Employment Judge H ClarkIn person for claimantMs A Carse - Counsel for respondentDate 6 February 2020
JUDGMENT
FOLLOWING OPEN PRELIMINARY HEARING The judgment of the Tribunal is that prior to 18 October 2017 the Claimant suffered from the following disabilities:[1]Fibromyalgia with effect from March 2015.[2]Vitamin B12 deficiency/pernicious anaemia with effect from the start of her employment in September 2014.[3]TMD with effect from April 2016.[4]Sciatica with effect from December 2015.
REASONS
[1]By a Claim Form presented on 3 April 2018 various claims of disability discrimination were made against the Respondent. These were all denied in a Response Form dated 9 July 2018. In light of the agreed list of issues, the most recent allegation of disability discrimination is dated 17 October 2017 (requiring the Claimant to attend the office for long hours from July 2015 to October 2017). The Claimant has been absent from work on sick leave since 18 October 2017.[2]This hearing was listed to deal consider, as a preliminary issue, whether the appellant suffered from 9 different disabilities (identified at a case management hearing on 21 September 2018) and further, as to the Respondent’s state of knowledge of those disabilities. Following the provision of medical evidence, on 5 October 2018, the Respondent conceded that fibromyalgia did constitute a disability for the purposes of the Equality Act 2010 at the material time. The Respondent asserted that the remaining alleged disabilities could be dealt with at the full merits hearing, but set out its position on each one and that the preliminary hearing was not necessary. The Claimant objected to any postponement of the preliminary hearing. The Respondent wrote to the Tribunal on the 19 November explaining that the Claimant had served an additional bundle on them that day and repeated the application for a postponement. Regional Employment Judge Potter refused the Respondent’s application to postpone the preliminary hearing on 19 November 2018.[3]At the outset of the hearing, the Respondent made it clear that there would be insufficient time for the Tribunal to deal with all the matters listed and that it was in evidential difficulty due to the late service of additional documents by the Claimant. No case management orders had been made in relation to the preparations for the preliminary hearing, so there was no witness statement from the Claimant specifically addressing the impact her claimed disabilities had on her life. The Claimant explained that some of documents in her additional bundle had already been disclosed and the remainder were just printouts from the internet about some of the medical conditions from which she suffers.[4]The Claimant had provided a written witness statement running to 50 pages for the Case Management Preliminary Hearing. That statement dealt with matters which were relevant to the issues in the full merits hearing as well as the preliminary issue. Ms Carse accepted that she had notice of the contents of this witness statement and would be in a position to crossexamine on the Claimant’s disabled status, but not the respondent’s knowledge of her asserted disabilities. The latter would be more manageably dealt with at the full merits hearing, when all the Respondent’s witnesses were available and the number of potential disabilities had been clarified. The Claimant invited the Tribunal to deal with both issues. Given the breadth of the issues, including the number of asserted disabilities, there seemed no realistic prospect of fairly determining both disabled status and the respondent’s knowledge in relation to each disability in the time allocated, accordingly the Tribunal considered the former only. The question of the Respondent’s knowledge of disabilities will be left to the full merits hearing.[5]A discussion was held with the Claimant as to what adjustments she might need for the preliminary hearing. She confirmed that there were no adjustments required for a one-day hearing, but for the full merits hearing she would need to electronically record the hearing rather than take notes herself. There was further discussion about these adjustments at the adjourned hearing. The Respondent objected to the suggestion that the Claimant should be permitted to record the proceedings herself. It had serious reservations about the data protection implications of the Claimant’s having control over a recording. It was explained to the parties that the hearing might, in any event, be recorded by the Tribunal by the time of the full merits hearing. However, if that did not prove to be the case, the Claimant will use voice recognition software in the Tribunal to convert speech to text to enable her to have a record of the proceedings. It is anticipated that she will obtain a microphone in order that all the speech in the hearing can be captured.[6]As there were 9 different disabilities to consider, in consultation with the parties, it was agreed that they would be dealt with separately with evidence being taken and then submissions made on each disability. This would enable all the evidence and submissions to be together in relation to each separate disability, which would make the evidence easier to manage. The parties would also be able to make global submissions at the end of the evidence, if they wished to do so.[7]The disabilities on which the Claimant relies are as follows:7.1 Pernicious anaemia/Vitamin B12 deficiency from the start of her employment.7.2 Fibromyalgia from March 2015;7.3 Dry eyes leading to defective vision from the start of her employment;7.4 TMD, causing, amongst other things, bad headaches from April 2016;7.5 Sicca symptoms from March 2015;7.6 PVD in the left eye from the start of her employment;7.7 Carpal tunnel syndrome/tendonitis in hands from April 2017;7.8 Depression from April 2017;7.9 Sciatica from December 2015;
The Law
[8]The law that the Tribunal has to apply is contained in the Equality Act 2010 section 6 which defines a disability as a “physical or mental impairment,” which has a “substantial and long-term adverse effect on [the Claimant’s] ability to carry out normal day-to-day activities;” The burden lies on the Claimant to prove that she is disabled.[9]Schedule 1 of the 2010 Act provides that the effect of an impairment is longterm if(a) It has lasted for at least 12 months,(b) It is likely to last for at least 12 months, or(c) It is likely to last for the rest of the life of the person affected. 2(2) 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. The effect of medical treatment is ignored in the assessment of whether an impairment has a substantial effect on the ability of a person to carry out normal day to day activities (section 5 of Schedule 1), albeit the use of spectacles or content lenses is excluded from this provision.[10]Appendix 1 of the Equality and Human Rights Commission Code of Practice on Employment 2011 issued pursuant to the Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment and Equal Pay) Order 2011 SI 2011/857 provides further guidance to assist Tribunals in interpreting the law in this area. The guidance makes clear that physical or mental impairments covers sensory impairments, such as those affecting sight. “There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment, not the cause.” (paragraph 7). The Tribunal should bear in mind that some people might naturally underplay the effect of their symptoms.[11]The Code further provides that, “A substantial adverse effect is something which is more than minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.” (paragraph 8). Account should be taken of where a person avoids doing something because of pain or fatigue or where someone can perform normal day to day activities, but suffer pain or fatigue when doing so. Examples of normal day to day activities are given in the guidance to include, walking, driving, using public transport, cooking, eating, lifting, carrying everyday objects, typing, writing, going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self.”
Factual Background
[12]The Claimant was employed by the Respondent and its predecessor from 1 September 2014 to work in the Employment Advisor Group. She is Association of Tax Technician qualified. The Respondent provides accountancy and tax services to a wide range of private and public sector clients. The Claimant contends that she has been required to work excessive hours by the Respondent and that her line manager has made unsubstantiated allegations against her. This has led to the Claimant’s absence for work with anxiety, stress and depression.[13]Following 3 weeks’ sick leave in December 2016, the Claimant stated that her fibromyalgia had affected her recovery time. The Respondent commissioned a report from the Claimant’s GP, which advised that the Claimant had jaw pain, which contributed to headaches and fibromyalgia (generalised muscular aches and pains).[14]The Respondent later commissioned two Occupational Health Reports. The first was dated 6 June 2016 from Dr Padraic Ryan which noted that the Claimant had been diagnosed with “pernicious anaemia” in 2009 and that, “the most recent medical evidence available confirms that she has fibromyalgia, vitamin B deficiency, vitamin D deficiency, and a history of cataract surgery with left vitreous detachment, which is now stable. In addition, she has recent signs and symptoms that might well be related to connective tissue disease, but this is not been confirmed. As no clear underlying medical complaint has been offered to Ms Kalia, who has been placed on symptomatic treatment and her current medication includes mild pain relief, vitamin supplementation and acid reflux reduction. Following a series of investigations in relationship to pain in her neck area, she has recently been assessed by an ENT surgeon, who confirmed that she had temporal mandibular joint disease and requires pain management. Surgical intervention is not advised. In addition to her recent diagnosis of an ENT complaint, she has mechanical back pain that has been assessed by MRI scan on at least three occasions, the most recent being in early 2016, where she was advised that she was a nonsurgical candidate and required regular exercise. I understand that her back pain has significantly improved with enhanced mobility. ….On a day-to-day basis , Ms Kalia has discomfort in her neck and lower back, her sleep pattern is disrupted, and she finds it difficult to work in an open plan office as increased levels of noise are associated with significant headaches.” The report concluded that the underlying medical reasons for her attendance record included multiple medical appointments for rheumatological complaints. At the time of the report Dr Ryan considered the Claimant fit to attend work.[15]A letter from the Claimant’s GP dated 16 February 2017 to the respondent explained that the Claimant suffered with temporomandibular joint pain (jaw pain) and fibromyalgia. The letter outlines that, “the symptoms she attributes to her fibromyalgia include swelling of the hands, headaches, anxiety, muscular and joint pain, fatigue and occasionally lack of concentration. She suffers regularly from headaches which affect concentration, especially in a noisy environment, muscular and joint pains slow her down, cause fatigue and contribute toward her headaches. Her temporomandibular joint pains also contribute to headaches and difficulty/pain when twisting the neck and head. According to our records she currently has regular vitamin B12 injections, which otherwise do not usually cause any side effects. She has also had gabapentin for pain in the past and was prescribed omeprazole in December 2016.”