgent. The reason for that was that in the Middle East offices do not work on Fridays and Saturdays and, therefore, the employee affected by the cancellation had to be informed about it by the end of that day. The Claimant responded “Ok let me look” but did not inform Ms Awad that she was not in the office that day. At around 6.30 pm Ms Awad sent the Claimant a number of personal WhatsApp messages. She reminded her that she had forwarded the cancellation email to her on 17 August and said that she hoped that the Claimant had informed Kuwait early enough to allow them to cancel the arrangements. She said that if Kuwait had not been informed early enough it would be a big problem because employees always travelled for the training a few days before it was due to start. She asked to meet the Claimant the following day to discuss it. Ms Awad had arranged to leave her training course early at lunch time the following day. At 6.55 pm the Claimant informed Ms Awad that she was still trying to find the name of the employee in question.[73]On the following morning the Claimant sent Ms Awad a message that she was still unwell and unable to attend work. When Ms Awad got back to work she found out the name of the person attending the course and then contacted someone in Kuwait on a mobile telephone number. By that time Ms Marei was already on the aeroplane to Dubai. Ms Awad then tried to find another course that she could attend in Dubai so that she did not have a wasted trip, but was unable to find any other course. This resulted in funds (Ms Marei’s airfare and per diem expenses) being wasted as well as her time. Ms Marei and her team leader were both unhappy and complained formally. Head Office was unhappy and threatened to take away the course organisation function from Ms Awad.[74]On 1 September the Claimant arrived at work at 12.10 because she had an appointment with her GP. The Claimant told him that she had two episodes of migraine the previous week which had responded to Zolmiitriptan, which she had been prescribed on 26 August. On 2 September 2015 she was absent sick and the reason given was “sickness.”[75]On 3 September 2015 Ms Awad met with the Claimant and gave her a verbal warning because her performance had fallen below acceptable standards. Her failure to act on the cancellation of the MSS training course was given as an example. She was advised of her right of appeal. Ms Awad also set out the verbal warning in an email to the Claimant on the same day. There was a further meeting on 4 September at which Dr Al-Takrait was also present. The Claimant asked about the procedure for appealing. She was told that the timeframe for appealing was five days and she would have to set out the grounds on which she wanted the decision to be reviewed. This was confirmed in writing on the same day. The Claimant did not appeal.[76]The Claimant was certified as unfit to work from 7 to 14 September 2015 for “neck pain, migraines, stress related symptoms”. On 16 September the Claimant was absent sick and the reason given was “GP follow up and assessment.” On 18 September (Friday) she arrived at work at 12.57 and the reason given was “accommodation issue”.[77]The Claimant was on annual leave from 21 September 2015 to 6 October 2015. On the Claimant’s return to work on 7 October Mr Al-Ali met with the Claimant. He had hoped that the adjustments that they had made at the end of June would have led to an improvement in her attendance and her performance. However, this had not materialised. In that period (a little over three months) the Claimant had had sixteen days’ sickness absence, had arrived late on four occasions and left early on one occasion. She had been given a verbal warning. He said to her that she had previously given 200% to the job but was now only giving 30% and asked her what was wrong. She had been unhappy in the Medical Department and had been moved to a different department but things had not improved. The London Office was under pressure from Kuwait in respect of dealing with training and Ms Awad needed the Claimant’s presence and support to meet her job requirements and deadlines. The Claimant said that she was feeling better after her rest and that she needed a bit of time but she was improving and would soon be fully at work. She assured him that things would improve.[78]At a staff meeting on 15 October Mr Al-Ali emphasized to all staff the importance of following procedures in respect of late arrivals and notification of sickness absence. These were not directed at the Claimant but at all employees because it was felt that there was not proper adherence to the procedures. Until then staff had been permitted to arrive up to 15 minutes late (known as the “grace period”). He said that going forward employees could only take advantage of this three times a month. Any late arrival after the third one each month would lead to deduction form the employee’s wages.[79]On 21 and 22 October the Claimant was absent sick and the reason given was “sickness (vomiting, nausea, dizziness, tummy ache”).[80]On 23 October Ms Awad sent Dr Al-Takrait an email which was copied to Mr Al-Ali. She said that the Claimant’s continual absence was affecting the work flow of her department and that she could not rely on the Claimant to complete any task. She said that she had to work overtime to complete the tasks that she had given the Claimant because there were deadlines for those tasks. She said that at the beginning of that week she had given the Claimant three relatively easy tasks to complete that should have been completed in one day. Ms Awad had completed one task because it was urgent and the other two had still not been completed. She spent a lot of her time checking whether the Claimant had completed her tasks and finding someone else to whom she could allocate the tasks which she had not completed.[81]On 26 October Mr Al-Ali asked Ms Awad to refer the Claimant to occupational health for a medical assessment. He also asked her to contact Ian Causer and to ask him to attend a meeting to discuss the Claimant’s situation.