[16]On 15 June 2017 a further Occupational Health Report from Dr Kevin Bailey, Consultant Occupational Physician, noted that the Claimant was suffering from fibromyalgia, low vitamin B12 levels and that in the past she had a frozen shoulder, whiplash, low vitamin D and a condition affecting her eyes. “She experiences fatigue on a daily basis and this may be related not only to her fibromyalgia, but also to the low vitamin B12 levels. Her sleep has been disturbed some time. She develops headaches and a reduction in concentration and an increase in her fatigue when she is exposed to high levels of ambient noise.” Dr Bailey concluded that fibromyalgia and low vitamin B12 were her most dominant health conditions. He also noted that one of the pain relief medications she was taking was causing her headaches. Dr Bailey recommended a discussion was had about the Claimant’s workload, it reported that the Claimant would like more administrative support, including voice activated software, to work from home a further half or one day a week.[17]The Respondent had concerns about the Claimant’s performance and, on 16 October 2017, the Claimant was invited to a meeting to discuss two allegations of potential dishonesty. The Claimant’s explanation about one of the allegations was accepted by the Respondent, but the other matter remains outstanding. It has not been possible to conclude the disciplinary proceedings in light of the Claimant’s absence from work on sick leave since 18 October 2017.[18]The Claimant has been absent from work since 18 October 2017 with variously stress, anxiety and depression. A report from her GP for the Respondent dated 12 December 2017 explained that the claimant had been seen “on a number of occasions since February this year with regards to low mood and stress caused by her ongoing work-related issues. Overall she has suffered with anxiety for at least a year now. It is impossible to give you a definitive time period for which she will be affected by her medical ailments. They all have a variable timeframe depending on the triggers. For example, her stress/anxiety may well improve once the ongoing employment issues are resolved. Similarly symptoms of TMJ dysfunction and fibromyalgia may also improve once the stress and anxiety are better managed. However typically these conditions can sometimes affect some individuals long-term, with fluctuations in severity. Her fibromyalgia has caused her to suffer with headaches, fatigue, night sweats and musculoskeletal pains, however she manages the symptoms and does not feel that they are the reason for her inability to work currently. Indeed her anxiety, depression and work-related stress are the main reasons for not being able to work, including difficulty with reading and often rereading work, which she says leads to delays and errors as well as response time and quality of work. Her anxiety she says, leads to chest pains and an increased heart rate. She states that she becomes more nervous when she has to work with a particular colleague, which causes her significant stress. Mrs Kalia currently receives sertraline, an antidepressant, from is the only regular prescribed medication. She has also received promethaxine, which aids sleep.”[19]One of the difficulties faced by the Tribunal in determining whether each condition or set of symptoms amounted to a distinct disability as the Claimant suggests, was the nature of the expert evidence. Whilst the Claimant has adduced a plethora of medical evidence in the form of GP notes and correspondence passing between the various health professionals treating her, this evidence (understandably) does not address some of the considerations which are relevant to the Tribunal’s assessment of the Claimant’s disabled status. This is particularly so in light of the need to disregard the effects of successful medication in determining whether a particular condition amounts to a disability. Further, in relation to some of the Claimant’s conditions, there is an overlap between her symptoms (eg. headaches variously caused by fibromyalgia, jaw pain, as a side effect of pain relief medication and ongoing investigations of an unknown cause (which subsequently seems to have been diagnosed as migraine). Both fibromyalgia and vitamin B12 deficiency are said to cause night sweats. There is very limited medical evidence which relates specifically to the Claimant to assist the Tribunal in determining from what symptoms the Claimant would suffer if her various conditions were not treated – this is particularly the case with B12 deficiency and dry eyes, since both conditions appear to be largely controlled by medication.[20]Given the wide range of conditions from which the Claimant suffers, it would have been difficult to obtain a global medical report, which spans so many different medical disciplines. Providing reports for the Tribunal in relation to each of her conditions would also have been expensive and contributed to the delays in the litigation. The Tribunal and the parties must keep in mind the overriding objective in the Tribunal Rules to deal with issues in a proportionate manner. Establishing disability relies to some extent on medical evidence, but also a Claimant’s own evidence as to the effect a condition has on their day to day activities. As the Guidance makes clear, it is the effect rather than the cause of the impairment which is relevant, however, where that effect is challenged by the Respondent, it can assist the Tribunal to understand the medical basis for a claimed set of symptoms.[21]The Respondent has highlighted the fact that the Claimant did not mention some of the conditions which she claims to amount to disabilities in the course of the Occupational Health assessments in 2016 and 2017. Further, the Claimant challenges the contents of those Occupational Health assessments, notwithstanding the fact that she was provided with them in advance of their being given to the Respondent and did not seek to correct them. Included in this is B12 deficiency. I accept as a general proposition that the Claimant is more likely to mention her more serious and in lay terms “disabling” conditions to Occupational Health. Similarly, conditions for which she has not taken time off work are likely also to be having a lower impact on her day to day activities. However, I also take into account that memory fog or forgetting things is a symptom of fibromyalgia and that conditions which are being successfully treated are less likely to be in the forefront of the Claimant’s concerns during an Occupational Health assessment.[22]During her long-term absence from work, the Claimant has undergone a number of medical investigations and has been diagnosed with carpal tunnel syndrome, tendinitis and migraine. She is also being treated by a physiotherapist for upper neck pain with referred neuro pain down both arms, which is suspected to be caused by a C5/C6 disc prolapse. There is no doubt that the Claimant’s various health challenges have cumulatively had a substantial adverse effect on her day to day activities, both in terms of her mobility and ability to concentrate on tasks such as reading and writing. The question for this Tribunal is whether some of the Claimant’s individual conditions have such an effect as she contends. The Claimant’s asserted disabilities are considered in turn: Fibromyalgia[23]The Respondent accepts that this condition amounts to a disability for the purposes of the Equality Act 2010. The Claimant explained in her Claim Form that this results in night sweats, muscular pains and pains in her bones, swollen hands, headaches which affect her concentration and means she cannot tolerate noise and more generally, memory fog. The latter means that the Claimant is prone to forget names, dates and chronologies. The condition also causes chronic fatigue, chest pains, difficulty in sleeping, numbness and tingling in her hands, arms, feet and legs and irritable bowel syndrome. The Claimant’s GP confirmed in his report that fibromyalgia “causes generalised muscular aches and pains” and was a long-term condition which caused headaches which affect concentration, muscular aches and pains, causes fatigue and contribute toward headaches. Pernicious Anaemia/B12 deficiency[24]The Claimant explained in her evidence that her diagnosis of “pernicious anaemia” means that she cannot absorb vitamin B12. She has adduced evidence (in the form of her GP records), demonstrating that she was diagnosed with this condition on 19 August 2008. In any event, it is agreed that she informed the Respondent about her vitamin B12 deficiency at the start of her employment in September 2014. The GP’s report dated 16 February 2017, confirmed that the Claimant has regular vitamin B12 injections which otherwise “do not usually cause any side effects”. The medical evidence does not suggest that the Claimant has symptoms arising from her B12 deficiency, but as she has B12 injections every 3 months, it may simply be that this is because the injections supress such symptoms. The symptoms which caused the Claimant to seek the diagnosis, were dizziness and night sweats, which improved after the injections started. However, night sweats are also said to be a symptom of fibromyalgia.[25]In determining whether a vitamin B12 deficiency amounts to a disability, I have to disregard the injections the Claimant receives. There is no medical evidence confirming what symptoms the Claimant would suffer without treatment (and, therefore, what effect it would have on the Claimant’s day to day activities). The only evidence there is comes from the Claimant. Given the complexity of the Claimant’s medical conditions and the overlap between symptoms, this is less than satisfactory, given the Claimant is not medically qualified. If the Claimant did not have these injections, she says she would get progressively more tired, breathless, dizzy, tired and would not be able to climb stairs. She says she would die within 2 or 3 years.[26]Although there is no medical evidence specifically addressing the issue, the Claimant has provided evidence from the Pernicious Anaemia Society which lists the common physical symptoms of the condition, which include the following symptoms which the Claimant suggests she has: tiredness/lethargy, waking up tired, shortage of breath, unaccountable sudden diarrhoea, swollen tongue, and feeling “foggy.” The Respondent suggests that the Claimant has not been diagnosed with Pernicious Anaemia. However, the leaflet provided explains that, “pernicious anaemia is not caused by a malfunction of blood but a faulty digestive process that leads to a lack of B12 that results in a problem with red blood cells in a patient’s blood. If the gastric panetal cells do not produce the intrinsic factor, then the B12 cannot be absorbed and the red blood cells will not be able to do their job properly.” This explanation is consistent with that given by the Claimant in her evidence and with her regular receipt of vitamin B12 injections. Further, the first Occupational Health Report from Blossoms Health Care dated 6 June 2016 refers to her diagnosis of “pernicious anaemia” in 2009. Were this diagnosis doubtful, I would have expected the author, Dr Ryan, to have queried it in his report. In the circumstances, I am satisfied that the Claimant’s vitamin B12 deficiency is liable to cause some of the symptoms listed in the Pernicious Anaemia Society leaflet.[27]The Respondent points to the fact that the Occupational Health letter of 6 June 2016 does not record any symptoms arising from Vitamin B12 deficiency and the Claimant accepts that there is an overlap between the symptoms of fibromyalgia and those of B12 deficiency. As the latter is effectively managed by regular B12 injections, on a day to day basis it is not necessarily symptomatic. Given the effect of the condition has to be judged without medication, the fact that the Claimant did not mention her B12 deficiency to Occupational Health is of limited probative value. There would have been no particular need for the Claimant to describe symptoms of a condition she has which are, by and large, controlled by medication and, as she pointed out, has learned to live with.