[82]On 28 October the Claimant went to see her GP and later that morning sent Ms Awad a sick note and a letter from her doctor. The sick note certified her as unfit to work for three weeks because of “stress related symptoms due to work situation, anxiety and depression”. In the letter the doctor said that he understood that it had been made very difficult for the Claimant to attend appointments with her GP for investigations. He said that that had put her under extreme stress and pressure and that all efforts should be made to ensure that she could attend appointments as that would help her recovery.[83]On 16 November the Claimant submitted a further medical certificate stating that she was unfit to work for a further one month for the same reasons.[84]The Claimant’s fixed-term contract was due to expire on 1 December 2015. Under the Respondent’s procedure Mr Al-Ali had to get the approval of his line manager in Kuwait (the DCEO of Administration and Finance) to terminate the employment of any employee in the London office. On 18 November 2015 he sent him an email to seek his approval to terminate the employment of the Claimant who he said had been on sick leave for a long time. He attached to the email a chart that showed the Claimant’s sickness absence in 2015. The chart showed that the Claimant had been absent sick for 116 days that year. He said that she had been complaining about work stress and depression for more than a year and, although her working hours had been reduced, she continued to have sick leave. She had recently submitted a sick note for a further four weeks. He said that he had discussed the matter with Dr Al-Takrait and the company’s lawyer and they had all agreed to terminate her contract “due to her long sick leaves”(sic). His line manager gave his approval.[85]On 19 November Mr Al-Ali sent the Claimant a letter to notify her of a meeting on 23 November at which they would consider whether to terminate her employment and to give her an opportunity to attend that meeting. She was given the right to be accompanied by Mr Causer or a work colleague. It was made clear to her that the meeting would proceed on 23 November no matter what and that if she did not wish to attend she could submit written representations. The letter was also sent by email and WhatsApp.[86]The Claimant responded on the following day. She said that she would be happy to meet with him but that she and Mr Causer were not available on 23 November but could meet with him on 26 November. Mr Al-Ali responded that he would not be available after 23 November because of his work commitments and that he was travelling abroad on the evening of 26 November. He reiterated that she could make any points that she wanted to make in writing. The failure to postpone the meeting was, no doubt, influenced by the fact that a delay of two days would have led to the Claimant acquiring the requisite length of service to have the right not to be unfairly dismissed.[87]On 23 November 2015 Mr Al-Ali wrote to the Claimant terminating her employment without notice with effect from that date. She was paid one month’s salary in lieu of notice. He said that the Respondent would like to make a gesture on an ex gratia basis and said that he would be happy to meet to discuss matters with her sometime in January. The Claimant asked for written reasons for the termination of her employment. Mr Al-Ali responded that she was not entitled to written reasons but repeated his offer to meet with her in January to discuss the matter further. The Claimant did not take up that offer. Expert Evidence[88]Dr Britton saw all the medical evidence which the Tribunal had before it and the Claimant’s witness statement but did not examine the Claimant. His evidence was that migraine is a common condition affecting almost 20 per cent of women. It is a clinical diagnosis based on the history of an episodic headache lasting 4 to 72 hours associated with nausea, vomiting and sensitivity to light, sound and smells, sometimes preceded by a positive visual disturbance lasting about 20 minutes. The average patient with migraine has 1.5 migraines per month or around 20 attacks per year. Migraine is a life-long condition. The severity of migraines is variable. Some patients may require hospital treatment but for the majority attacks can be managed with appropriate analgesics and if necessary prophylactic medication. A typically average migraine sufferer, if at work, could not carry out typical work activities. The best thing to do during a migraine attack is to get into bed in a dark room. The Claimant was given a diagnosis of migraine at the age of 16. Her migraines did not appear to have been more severe than the average individual who lives with migraine. When she had a migraine she would be limited in what she could do in the same way as the average migraine sufferer. The available medical evidence did not suggest that her migraine was the cause of substantial disability between April 2013 and 23 November 2015. Conclusions Disability – migraine
Conclusions
[89]We first considered whether between April 2013 and November 2015 the Claimant was disabled as a result of being a migraine sufferer. It was accepted by the Respondent that she had a physical impairment. The issue for us was whether the migraine had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. We concluded from the evidence in Dr Scott’s report, the Claimant’s GP’s report in 2008 and the evidence of Dr Britton that when the Claimant had a migraine attack she had a throbbing headache associated with nausea and photophobia, she could not carry out typical work activities, her cognitive functions were markedly reduced and she required bed rest in a dark room. Those adverse effects on her normal day-to-day activities were not minor or trivial and were, therefore, “substantial”.[90]We then considered whether those adverse effects were long-term. In doing so, we took into account the following findings of fact. The Claimant was diagnosed with migraine at the age of 16. Migraine is a life-long condition. The Claimant had migraine attacks in the latter half of 2008 and certain adjustments were made because of her migraine while she was at university between 2008 and 2010. The Claimant did not consult her GP in connection with migraine from February 2013 to 29 May 2014. The Claimant did not have any sickness absence because of migraine from 16 April 2013 to 29 May 2014. The Claimant was not on any migraine medication during that period and took paracetamol. All the evidence indicates that between February 2013 and 29 May 2014 she got symptoms intermittently and that they were very mild.[91]By 29 May 2014 the symptoms were getting stronger and she saw her GP to get medication to alleviate the symptoms. In June 2014 the Claimant complained that the light from the computer screen was causing her to have migraines. In the rest of the year the Claimant had two further days’ sickness absence because of migraines. She visited her GP once again in connection with migraine – on 26 August 2014. In 2015 the Claimant was absent sick because of migraine attacks on the following dates – 14 and 14 January, 9 and 10 March, 25-28 August 2015 and was certified as unfit to work from 7 to 14 September because of neck pain, migraines and stress related symptoms. It is clear from that that in 2015 the frequency and severity of the Claimant’s migraine attacks increased.[92]The substantial adverse effects of the migraine occurred sporadically but had recurred for a period over 12 months and were likely to continue recurring. In those circumstances they are to be treated as continuing and we concluded that they were long-term within the meaning of Schedule 1, paragraph 2(1) and (2) of the Equality Act 2010 and that the Claimant was disabled by reason of her migraines during the relevant period. Disability-related harassment[93]We considered first the only complaint of disability-related harassment that was presented in time, because if that complaint was not made out the others would be out of time and we would only consider them if it was just and equitable to do so. That was the complaint relating to what Mr Al-Ali said at the meeting on 7 October 2015. We did not consider that in isolation but in the context of all our findings of fact, including in relation to the other complaints of disability-related harassment.[94]We concluded that the conversation which Mr A-Ali had with the Claimant on that day was a perfectly reasonable and legitimate conversation for a manager to have had had with an employee in those circumstances. In spite of adjustments recently having been made to alleviate pressure on the Claimant and thereby improve her health, she continued to have poor attendance. It was reasonable for him to inquire as to what the cause of the problem was and whether it was likely to continue. Those matters had to be addressed in the Claimant’s best interests and in the interests of the Respondent. The Claimant might not have liked him raising those matters but it could not be said, having regard to all the circumstances and looking at the matter objectively, that his doing so had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. We, therefore, concluded that there was no disability-related harassment of the Claimant at that meeting. To conclude otherwise would mean that no manager could ever discuss sickness absence with a disabled employee.[95]We then considered whether it would be just and equitable to consider the other complaints of disability-related harassment notwithstanding that they were not presented in time. The delay in respect of those complaints is considerable – the latest ones occurred almost a year before the presentation of the claim and the earlier ones nearly two years before the presentation of the claim. No explanation was provided why those complaints were not presented in time. The Claimant has not put forward any evidence or arguments as to why it would be just and equitable to consider them. In those circumstances, we concluded that it would not be just and equitable to consider them.[96]In case we are wrong in that conclusion, we set out very briefly what we would have concluded had we considered those matters. We have not found that that Dr Al-Tarkait made the comment which the Claimant alleged that he made in February 2014. The Claimant was not in her performance appraisal “reproached” for her absences for medical reasons; she was informed that her performance had been affected by her attendance. That could not amount to disability-related harassment. She was not asked to provide a medical report that she was suffering from migraine attacks. Dr Al-Tarkait did not say that women were sensitive but made a remark about the women in the team taking sick leave for trivial reasons where as he came to work in spite of his serious disabilities. That could not amount to disability-related harassment of the Claimant.[97]It was not in dispute that Dr Al-Tarkait said, in the presence of others, that the Claimant should not a move a pile of invoices because she would go off sick if she did. We accept that that was said in a sarcastic manner and was a jibe at the Claimant’s frequent sickness absence. Since the beginning of that year the Claimant had had 20 days’ sickness absence. Four of those days were for migraines. The remaining 16 had nothing to do with migraine or depression. We accept that that comment was unwanted conduct and that the Claimant was very upset by it. It was not related to disability but to the extent of her sickness absence, the majority of which was not related to either of her disabilities. Although it was a joke at her expense, we do not consider that a reasonable person would have considered it to have the effect of violating his/her dignity or creating an intimidating, hostile, degrading, humiliating or offensive for him/her. Taking into account the Claimant’s perception, the circumstances of the case and the reaction of a reasonable person, we would have concluded that that did not have the proscribed effect. Failure to make reasonable adjustments[98]We considered first the complaint about the Respondent’s practice of rotating staff which the Claimant says put her at a substantial disadvantage when she was moved to the UK region in January 2015. It appears that the adjustments which the Claimant claims ought to have been made were either not to have moved to that role in January 2015 or to have moved her out of it before 26 June 2015. The failure to make adjustments, therefore, occurred in January 2015 or at the latest on 25 June 2015. Either way, the claim was not presented in time. Nothing has been said to persuade us that it would be just and equitable to consider it. We concluded that we did not have jurisdiction to consider it.