[28]Although there is an overlap between the apparent symptoms of B12 deficiency and fibromyalgia (which led to the delay in diagnosing the latter), I am satisfied if the Claimant did not receive her injections of B12 every 3 months, she would suffer from a level of fatigue, which would have a more than minor or trivial effect on most of her day to day activities, including her mobility and ability to concentrate. As such, it constitutes a disability for the purposes of the 2010 Act and has done so throughout the Claimant’s employment by the Respondent. Whilst no finding is made as to the life limiting nature of the condition, I have no difficulty in accepting that there would be serious consequences for the Claimant’s health were her regular vitamin B12 injections to stop. Dry Eyes[29]The Claimant says she has suffered from dry eyes since she was 18. Whilst she accepts that she has never taken any time of work due to dry eyes, absence from work is of limited relevance in assessing substantial adverse effect. She asserts that her colleagues would have seen her putting in eye drops at work. The Occupational Health reports do not record symptoms of dry eyes, although the Claimant planned to mention them. In evidence she suggested that she was not given enough time with the Occupational Health doctor to enable her to fully explain all the health conditions from which she suffers. However, in crossexamination the Claimant accepted that her first Occupational Health examination (in 2016) lasted around an hour and that she had received copies of both reports before they were released to her employer. It is, therefore, reasonable to infer that if there was a serious omission from either report, the Claimant would have raised it either with the Occupational Health provider or the Respondent. The Claimant is a sophisticated and educated litigant, who would have been able to challenge material errors or omissions in the Occupational Health report, if not at the time, certainly having been given an opportunity to see the report in advance of its provision to the Respondent.[30]Although the Claimant has had prescriptions in the past for dry eyes, it was cheaper to buy products which relieved symptoms commercially, so this is what the Claimant does. I accept the Claimant’s evidence that she has lived with dry eyes since she was 18 and the condition is, therefore, a long term one. The Claimant described the symptoms of dry eyes as a feeling of dryness, grittiness or soreness which gets worse throughout the day. She says it can cause a burning feeling and red eyes and her eyelids are prone to stick together at night causing pain. If the lubrication is not used, the Claimant says her vision goes blurred and she gets tired and has headaches. However, there is no medical or ophthalmic evidence as to how the Claimant’s vision would be affected by dry eyes if the over the counter medication was not used.[31]Given the very limited medical evidence beyond the fact that the Claimant suffers from dry eyes and administers eye drops to combat this, I cannot be satisfied that the effect of the untreated condition would have a substantial long term adverse effect on the Claimant’s vision. Having a feeling or soreness or grittiness is clearly unpleasant, but I must be satisfied that there is a substantial adverse effect on the Claimant’s ability, for instance, to read or see obstacles when she is moving. Whilst it is appreciated that the application of eye drops will cause a temporary blurring of vision, such medical information as has been provided by the Claimant concerning her eyesight described her vision after eye surgery to her left eye on 20 April 2018 as “good”. Whilst it is appreciated that this was in the context of her eye surgery, such a statement is not consistent with the Claimant’s having regularly blurred vision due to dry eyes as she claims. PVD[32]The Claimant was diagnosed with PVD (posterior vitreous detachment) in her left eye in 2014 when she attended King Edward V11 hospital casualty department, having experienced seeing floaters (a letter of Mr Jasvir Singh Grewal dated 21 July 2018 confirms this). The condition is explained in a leaflet produced by the Claimant by the Royal Berkshire Hospital – the vitreous jelly in the eye turns to liquid, which means it can move away from the retina and floaters or flashing lights can be caused. In April 2018 the Claimant had a retinal detachment repair at Windsor Hospital and a letter from her consultant ophthalmologist, Mr Grewal, dated 21 July 2018 noted that she had “good vision” following this procedure. He also suggested that photophobia in her left eye might be a result of her left pupil being slightly larger than her right one.[33]The literature produced by the Claimant described PVD as “very common and although irritating, it is not a serious condition.” Two out of three people over the age of 60 get PVD and “in the majority, this does not cause any serious problems. In a small minority there can be a retinal tear/detached retina which can be treated with laser surgery.” The Respondent submits that there is no medical evidence which expressly identifies that the Claimant’s retinal detachment was caused by PVD. Whilst this is the case, the fact that the literature provided to the Claimant identified retinal tear or detachment as a possible consequence of PVD lends support to a connection. Whilst a retinal detachment is clearly a serious condition, it is demonstrably treatable with surgery and is temporary in nature.[34]Whilst I accept there might remain some risk of another retinal tear or detachment (as the literature identifies) and this is an understandable concern for the Claimant, the long term condition of PVD is suffered by the majority of the older population. It is described in the literature as common, irritating but not serious. The medical evidence suggests that the Claimant’s vision was “good” following her laser surgery. Against this background, I am not satisfied that PVD has a substantial long-term adverse effect on the Claimant’s ability to perform activities such as reading or other activities for which sight is needed (such as walking). This condition sits more comfortably as a “limitation which does not go beyond the normal differences in ability which might exist among people” as contemplated in the Guidance. Temporomandibular Disorder (TMD)[35]The Claimant was diagnosed with TMD in April 2016 and says this condition gives her jaw pain, ear ache, difficulty in concentrating, headaches and ringing noises. The cause of the condition is a misalignment of the jaw, which leads to teeth grinding at night, which is then symptomatic in the day time. The Occupational Health report dated 6 June 2016 makes reference to this diagnosis and the resultant need for pain management. The Claimant wears a mouth guard to stop her grinding her teeth at night which was fitted in July 2017 and this has helped to alleviate the symptoms. The Claimant explained in her evidence that the headaches caused by TMD are different in nature from those which are caused by her vitamin B12 deficiency or prescribed medication (both of which have also given her headaches). The TMD headaches are in both her head and jaw and would last for a few days. Paracetamol would not be sufficient to stem them.[36]The medical evidence from the Claimant’s GP dated 16 February 2017 confirms that TMD is a long-term condition, which contributed to the Claimant’s headaches and difficulty/pain when twisting her neck and head. The condition is also referred to in the later report dated 12 December 2017 (as TMJ), suggesting that the symptoms might improve once the Claimant’s stress and anxiety are better managed, but, “typically these conditions can sometimes affect some individuals long term, with fluctuations in severity.” I am, therefore, satisfied that the Claimant has suffered from TMD since 2016. Her symptoms have been alleviated to some extent by the wearing of a night guard at night, to prevent her grinding her teeth. That treatment should be disregarded in considering whether TMD amounts to a disability for the purposes of the 2010 Act. The primary symptom, as confirmed by the Claimant’s GP is headaches and pain when twisting her neck and head. The Claimant suffers from headaches for a variety of reasons (and has more recently been diagnosed with migraines, which have partly been caused by analgesic over use). It may not be possible to isolate the cause of each and every one of the Claimant’s headaches, but she is undoubtedly prone to them and I accept her evidence that generally she is aware from the site of the headache, whether it is caused by TMD. I accept that headaches of a duration and intensity which cannot be alleviated by pain relief are likely to substantially affect the Cliamant’s ability to concentrate on work-related tasks such as reading and processing information. As such, I am satisfied that untreated TMD amounts to a disability for the purposes of the 2010 Act. Sicca Symptoms[37]The Claimant explained that Sicca is a lack of fluids in the body (apart from blood), ie. dry eyes, dry sinuses and problems with saliva glands. The Respondent accepts (from having done its own internet research) that “Sicca Syndrome” is an auto-immune disease known as Sjogren syndrome. This has been ruled out in relation to the Claimant. The medical evidence concerning “sicca symptoms” takes the form of letters from a Consultant Rheumatologist, Dr Simona Gindea dated 14 May 2015 and 17 July 2015. In the first, Dr Gindea diagnoses: “Sicca symptoms – most likely benign sialadenitis and dacryoadenitis; less likely related to connective tissue disease.” This followed a radiological scan of the Claimant’s salivary glands on 15 April 2015. The other diagnoses in the letter were for Vitamin B12 deficiency, history of low vitamin D, whiplash injury in 2006 and left frozen shoulder. Specifically, in relation to sicca symptoms the investigations had excluded connective tissue disease, but noted “She is having submandibular swelling and pain and dry eyes since she was a teenager, worse during night, early morning.” The second letter confirmed that “conclusion is that Mrs Kalia is having most likely benign sialadenitis and dacryoadenitis. She is having episodes of submandibular swelling and pain “on and off”. An ultrasound of salivary glands done on 25th June was normal.” In October 2015, Dr Adler wrote to the Claimant’s GP outlining the Claimant’s various complex symptoms, including a “very dry mouth and requires water to swallow food.” Further, “She recently saw Dr Gindea who extensively investigated her for an underlying connective tissue disorder and really has found absolutely no evidence of it. This includes an ultrasound of the neck which showed no inflammation of any salivary glands.” He then proceeded to recommend an MRI scan in relation to pain in her left lower back and buttock area radiating towards the hip.[38]The Claimant originally suggested in her evidence that she does not suffer from “primary sicca”, but from “secondary sicca” and that her dry eyes are sicca symptoms and she has her salivary glands checked annually to ensure they are not cancerous. She confirmed that she does not have Sjogren syndrome. On further questioning, it transpired that the Claimant has not been diagnosed with “secondary Sicca”, but this was simply a term she had picked up from a rheumatologist. The symptoms with which the Claimant was concerned were a dry mouth, dry nasal passage and dry eyes. She explained that the benign sialadenitis relates to her salivary glands and dacryonadenitis to tear ducts.[39]The Claimant added in oral evidence that she had reduced fluid in her muscles, which were a “sicca symptom”. Whilst the Tribunal accepts that the Claimant suffers from muscular pain due to fibromyalgia, the medical evidence does not support a separate and distinct condition arising from a lack of fluid in her muscles unrelated to fibromyalgia.[40]The Claimant’s evidence was confusing about what she describes as the disability of sicca symptoms. The medical evidence (without expert interpretation) has not clarified the position. There is no doubt that the Claimant suffers from dry eyes (dealt with above) and complains of a dry mouth (which causes her to need to drink with food) and sometimes of swollen salivary glands. These symptoms were investigated in 2015, but the summaries of her medical conditions provided by her GP to the Respondent on 16 February 2017 and 12 December 2007 makes no mention of on-going “sicca symptoms”. The Occupational Health report refers to “a condition affecting her eyes”, which I infer is dry eyes, but there is no reference to a dry mouth or swollen salivary glands. Whilst I bear in mind that the focus must be on the effect not the cause of symptoms, the Claimant deals with the adverse effect of a dry mouth by drinking water with food. This does not, in my judgment, amount to a substantial adverse effect on her ability to eat.[41]Whilst I appreciate that the Claimant might have forgotten to mention these symptoms in her Occupational Health examinations in 2016 and 2017 for reasons connected to her memory difficulties arising from fibromyalgia, the fact that sicca symptoms were not highlighted by the Claimant’s GP reports, taken together with the inconclusive medical evidence, means that I am not satisfied that the Claimant suffers from a distinct disability of “sicca symptoms” which have had a substantial and long-term effect on her day to day activities. If it is the case that some or all of these symptoms relate to fibromyalgia, it is open to the Claimant to obtain medical evidence to that effect (in the event that the symptoms are separately relevant to her individual discrimination claims). Sciatica[42]The Claimant suggests that she has suffered from sciatica since September 2015, when she first noticed a pain at the base of her spine going through the back of her left leg with some numbness in her left foot. The pain affects her mobility. In November 2015 she had an MRI scan and had a follow up consultation with Dr Matthew Adler to interpret her scan. Dr Adler wrote to the Claimant’s GP on 21 December 2015 explaining that “The MRI of the SI joints was normal but she does have a degenerate L5/S1 disc. There was no definite root compression. I have referred her to Apple Physiotherapy for some core strengthening exercises and physiotherapy. I hope the symptoms settle but if they do not, I would ask one of my spinal colleagues to decide whether or not she would benefit from an L5 root block.” Although the letter itself does not appear to offer a diagnosis of “sciatica”, in correspondence with the Respondent’s Solicitor dated 1 November 2018, the Claimant says she was informed by Dr Adler that she has pressure on the sciatic nerve. In her oral evidence, the Claimant says she still has pain and numbness down her left leg and she is planning to go back for physiotherapy and pain management in relation to it. The Claimant has made an application for a blue badge and has included the condition “sciatica” on her application.[43]In a letter from Dr Daniel Fishman, Consultant Rheumatologist dated 15 September 2018, a diagnosis of sciatica was confirmed. The letter provided, “[the Claimant] has a number of pain-related symptoms including cervical degeneration, prolapsed intervertebral disc and sciatica, tinnitus and TMJ disfunction.” Whilst it is unfortunate that Dr Adler’s initial report does not use the word “sciatica”, the subsequent evidence, taken to together with the Claimant’s recollection of what she was told by Dr Adler, suggests that such a diagnosis was made. There is no particular benefit to the Claimant in mislabelling her back pain “sciatica” as opposed to “mechanical back pain” or a “degenerate disc”. In general terms I am satisfied that the Claimant was diagnosed with sciatica or a related back condition which substantially affected her mobility in December 2015.[44]Sciatica was not a condition which was mentioned in either Occupational Health report, although the June 2016 report made reference to “mechanical back pain”, which had significantly improved with enhanced mobility. This was in the context of the Claimant’s having had three scans, the most recent of which was interpreted by Dr Adler, who diagnosed sciatica (at least verbally). The Claimant cannot remember if she mentioned sciatica at either Occupational Health examination and submits that the Occupational Health Doctors had limited time with her, so that no negative inferences should be drawn from the fact that sciatica was not covered in either report. The Claimant has undoubtedly suffered numerous health challenges over recent years and the range and variety of medical investigations she has undergone would make it difficult for even a reasonably thorough Occupational Health assessment to cover all them. This is particularly so having regard to the Claimant’s conceded disability, which is accepted to affect her memory. However, the 2016 assessment took place within 7 months of the MRI scan and treatment for the Claimant’s back pain and the condition was clearly discussed and a conclusion reached that the pain had significantly improved. As at June 2016 sciatica/back pain, therefore, does not appear have had a significant impact on the Claimant’s day to day activities as her physiotherapy/increased mobility had relieved the symptoms.[45]The Claimant invited the Tribunal to view an MRI scan which had been taken of her back in November 2015 to demonstrate where her spine is squashed. The Tribunal explained that it did not have the expertise to interpret a scan. The Claimant clearly suffered from a painful back problem in late 2015 which affected her mobility in a substantial way, however, the medical evidence expressed a hope that the symptoms would “settle” and, if not, an L5 root block would be advised. This procedure has not proved necessary and the Occupational Health Assessment in June 2016 suggests that there had been an improvement in the symptoms at that stage. However, the Claimant’s own evidence and the recent letter of Dr Fishman outlined above, suggests that her back pain has since returned with some force. Whilst I am not satisfied that the Claimant’s sciatica/back pain has consistently had a substantial adverse effect on her day to day activities since 2015, it appears to be recurring in nature and, therefore, satisfies the test in Schedule 1, paragraph 2(2). Depression[46]The Claimant was first diagnosed with depression following her absence from work in October 2017, although her GP’s letter dated 12 December 2017 suggests that the Claimant first reported symptoms of low mood and stress in February 2017. With the benefit of hindsight, the Claimant considers she was suffering from depression from April 2017. Although she says she felt suicidal, she did not speak to her GP about this, but mentioned it to a colleague. She explained that she did not tell her GP as she never saw the same Doctor and did not want to admit there was a problem. She did not mention her low mood in the second Occupational Health assessment in June 2017, but first raised it with her GP on 16 or 17 September 2017. Throughout September, 2017 the Claimant reports suffering from headaches, chronic fatigue and had nightmares about her workload. On 18 October 2017 the Claimant visited her GP and was signed off with work related stress.[47]The GP’s letter dated 12 December 2017 states, “overall, [the Claimant] has suffered with anxiety for at least a year now”. The main reason for the Claimant’s long-term absence from work has been “anxiety, depression and workrelated stress.” I accept the Claimant’s oral evidence to the effect that she has been prescribed the anti-depressant sertraline since mid-November 2017, although the prescription is dated 30 November 2017. In December 2017, the Claimant’s GP suggested her depression would be likely to continue for the next few months, but could be 1 – 2 years. I accept that the Claimant is still absent from work by reason of depression (alongside other conditions). The Respondent conceded that the Claimant’s 3 December 2018 fit note refers to “anxiety with depression” amongst other things as the reason for her unfitness to work from 30 November 2018 to 28 February 2019. It has therefore, turned out to be a longterm condition as the GP suggested it might and one which has been sufficiently serious to render her unfit to work.[48]The prescription of sertraline in mid-November indicates that the Claimant’s GP has taken a more serious view of her symptoms. Depression was added to “work-related stress” on the fit note and appears to be a firm diagnosis from then on. The Claimant describes her symptoms of depression as not wanting to talk to people or leave her home and having nightmares about her work. Such symptoms quite clearly have a substantial impact on her day to day activities given she is inhibited from human interaction, whether socially, at work or to perform tasks which require her to leave her home and talk to strangers (such as shopping).[49]The Claimant invites me to find that she has been disabled by reason of depression since April 2017, notwithstanding the fact that she was not diagnosed with the condition until November 2017. It is acknowledged that there are a number of good reasons why patients do not seek medical help for mental illness (and there may well be such reasons in this case as the Claimant outlined), however, the Tribunal does not have medical expertise and it would be going beyond the bounds of judicial notice or the assessment of surrounding evidence to conclude the Claimant suffered from undiagnosed depression from April 2017. There is medical evidence that she was suffering from anxiety and low mood in early 2017. Anxiety and stress are conditions which go hand in hand with depression, but they are distinct diagnoses. The fact that the Claimant reported “low mood” to her GP might suggest the beginning of symptoms of depression, but not to such an extent that a diagnosis was made, that treatment was deemed necessary or the Claimant’s ability to work was compromised. In these circumstances, I am not satisfied that the Claimant was suffering from depressive symptoms which had a substantial adverse effect on her day to day activities in early 2017.[50]Whilst the Claimant asserts she reported feeling suicidal at work in June or July 2017 and on 20 September 2017, at the time she thought that this was due to medication she was taking. Whilst not wishing to minimise the seriousness of the Claimant’s assertion, the Tribunal is not qualified to assess the medical significance of it in the context of a diagnosis of depression, particularly against the background of the Claimant’s dissatisfaction with her working conditions and the apparently difficult working relationship she had with one of her colleagues. Accordingly, whilst the Claimant might well now qualify as a disabled person by reason of her depressive illness, when she was still attending work in early October 2017, she did not. Carpal Tunnel Syndrome/Tendonitis[51]The Claimant was diagnosed with carpal tunnel syndrome in both her wrists by Dr Rick Seah in March 2018. His report of 14 March 2018 refers and indicates she received a cortisone injection in relation to her right wrist. Although the Claimant says she raised question of wrist pain with her GP in December 2016, she was advised that this was caused by fibromyalgia. The Claimant is clearly of the view that she was suffering from carpal tunnel syndrome in 2016 and it affected her ability to lift files in the work place. She says the shooting pains are different from the constant ache of fibromyalgia and that the wrist is not a fibromyalgia point. Her GP in December 2016 clearly disagreed with her. I consider it unlikely that the Claimant would not have given a proper description of the type or site of the pain she was suffering in 2016 to her GP, such that her GP misattributed the Claimant’s symptoms to fibromyalgia in 2016. I cannot, therefore, be satisfied that the Claimant was suffering from undiagnosed carpal tunnel syndrome/tendonitis in 2016 or 2017, until she was prompted to seek a referral from her GP for a private appointment in early 2018. As the last act of discrimination alleged by the Claimant in these proceedings occurred in October 2017, it is not necessary for the Tribunal to determine whether the Claimant is currently disabled by reason of carpal tunnel syndrome.