[99]In case we are wrong in that conclusion we set out very briefly what we would have concluded in respect of that matter. At that stage the Respondent did not know that the Claimant was disabled by reason of depression and could not reasonably have been expected to know that. The Claimant had not told them that that she suffered from depression and she had had no sickness absence for depression. Furthermore, the Respondent did not know and could not reasonably have been expected to know that the move to the UK region would place her at a substantial disadvantage in comparison with person who were not disabled. The Claimant never objected to the move. She never gave the Respondent any reasons why it would be difficult for her to work in the UK region. There was no evidence before us that it did put her at a substantial disadvantage because of her depression. As far as migraine was concerned, it knew from the GP’s letter of 29 May 2014 that she got symptoms intermittently and had started on migraine treatment on that date. It also knew that the light from the computer screen cause her to have migraines and that she required an anti-glare screen. She had four days’ sickness absence for migraines in 2014. We do not consider that on the basis of that evidence the Respondent could reasonably have been expected to know that the Claimant was disabled by reason of migraines. More importantly, it did not know and could not reasonably have been expected to know that the move to the UK region would place her at a substantial disadvantage because of her migraines. The Claimant never gave them any information to that effect. Moreover, there was no evidence before us that it did put the Claimant at a substantial disadvantage as a migraine sufferer. Hade we considered that claim, we would have concluded for all those reasons that it was not well-founded.[100]We then considered the complaint of failure to make reasonable adjustments in respect of being required to work in the office. The basis of this claim was identified at the preliminary hearing on 29 April 2016 as being that a senior had told the Claimant that she could not work wholly or partly from home and that there was no point asking at any higher level. However, the Claimant did not give any evidence to that effect or, indeed, any evidence on the issue at all. There was, therefore, no evidence that the Respondent applied such a provision, criterion or practice. There was no evidence that working wholly in the office put the Claimant at a substantial disadvantage in comparison with persons who were not disabled or that the Respondent knew or could reasonably have been expected to know that it did. The matter of working from home was never raised by the Claimant with any of her seniors. It is not clear when the Claimant says the failure to make this reasonable adjustment took place. Depending on that the claim might well not have been presented in time. For all the above reasons, we concluded that this claim was not well-founded. The dismissal[101]We finally considered the two complaints that related to the Claimant’s dismissal – the complaint of failure to make reasonable adjustments and the section 15 complaint. We considered first whether at this stage the Respondent knew or could reasonably have been expected to know that the Claimant was disabled by reason of depression and/or migraines.[102]In respect of the migraines the Respondent knew that the Claimant had suffered from migraines since her teens, got symptoms intermittently and that she had started on migraine treatment on 29 May 2014. It also knew that the light from the computer screen cause her to have migraines and that she required an anti-glare screen. She had four days’ sickness absence for migraines in 2014. She had fourteen days’ sickness absence for migraines in 2015. In June 2015 the Claimant’s GP had advised that certain adjustments needed to be made because of the Claimant’s migraines to facilitate her return to work. These included giving her a quiet room in which to work to reduce the risk and frequency of migraines. We accept that the Respondent did not know that the Claimant was disabled as a result of her migraines. It had not been advised that that was the case either by the Claimant or by any medical person. However, it could on the basis of that evidence have been reasonably expected to know that she was disabled by reason of the migraines. It knew that the Claimant had been suffering from migraines for over a year and that her migraine attacks were on occasions severe enough to make it impossible for her to attend work. In those circumstances, it ought to have considered the possibility of her being disabled as a result of it and sought advice on it. It never sought Dr Hamami’s advice on the issue.