The Evidence
[52]At the beginning of the next day of the hearing, the judge asked the claimant whether or not she had decided to pursue her application to amend. The claimant stated that she had decided not to pursue it. Whilst she did not produce anything to the tribunal setting out what her proposed amendments had - 14 - been, she said that she noted that one of the elements of her proposed application was already in the existing list of issues before this tribunal in any case. Therefore, she did not wish to pursue the application. The Law Direct disability discrimination
The Law
[53]Under section 13(1) of the Equality Act 2010 (“EqA”), a person(a) (A) discriminates against another person(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. This is commonly referred to as direct discrimination.[54]Disability is a protected characteristic in relation to direct discrimination.[55]For the purposes of the comparison required in relation to direct discrimination between B and an actual or hypothetical comparator, there must be no material difference between the circumstances relating to B and the comparator. Reasonable adjustments[56]The law relating to the duty to make reasonable adjustments is set out principally in the EqA at s.20-22 and Schedule 8. The EqA imposes a duty on employers to make reasonable adjustments in certain circumstances in connection with any of three requirements. The requirement relevant in this case is the requirement, where a provision criterion or practice (“PCP”) of an employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. There are therefore three elements to such a complaint: the PCP; the substantial disadvantage; and the reasonable adjustment or adjustments.[57]A failure to comply with such a requirement is a failure to comply with the duty to make reasonable adjustments. If the employer fails to comply with that duty in relation to a disabled person, the employer discriminates against that person. However, the employer is not subject to a duty to make reasonable adjustments if it 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.[58]The burden of proof rests initially on the employee to prove on the balance of probabilities facts from which we could decide, in the absence of any other explanation, that the employer discriminated against the employee. It is not enough merely for the employee to show a difference in treatment and the existence of the protected characteristic; there must be something more. If the employee does so, the burden of proof shifts to the employer to show that on the balance of probabilities it did not so discriminate against the employee. If the employer is unable to do so, we must hold that the discrimination did occur. - 15 - However, it is not necessary to apply the burden of proof referred to if the tribunal is able to make clear findings either way. Time extensions and continuing acts[59]The EqA provides that a complaint under it may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the employment tribunal thinks just and equitable. That time limit is extended in relation to periods of time spent in ACAS early conciliation.[60]The EqA further provides that conduct extending over a period is to be treated as done at the end of the period and that failure to do something is to be treated as occurring when the person in question decided on it.[61]In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA, the Court of Appeal stated that, in determining whether there was “an act extending over a period”, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as the indicia of “an act extending over a period”. The burden is on the claimant to prove, either by direct evidence or by inference from primary facts, that alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.[62]As to whether it is just and equitable to extend time, it is for the claimant to persuade the tribunal that it is just and equitable to do so and the exercise of the discretion is thus the exception rather than the rule. There is no presumption that time will be extended, see Robertson v Bexley Community Centre [2003] IRLR 434 CA.[63]In relation to time limits and reasonable adjustments, the case of Humphreys v Chevler Packaging Limited EAT 0224/06 confirmed that a failure to act is an omission and that time begins to run when an employer decides not to make the reasonable adjustment in question.[64]In the subsequent case of Kingston-upon-Hull City Council v Matuszowicz [2009] ICR 1170, CA, the Court of Appeal decided, in analysing Section 123(4) of the EqA, that the legislation provides two alternatives for defining the point when the person is to be taken as having decided upon the omission for the purposes of reasonable adjustments complaints. The first of these, which is when the person acts inconsistently with the omitted act, is fairly self-explanatory. The second option, however, requires an enquiry that is by no means straightforward. It pre-supposes that the person in question has carried on for a time without doing anything inconsistent with doing the omitted act, and it then requires consideration of the period within which he might reasonably have been - 16 - expected to do the omitted act if it was to be done. In terms of the duty to make reasonable adjustments, that seems to require an enquiry as to when, if the employer had been acting reasonably, it would have made the reasonable adjustment. That is not at all the same as enquiring whether the employer did in fact decide upon doing it at that time. Assessment of Evidence[65]Before turning to our main findings of fact, we make the following findings about the reliability and credibility of the evidence of the witnesses from whom we heard. The Claimant[66]In her evidence, the claimant frequently went off on a tangent, seeking to include in answers to questions information which she clearly wanted to give rather than concentrating on answering the question directly. In addition, she had to be reminded on a number of occasions to answer the question that was put to her.[67]A considerable number of the assertions which the claimant made, both in her witness statement and in oral evidence, and which formed the basis of her suggesting that employees of the respondent had discriminated against her or had knowledge of her disabilities, were not reflected in the contemporaneous documentation. That is surprising, given how extensive and thorough that documentation is (emails from managers and between managers and the claimant, notes of meetings etc). The claimant repeatedly referred to alleged conversations which she said took place but of which there is no record.[68]The explanations she gave were frequently complex and hard to follow, in contrast to how clear the situation appeared to be from what was set out in the extensive contemporaneous documentation. This was particularly so when she sought to address points put to her which were, because of what the contemporaneous documentation set out, difficult for her reasonably to contradict.[69]Furthermore, on a number of occasions she gave explanations which appeared not to reflect what actually happened. For example, in one passage of her oral evidence, the judge sought to get clarity on what the claimant’s position was in relation to the events behind issues 6(d & e); her answer was (typically) unnecessarily laboured and complex but, eventually, the judge was through further questions able to get a clear answer from her of what her position was; Mr McLaughlin then took her to a contemporaneous email which she had written which contradicted what she had just said to the judge.[70]Another example is one of the two disciplinary charges against her which formed the basis of issue 6(l). The claimant was accused of being dishonest in an email written to a client about the status of an HMRC application. We will come to the relevant emails in our findings of fact but, for these purposes, when one reads them it is clear that she is seeking to mislead the client. Most of the - 17 - subsequent lengthy disciplinary hearing before Ms May involved the claimant obfuscating, going off the point and failing to give any clarity when this was put to her (just as she did in her evidence before us when faced with difficult points to answer) rather than admitting what is obvious from the documents.[71]Some of the most obvious occasions when the claimant was being untruthful to us came from the questioning of her in relation to the jurisdictional issues about why she did not put her claim in earlier. Her explanation was that, from the period of time when she went long-term sick on 18 October 2017 until at least when she contacted ACAS on 18 January 2018, she was mentally not in a good place, so much so that she could not and did not leave the house for 3-4 months; had all her doctor’s appointments over the phone; did not even go into her garden; and put the bins out at night because she didn’t want to go out. However, her GP report of 12 December 2017, right in the middle of that period, states “As stated to me by Mrs Kalia, if she maintained working hours at 30 hrs/week with appropriate workload appropriate to her role, she sees no reason why she should not be able to perform the duties”. What she told her doctor at that time is therefore completely in contrast to the picture she sought to paint in her oral evidence before the tribunal.[72]In addition, Ms Ihnatowicz took the claimant to her medical records and pointed out that these seemed to indicate that, in contrast to her doctor’s appointments being held over the phone, she did attend her doctor’s. The claimant had been caught out. She then simply changed her evidence. She admitted that she did attend the doctor’s. She said that her Mum picked her up and took her to the GP; and to the pharmacist to pick up medication; and to do the shopping.[73]The claimant told us in her evidence that she did not get any legal advice over this period; she stated merely that she had in early November 2017 sought legal insurance cover from her insurer and that she was told that she was ineligible. Mr McLaughlin then took the claimant to page 182 of the claimant’s own medical bundle where, in her medical records, it states “issues at work with her partner. involved solicitors now. almost feels like a load taken off since dealing with solicitors”. The claimant had been caught out again. She then went on to suggest that she thought this was a reference to the insurers’ solicitors and that she had a telephone conversation with her insurer’s legal team helpline, that this was the first time she had been able to talk to someone about matters and that it was a weight off her shoulders and felt like offloading. When asked how she knew the person on the helpline was a solicitor, she said that it was just the “language I used” and it was their legal team. When asked whether they gave her advice, she said that they just listened and that she sent them the papers and that was all; but that they did not give any legal advice. This is against the background of her insurer, in a letter of 17 November 2017 to the claimant, reminding her that, even though it could not provide legal insurance cover for her, she was “still entitled to advice from our legal helpline”. Again, the claimant’s evidence shifted once she had been caught out and an explanation lacking in credibility was given. In addition, the same letter from the insurer referred to the insurer being “unable to consider your preferred solicitors at that time as court - 18 - proceedings had not been issued”; leaving the insurer’s legal advice line aside, the claimant had clearly identified solicitors of her own.[74]The claimant also sought to suggest that she had only sought to get advice via the insurer on the disciplinary proceedings so as to resolve matters internally and not on the substance of the claim which she has now brought. However, the documentation from the insurer makes reference to issues which form part of the claim she is now bringing; furthermore, that documentation is clearly about the prospect of her bringing an employment tribunal claim, for example the letter of 17 November 2017 from the insurer already referred to, which states “we note from the information provided to date that you are seeking cover under your Admiral legal expenses insurance policy, in order to pursue a claim arising from an employment dispute”. That documentation also contains other references to claims and to the employment tribunal. The claimant was clearly contemplating an employment tribunal claim at that point; what she told us (that she did not contemplate making a claim until 18 January 2018) was therefore simply not true.[75]The claimant has sought to suggest that any defects in her evidence are because of the “memory fog” which is one of the potential effects of her fibromyalgia and vitamin B12 deficiency. However, we noted throughout her evidence that the claimant was perfectly capable of speaking clearly and without any memory issues when she wanted to; it was only when it came to issues which were of great difficulty for her in her case that the sort of untruths which we have referred to above came out. Furthermore, this was also the experience of Ms May in terms of the claimant’s approach at the disciplinary hearing; she too felt that, when the claimant wanted to, she could be absolutely clear. We do not, therefore, consider that any “memory fog” impacted upon the sort of examples set out above; the claimant was simply not telling the truth and seeking to mislead the tribunal.[76]We should also note that the examples given above are indeed only examples and that they are typical of the manner of the claimant’s evidence throughout.[77]For these reasons, we hesitate to accept anything that the claimant has told us except where it is backed up by contemporaneous documentary evidence. The Respondents’ Witnesses[78]The respondents’ witnesses were all clear in their responses, despite facing the difficulty of being asked questions by the claimant which were often vague or poorly structured. They did not deviate from their position when questioned. They were consistent throughout. Contrary to what the claimant seemed to suggest during her cross-examination of them, confirming in response to questions that they did not have a recollection of the minutiae of details of, for example, alleged conversations from a long time ago is not suspicious; it is entirely understandable. Importantly, the evidence which they gave, both in their witness statements and orally, was consistent, both internally, with the evidence - 19 - of the other respondents’ witnesses, and, importantly, with the extensive contemporaneous documentation. Without exception, we found them to be credible witnesses.[79]In addition, we note that the respondent’s witnesses were able to admit when they got things wrong and to take decisions which were favourable to the claimant even when they didn’t need to. Examples include the fact that, when Ms Ball discovered that the claimant had indeed booked holiday on 27 May 2016, she acknowledged this and immediately apologised to the claimant for her mistake; Ms Ball pushing for and obtaining the award to the claimant of a bonus for 2016 even though many other partners outside the department did not think that the claimant deserved one; and Ms May’s decision at the disciplinary hearing to drop one of the two allegations of dishonesty against the claimant when she could have quite easily preferred Ms Ball’s evidence over that of the claimant and found that the claimant had indeed been dishonest; in short, she gave the claimant the benefit of the doubt.[80]Therefore, where there is a conflict of evidence between the respondents’ witnesses and the claimant with no contemporaneous documentation to evidence what happened, we prefer the evidence of the respondents’ witnesses to that of the claimant.
Findings of Fact
[81]We make the following findings of fact. In doing so, we do not repeat all of the evidence, even where it is disputed, but confine our findings to those necessary to determine the agreed issues.[82]The respondent is a leading audit, tax, advisory and risk firm with a national presence. It is an independent member of Crowe Global, the eighth largest accounting network in the world. It advises businesses of all sizes, professional practices, non-profit organisations, pension funds and private clients. It is highly regulated and owes fiduciary duties to its clients.[83]The respondent has offices in London. One of the departments within the respondent’s tax practice which is based there is the Employers Advisory Group (“EAG”); its focus is advice on employment related taxes.[84]The Head of the EAG is, and was at all times material to this claim, Ms Susan Ball. Although there have been some changes in personnel over the last few years, there were, as at 1 April 2019, 15 fee earners in the EAG in addition to Ms Ball. In order of seniority these were: 3 Partners (including Ms Ball), 1 Director, 1 Senior Manager (the claimant); 3 Assistant Managers; 1 Senior Executive; 1 Executive; 2 Associates; 3 Assistants; as well as a dedicated administrative assistant and full-time secretarial support.[85]The claimant commenced employment with the respondent on 1 September 2014. Prior to her position being confirmed, she had been interviewed by Ms Ball and others. With effect from 1 October 2015, the claimant - 20 - was promoted to Senior Manager. She therefore held a senior position within the EAG.[86]At the start of her employment, the claimant completed a “New Starter Form”, on which she noted that she had a disability, namely “Vitamin B12 deficiency”. She told Ms Ball that she had to go for an injection every 13 weeks and Ms Ball duly notified the respondent’s HR Department of this by email. Other than the need to have an injection, the claimant did not raise anything else about the impact of her condition. Ms Ball agreed with the claimant that, as the claimant lived in Langley, Slough, on the day she had an injection she could work from home or travel to the respondent’s Reading office rather than come into London.[87]The claimant’s employment contract, which she signed on 11 July 2014, contains the following clause: “Hours of Work 14. Your normal hours of work will be 9:30 am to 5:30 pm, Monday to Friday, with a break of one hour for lunch i.e. a 35 hour working week. The firm reserves the right to vary the hours worked and your starting and finishing times. You may also be required to work such additional hours as may be necessary for the full and effective performance of your duties. You will not be entitled to additional payments for, or time-off-in-lieu of, overtime.” The contract also contained a standard “opt out” from the 48 hour average working week under the Working Time Regulations 1998.[88]The evidence of the respondent’s witnesses, which we accept, is that there was not a culture of working long hours at the respondent, particularly in comparison with the big four accountancy firms, of which many of the respondent’s witnesses had direct experience. However, as Ms Harwood said in evidence, it was not unusual for an employer at a senior level to do one or more additional hours per day beyond the core hours set out in that employee’s contract.[89]The claimant has complained about being required regularly to work more than her contractual hours. However, we have not seen any evidence of anyone at the respondent instructing the claimant to do this. By contrast, we have seen numerous examples of the respondent seeking to ensure that the claimant did not work long hours. These include: in her July 2015 appraisal, the appraisal records that the claimant should take care to manage her work life balance and not let it get out of control; in August 2015, in the claimant’s business case for promotion, the claimant acknowledged that she need to improve her time management skills; in March 2016, Ms Ball asked the claimant to spread work around and delegate; in May 2016, Ms Ball said that she was concerned about the claimant’s work levels and asked the claimant to highlight work that could be passed to others; in August/September 2017, Ms Harwood asked the claimant to delegate and to say when she needed support and assistance; and on 4 October 2017, Ms Ball and Ms Harwood met the claimant and discussed getting on top of her workload (although the claimant said that there was not much to catch up with). - 21 -[90]As to whether the claimant actually worked greatly in excess of her core contractual hours, her timesheets do not demonstrate this. We accept that the timesheets may not be the full picture, as we have seen evidence that the claimant was not good at completing them efficiently or in a timely manner and indeed actively told managers that she did not see the point of recording nonchargeable time. However, the timesheets are one indication.[91]The claimant’s main evidence behind her assertion that she was working considerably in excess of her core contractual hours was emails which she sent very early in the day and very late in the evening. We have seen a number of these. We accept that these do not prove that she was working long hours on a regular basis (for example, there are often gaps in her sending emails earlier on those days where there are late emails, so it is possible that she was not working or not working efficiently earlier). However, we do accept that the emails are an indicator that, at times, the claimant was working very early and very late and that, at times, she was working greatly in excess of her core contractual hours. Why she was doing so is a different matter.[92]We have seen a lot of evidence, both in the documentation and from the respondent’s witnesses, that the claimant simply worked in a very inefficient manner and was unable/unwilling to delegate. The claimant kept control of clients she was working for and did not delegate work which it was appropriate for someone of her seniority to delegate. Ms Lockwood, who was in a position to compare working first for the claimant and, subsequently, for Ms Lorraine Owens (a director in the EAG), gave compelling evidence in this respect. For example, the claimant would repeatedly seek redraft after redraft of a particular letter when working with Ms Lockwood, wasting time unnecessarily as a result, and this resulted in them working late. Ms Lockwood’s experience working for Ms Owens was quite the contrary.[93]The claimant has asserted that she was not provided with suitable staff to assist her during her employment. However, beyond her assertions (at the time and before this tribunal), we have not seen any evidence of this. There were changes in personnel over the years when the claimant was employed, as is the case in most organisations. However, the claimant could use, variously at various times in her employment, Ms Lockwood, two other assistant staff members in the EAG, corporate tax trainees and juniors, and could have passed certain types of work to others on a sideways basis. That support was available to her. The reality, however, was that the claimant was not good at delegating or passing out work and did not do so. In short, the support was there; however, the claimant did not avail herself of it.[94]Ms Lockwood had joined the respondent as a tax assistant on 1 December 2015 and at first worked predominantly with the claimant. However, her experience of working for the claimant was not a happy one; it is not necessary to go into all of the details, which are set out in her statement, save to say that she found working with the claimant difficult and unpleasant and “utterly demoralising and demotivating”, with the claimant’s attitude to her being patronising. She complained that the claimant would not pronounce her first - 22 - name correctly and would not allow her to take notes (even though Ms Lockwood was dyslexic and the notes assisted her in this respect). Therefore, because of the claimant, Ms Lockwood submitted her resignation on 26 February 2016. The respondent managed to persuade Ms Lockwood to change her mind (on the basis that she would in future work predominantly with Ms Owens). Ms Lockwood remains employed in the EAG today.[95]Serious concerns about the claimant had therefore been raised. Ms Ball and Ms Owens met the claimant on 7 March 2016. Ms Ball explained that Ms Lockwood had resigned and the reason she had given. She explained to the claimant that Ms Lockwood was dyslexic and therefore had a different way of learning and retaining information, which was to take contemporaneous notes. She also explained that they would be moving Ms Lockwood to Ms Owens.[96]When they discussed Ms Lockwood’s dyslexia, the claimant mentioned that she took notes herself as she had some memory issues too, connected to her health. She then said that she had health issues and noise on the floor could be a problem. She mentioned tinnitus, chronic fatigue, fibromyalgia and sciatica. Ms Ball did not know what this meant in practical terms and said that they needed to get her an occupational health referral so that Ms Ball could understand what effect the claimant’s health issues were having. Ms Ball immediately requested this from HR.[97]The claimant has asserted throughout her evidence that she told Ms Ball and others at the respondent about her various conditions and their symptoms in a variety of conversations throughout her employment. The respondent’s witnesses do not accept this. There are no contemporaneous documents backing up the claimant’s assertions. We do not, therefore, accept that the claimant did mention these things to Ms Ball or others at the respondent, save where we specifically make a finding, as in the paragraph above. Therefore, up until the meeting of 7 March 2016, all that the respondent knew in relation to the claimant’s disabilities was that she had vitamin B12 deficiency which required an injection every three months (but without knowing any details of how the claimant’s vitamin B12 deficiency might impact upon her otherwise).[98]The claimant was duly referred to occupational health. Occupational health produced a report, dated 6 June 2016. It included the following: “In 2009, she was diagnosed with pernicious anaemia and has been on medication by injection every three months since then. As a result of a failure to address the signs and symptoms related to pernicious anaemia, Ms Kalia has undergone a range of investigations and been assessed by a number of consultants. The most recent medical evidence available confirms that she has fibromyalgia, Vitamin B deficiency, Vitamin D deficiency, and a history of cataract surgery with left vitreous detachment, which is now stable.… Following a series of investigations in relationship to pain in her neck area, she has recently been assessed by an ENT surgeon, who confirmed that she had temporal mandibular joint disease and requires pain management. Surgical intervention is not advised. In addition to her recent diagnosis of an ENT complaint, she has mechanical back pain that has been assessed by MRI scan on at least three occasions, the most recent being in early 2016, where she was advised that she was a non-surgical candidate and required regular exercise. I understand that her back pain is significantly improved with enhanced mobility.… - 23 - On a day-to-day basis, Ms Kalia has discomfort in her neck and lower back, her sleep pattern is disrupted, and she finds it difficult to work in an open plan office as increased levels of noise are associated with significant headaches.… Ms Kalia would be regarded as fit to attend work. Within the work environment, as she finds it difficult to work in a noisy area, it would be helpful if consideration could be given to offer her a less busy part of your office or alternatively, the opportunity to use headphones to block out noise might be helpful.… There are no specific restrictions on her workplace capability. .…”[99]Two adjustments were therefore suggested by occupational health namely noise cancelling headphones and change of office location.