[103]As far as the depression is concerned, the Respondent knew on 1 April 2015 that the Claimant suffered from depressive anxiety and that her medication had recently been increased and that she was waiting to start psychological counselling. It knew that she was off sick from 7 April to 25 June 2015 because of depression. At the end of that period her doctor recommended that certain adjustments be made because of her depression to facilitate her return to work. She was absent sick with depression again from 28 October to 23 November when her employment was terminated. Mr Al-Ali’s view on 18 November was that she had been complaining about work stress and depression for more than a year. We accept that the Respondent did not know that the Claimant was disabled by reason of depression but again we concluded that, on the basis of the evidence before it, had it addressed the issue, it could reasonably have been expected to know that she was disabled by reason of the depression.[104]We considered the section 15 claim first. The unfavourable treatment complained of was the Claimant’s dismissal. We concluded that the reason for her dismissal was the amount of sickness absence that she had had in her two years of employment, the impact that that had upon her performance and on her colleagues and that there was no indication that her attendance was likely to improve. We then considered whether that was “something arising in consequence of her disability”. The answer to that is that part of the Claimant’s sickness absence arose in consequence of her disability. The Claimant had 34 days’ sickness absence in 2014, four of which were for migraine and none were for depression. In 2015, at the time when the decision to dismiss was made, the Claimant had had 116 days’ sickness absence. The majority of those were for depression and/or migraine, although there was a significant number of absences (over 20 days) that had nothing to do with the Claimant’s disability. We, therefore, concluded that the Claimant was treated unfavourably because of something that arose partly, but not wholly, in consequence of her disability. That, in our view, was sufficient for it to satisfy the first limb of section 15 of the Equality Act 2010.[105]Before considering whether dismissal at that time was a proportionate means of achieving a legitimate aim, we consider the complaint of failure to make reasonable adjustments. We accepted that the Respondent applied a PCP that failure to achieve a certain level of attendance by an employee could lead to termination of his/her employment. We also accepted that that PCP put the Claimant at a substantial disadvantage in comparison with persons who were not disabled as she was more likely to have sickness absences and was, thus, more at risk. The real issue was whether there were any steps which the Respondent could reasonably have taken to avoid that disadvantage. The only step proposed by the Claimant was that the Respondent should have kept her on longer. The Claimant did not state how much longer and what it would have achieved. The Claimant was on a fixed-term contract that was due to expire on 1 December 2015. If the Respondent had decided to wait longer it would have had to issue her with a fresh contract. At that stage she was certified as unfit to work until 15 December 2015. There was no evidence before the Respondent that she would in fact return to work on that date and that, if she did, her attendance level would improve. The Claimant had been absent sick for almost half the year. The Respondent’s London office was a small office and such significant absence impacted upon the office’s ability to deliver the service which it was meant to provide. It also had an impact on the Claimant’s colleagues whose workload was increased as a result. For all those reasons we did not consider that keeping the Claimant on longer would have been a reasonable adjustment. It would not have achieved anything. It would not have alleviated the disadvantage.[106]It was not suggested on behalf of the Claimant that all her disability-related sickness absence should have been disregarded. We would not have considered that to be a reasonable adjustment either. The Claimant’s disability-related sickness absence was lengthy (it amounted to almost 100 days over two years), the periods of disability-related sickness absence were getting longer and there was no indication that that was not going to remain the pattern going forward. The Respondent had made adjustments to try to improve the Claimant’s attendance but to no avail. Her absences had an impact upon delivery of service and her colleagues. Nor would we have considered disregarding part of the disability-related sickness as a reasonable adjustment. There was no rational basis for deciding how much should be disregarded and it would not in any event have avoided the disadvantage.[107]We then considered whether dismissal at that time was the proportionate means of achieving a legitimate aim. The legitimate aim relied upon by the Respondent was the delivery by the London office of the services for which it existed. The Claimant’s lengthy and frequent sickness absences from the office, which arose largely but not wholly from her disability, had a significant impact upon the delivery of service by the office and upon the Claimant’s colleagues who had to take on her work. The Respondent had extended the Claimant’s contract at the end of 2014 notwithstanding her sickness absence that year in the hope that things would improve. Instead, the Claimant’s attendance had deteriorated. The Respondent had made adjustments to try to ameliorate the Claimant’s attendance by moving her from the medical department to the less onerous administrative department. That had not had the desired effect. The London office was a small office and there were no other roles to which the Claimant could be assigned. The small London office could not continue to accommodate the employment of an employee who was absent for almost half the year. The Respondent needed to be free to employ someone else to that role who could fulfil the requirements of the role. For all those reasons we were satisfied that dismissal of the Claimant in November 2015 was an appropriate means of achieving the legitimate and reasonably necessary in order to do so.