[100]The claimant was offered noise cancelling headphones; however, the claimant did not want to use these. She said she was worried that she would not hear the phone.[101]The respondent’s office was an open plan office on one floor. There were some private offices to the side of the open plan section. At that time, the claimant was in a private office with another manager and not in the open plan part of the office. However, this was only ever intended to be a temporary situation and the respondent became ever more squeezed for space when it closed another local London office and the staff moved to the main office.[102]Ms Ball also agreed with the claimant that she could work from home one day a week, which was normally Wednesday. This pattern commenced on a trial basis on 4 July 2016; it duly became a permanent arrangement.[103]As time went on, the number of concerns about the claimant’s work gradually increased. We have seen a plethora of evidence in the bundle of examples of the claimant in particular failing to respond to clients and keep them informed. There are huge numbers of emails from clients chasing the claimant for her to do something or at least for an update on where things stood. The claimant frequently and repeatedly did not reply to these emails. As the claimant’s employment went on, concerns were raised by clients and by other partners at the respondent about the claimant’s quality of work in this respect. The claimant’s ability in this respect was in some cases so serious that clients threatened to stop instructing the respondent. One partner even questioned whether the claimant was being honest in her dealings with client/colleagues.[104]The claimant was off sick over a period from 18 November 2016 to 9 December 2016. The respondent and HR decided that they should ask for a medical report from the claimant’s GP which, with the claimant’s permission, they did. The letter from the claimant’s GP is dated 16 February 2017 and includes the following: “In addition to this, she suffers with temporomandibular joint pain (jaw pain) as well as a condition called fibromyalgia (which causes generalised muscular aches and pains), both of which are long-term conditions which we anticipate to remain stable. The symptoms she attributed to her fibromyalgia include swelling of the hands, headaches, anxiety, muscular and joint pain, fatigue and occasionally lack of concentration. - 24 - She suffers regularly from headaches which affect her concentration, especially in a noisy environment. Her muscular and joint pain slow her down, cause fatigue and contribute toward her headaches. Her temporomandibular joint pains also contribute to headaches and difficulty/pain when twisting the neck and head. According to our records she currently has regular vitamin B12 injections, which otherwise do not usually cause any side effects.… On further discussion with Mrs Kalia, she explained that the noisy environment at work causes difficulties for her, and would prefer to have the option of working from home instead.”[105]In March 2017, there was a change to the seating arrangements in the office. The claimant was placed in the open plan part of the office with the rest of the EAG team. The private offices were required for partners or other functions where privacy was essential. It was not, therefore, possible to give the claimant a private office. However, we accept the evidence of Ms Ball that the noise on the open floor is not rowdy or particularly loud and that, in fact, the EAG was located off to the side of the floor and this was quite a quiet area. We also accept her evidence that, in terms of noise levels, there can be even more noise in a confined private office when it is shared between two or three individuals, as was the case with the respondent’s offices, than on the open floor.[106]The respondent sought a further occupational health report. That further report (from a different occupational health provider) was provided and is dated 15 June 2017. It contains the following: “…she is suffering from fibromyalgia. She also has low vitamin B12 levels and requires an injection of B12 every 13 weeks.… Ms Kalia last saw her rheumatologist in 2015 and over the last three months has developed increasing joint pain in her hands, feet, ankles and neck. She experiences fatigue on a daily basis and this may be related not only to her fibromyalgia, but also to the low vitamin B12 levels. Her sleep has been disturbed for some time. She develops headaches and a reduction in concentration and an increase in fatigue when she is exposed to high levels of ambient noise. This is the case in the open plan office. Until July last year Ms Kalia was working in quieter offices with perhaps a maximum of three employees. She is now working in a relatively noisy open plan office with perhaps 35 employees. Since working from home one day a week she states her productivity has increased. ... Ms Kalia states her workload has increased recently because of a reduction in number of managers. I suggest this issue be discussed with her. She would like to have more support to help with administrative matters, for example help from another staff, consideration be given to technical support such as voice-activated software or other IT solutions. I recommend someone from the in-house IT department assesses whether voice-activated software and other IT strategies could help increase efficiency. If operationally feasible, I suggest consideration be given to her working from home a second day each week. If this is not possible then she would like to work longer days. She would then like to work her usual one day at home and also the half day. Ultimately this is a management decision, but it is likely to assist her in terms of her fatigue and productivity. … In my opinion she would benefit from consideration of additional administrative support which can be in the form of an employee helping her and/or technical assistance, perhaps voice-activated - 25 - software. If operationally feasible I suggest consideration be given to more time working from home. I also recommend discussion be held about her current workload. The main difficulty she has is concentrating in a noisy environment. … The most useful support would be to provide help with administrative tasks. This may take the form of an administrative assistant. I recommend consideration be given to voice-activated software as this is often faster than typing. She may also benefit from other information technology solutions.… All recommendations contained in this report are recommendations only and it is the responsibility and decision of the employer to decide what is and is not a reasonable adjustment. …”[107]During the months running up to the publication of this report, a number of staff had left the EAG. Whilst it was difficult to find replacement staff of the requisite quality in the prevailing economic climate, the respondent made efforts to do so and further staff were duly employed.[108]Following the report, the respondent checked whether it would be possible for the claimant to move back into a two-person office. However, it was not practicable as these needed to be reserved for partners or staff who worked on confidential matters.[109]The respondent also carried out a workstation assessment with the claimant on 30 June 2017; in other words, this assessment was done with the claimant’s input. This flagged that the claimant required a new chair and a headset to block out ambient noise from the air conditioning and photocopier. The claimant was duly provided with a higher level keyboard, wrist support and backrest. A suitable chair was ordered and obtained.[110]The claimant initially confirmed that she would like to take up the respondent’s offer of digital dictation software and noise reduction headphones. She was provided with the headphones. However, despite the respondent’s efforts, she did not engage with it in relation to agreeing the precise requirements for the sort of digital dictation software which would best assist her and ultimately, this was never finalised before she went off long-term sick on 18 October 2017.[111]The respondent has a clear desk policy. The respondent operates a paper-based filing system and members of the EAG are expected to return client files to a central filing range and not to leave them on their desks (other than having, for example, three or four files on their desk when they are working on those files). This is because of the risks associated with the confidential information in relation to the clients and so that other employees can find the files easily. This policy applied to everybody in the EAG. However, lots of employees failed to comply with it from time to time. Ms Ball has had words with many employees in the EAG reminding them to comply with the policy. She cannot specifically remember speaking to the claimant about it but it is likely that she did so, given that she spoke to a lot of members of the EAG about it. - 26 -[112]Although the most recent occupational health report had suggested that the claimant might spend an extra day working at home, this was not practicable because of the issue of client files. Whilst the respondent felt that it could allow the claimant one day working at home, any more would have made operations impractical for the claimant and the rest of the team because of the issue of access to the paper files. The respondent did not therefore allow the claimant a second day per week to work at home.[113]In the meantime, further issues about the claimant’s not responding to clients had been raised. In addition, in July 2017, another partner suggested to Ms Ball that the claimant was not being honest in relation to a work matter. Ms Ball decided that these matters needed to be raised with the claimant.[114]Ms Harwood, who had joined EAG as a partner on 2 May 2017, put together a list of the various performance issues in relation to the claimant. She and Ms Pennington met the claimant on 15 August 2017. Ms Pennington took bullet point notes which she typed up shortly after the meeting. They are not verbatim. However, we accept the evidence of Ms Harwood and Ms Pennington that they are a fair reflection of what was said. The claimant was sent a copy of the notes after the meeting. She did not suggest any changes to them.[115]Ms Harwood went through a number of the issues on her list. The claimant responded by talking about how she felt that there had been a lack of support and resource until that point. Ms Harwood went through all the resources that were available and told the claimant that she should be delegating, passing work sideways, communicating and trying to manage client expectations. She told the claimant to speak up when she didn’t have capacity to take something on; and pointed out that the team had additional resource to delegate to. The claimant spoke about working long hours and Ms Harwood told her to record all the time as this would then indicate if there was a need for additional resource, otherwise it would not be flagged up as a problem. The claimant said that Ms Ball had already told her to record all the time but that she, the claimant, thought that time spent recording overtime was a waste. Ms Harwood asked the claimant to write down a list of what she was working on so that she could help her delegate her work or get her some assistance for tasks she was working on. Ms Harwood also said that if the claimant was going on leave, she should write down what needed to be done, allocate work to colleagues to cover, tell the clients that she would be away and copy in the relevant person (this was a particular concern because, when the claimant was away, either on leave or off sick, it was difficult for her colleagues to know what needed to be done because she did not leave adequate notes). Ms Harwood and the claimant agreed that the claimant would put together her “to-do” list by the end of the month. The claimant missed this deadline and, even when she did send a list to Ms Harwood on 11 September 2017, it was incomplete.[116]The claimant maintains that Ms Harwood raised the issue of her clearing her desk of client files and maintaining a clear desk policy at that meeting. However, this is not recorded in the notes of the meeting and the evidence of Ms Harwood and Ms Pennington is that it was not raised. For reasons of respective - 27 - credibility, we prefer their evidence to that of the claimant and find that the matter was not raised.[117]In September 2017, two issues arose which went on to form the basis of disciplinary charges brought against the claimant.[118]The first involved communications between the claimant and a client (“client B”). It involved an application to HMRC which the respondent had been asked to do in respect of one of client B’s employees. The matter had become urgent and Client B had, on 15 September 2017, chased the claimant for an update on how the application to HMRC was progressing. The claimant replied to client B: “… There can often be a backlog of work with HMRC. I will chase up this matter and request urgent attention from HMRC.” Three minutes later, in an email to one of her colleagues, copied to Ms Ball, the claimant wrote: “FYI - I will take forward this application myself. I have asked Martyn to prepare the application and engagement letter several times over the last couple of weeks and still not received a reply from him. Unless the application has come to you without involving me, then the application has not be drafted and I will prepare this today.” The claimant had indicated to the client that the application had already been submitted to HMRC and the delay was HMRC’s fault when she knew that, in all probability, the respondent had not yet even submitted the application. In other words, the claimant appeared to be knowingly misleading the client.[119]The second issue arose on 19 September 2017. The claimant was off sick on the week of 18-22 September 2017. On 19 September 2017, she called Ms Ball to tell her that that day was the deadline when CIS returns were due for two clients; she said that she would liaise with the respondent’s Reading office and get the return done for one; and that the other one, for client “BS”, had already been filed earlier in the month by her and the receipt was on the file. Ms Ball asked her if she was sure and she said she was. At this point, given the earlier concerns about the claimant’s honesty, Ms Ball was not taking anything the claimant told her at face value and so she decided to double check that the respondent did have the receipt, but she could not find the file for client BS. She therefore checked the HMRC system and it appeared that no return for client BS had actually been filed. Ms Ball then called the claimant back. The claimant changed her story and agreed that she had not actually actioned this. Ms Ball then arranged for Ms Owens to file the return for client BS so that the deadline would not be missed. The matter was serious because, if she had not checked on the status of the return, it could have meant penalties from HMRC for late filing and another unhappy client. The claimant’s conduct appeared to be serious because she appeared to have told Ms Ball something that wasn’t true. - 28 -[120]HR were informed of these issues and it was decided that the matters should be put to the claimant in a disciplinary hearing.[121]The allegations were set out in a letter to the claimant dated 6 October 2017 inviting her to a disciplinary meeting on 16 October 2017 to be held by Ms Nicola May. Evidence in relation to both allegations was attached to the letter. The allegations against her were described as being that “you were dishonest with a partner (Susan Ball) and a client”. The claimant was notified of her right to be accompanied at the meeting by a colleague or a trade union representative.[122]On 3 October 2017, Ms Ball asked the claimant to send a holding email to a client. The client in question, “client S”, had been chasing the claimant for an answer on a matter but had not heard anything from her. The client had chased previously for feedback on 6 September 2017 and 12 September 2017 and then again on 28 September 2017. In the early evening of 3 October 2017, Ms Ball asked the claimant whether she had responded to client S’s request. The claimant said that she had not yet done so. Ms Ball asked the claimant to send an email acknowledgement to the client just to say that they had the matter in hand and then to prioritise the matter the next morning. The claimant got angry and upset. Matters became quite heated. However, all Ms Ball had asked her to do was to send a holding email; she did not expect her to stay and do the work that evening.[123]In her allegation about this incident, the claimant maintains that at the time she was asked she did not want to work any more because she was tired and in pain. However, Ms Ball cannot recall the claimant having raised issues about her health issues. Therefore, on the balance of probabilities, and taking into account our findings on the respective credibility of the witnesses, we find that she did not raise them.[124]The disciplinary hearing took place on 16 October 2017. Ms May, who is a partner from a separate division at the respondent and not part of the EAG, chaired the meeting. Ms Pennington attended as HR representative and she also arranged for an HR colleague, who was an experienced notetaker, to take a full note of the meeting. The claimant did not bring a trade union representative or a colleague.[125]At the start of the meeting, the claimant asked to record the meeting, noting that Ms Pennington’s note of the informal meeting which they had previously had on 15 August 2017 had only been a summary. Ms Pennington explained her that it was only a summary because that meeting had been informal. It is not the respondent’s policy to record meetings; however the HR colleague was there specifically to take a full note of this meeting because it was a formal meeting.[126]When the issue regarding client B was discussed, the claimant repeatedly went off on a tangent and did not address the issue of what was set out in the email exchange. Ms Pennington felt that the claimant was being deliberately obtuse in this respect. Furthermore the claimant changed the subject completely and start complaining about Ms Ball. - 29 -[127]They moved on to discuss the issue regarding client BS. The claimant stated that symptoms of her fibromyalgia and vitamin B deficiency included memory fog, headaches, chronic fatigue and muscular pain. She said that she had called in sick at the time and called Ms Ball to tell her that there were two returns that needed doing and that she thought one had been done but the other needed doing and that the long and the short of it was that she couldn’t remember what she had done or if neither had been done. Ms May took a break at this point and decided that she would give the claimant the benefit of the doubt with regard to her memory about the client BS issue, particularly as she was off sick at the time. However, she felt they needed to drill down further regarding the other (client B) issue.[128]There was therefore further discussion about that issue but again Ms May could not get a straight response from the claimant, so the meeting was adjourned. When it reconvened, Ms May told the claimant that she needed some more information to reach a conclusion. The claimant agreed that she would check that all of her notes were on the file and would let Ms Pennington have any additional relevant documents. Taking into account various leave dates, they agreed to try and reconvene around the end of October 2017 to conclude their discussions.[129]On 18 October 2017, the claimant went off sick with work-related stress and has not returned to work since. The disciplinary issue is, therefore, not yet concluded.[130]We have not made findings of fact in the section above on all of the individual issues in the list of issues as, for ease of reference, findings in relation to some of the self-contained specific allegations in that list of issues sit better next to the conclusions we reach. Therefore, in relation to some of the issues, our conclusions below contain further findings of fact specific to the issue in question. Conclusions on the issues[131]We make the following conclusions, applying the law to the facts found in relation to the agreed issues. Knowledge[132]The respondent had knowledge of the four disabilities respectively from the following points: 1. Vitamin B12 deficiency: the respondent knew about this from the beginning of the claimant’s employment. The extent of that knowledge was, however, that the claimant needed an injection every three months and not knowledge of how that disability might impact upon the claimant. The respondent knew of this disability being described as “pernicious anaemia” when it received the occupational health report of 6 June 2016. - 30 - 2. Fibromyalgia and sciatica: the respondent first had knowledge of these when they were mentioned by the claimant at her meeting of 7 March 2016 with Ms Ball. This was also the first occasion that the respondent was aware that the claimant had any memory issues connected to her health. 3. TMD: the respondent first had knowledge of this when it was mentioned in the occupational health report dated 6 June 2016.[133]As to knowledge of the individual symptoms, we deal with this (where necessary) in the sections below dealing with the various adjustments which the claimant maintains should have been made to alleviate those symptoms. Direct disability discrimination[134]We deal with the various allegations of direct disability discrimination in the order they are set out in the list of issues. 6(a) From August 2015 C was required to regularly work more than her contractual hours or anyone else in the EAG team in order to cope with her workload[135]As we have found in our findings of fact, there was no requirement imposed by the respondent on the claimant to work long hours. Quite the reverse; on numerous occasions the respondent indicated its concern that the claimant should not be working long hours. The reason that the claimant was working long hours was her own inefficiency, work method and inability/unwillingness to delegate. This allegation is not therefore made out and 6(b) R failed to keep its promise of providing C with suitably qualified and experienced staff to assist her[136]First of all, the claimant has not specified the “promise” that the respondent allegedly made about providing staff to assist her. As she has not proven this, this allegation fails. Furthermore she has not specified the level of qualification and experience which she required; the allegation fails for this reason too.[137]In addition, as regards the provision of staff to assist in general, we have found that there were staff there to assist her; however, it was the claimant’s choice not to use them.[138]The allegation is not therefore made out and therefore fails. 6(c) In April 2016 Susan Ball falsely accused C of not responding to a client[139]It was not clear at the start of the hearing what the claimant was alleging was the basis of this allegation. In her cross-examination, she confirmed that it - 31 - related to paragraphs 3.26 and 3.27 of her 144 page witness statement. Those paragraphs, albeit they are very vaguely worded, appear to refer to an exchange between the claimant and Ms Ball where the claimant was told to go and check her email inbox and that she should have checked her emails before she went into any discussions with the client in question. It was put to the claimant that when the claimant said that she could not locate the emails, Ms Ball forwarded them to her; the claimant said that she couldn’t see the emails and did not have them so Ms Ball sent them to her and shouted at her. Ms Ball was not crossexamined on this particular allegation and so has not had the chance to explain her account of the alleged incident.[140]In the light of our concerns regarding the reliability of the claimant’s evidence, given that there are no contemporary documents to back this up, we do not find that Ms Ball shouted at the claimant. We find that it is likely, given other evidence that we have seen of the claimant making assertions without checking things first, that she said she didn’t have the emails in question and Ms Ball simply forwarded them to her.[141]There is, however, nothing whatsoever to suggest that Ms Ball would do this for any reason other than operational reasons and certainly not because of any disability of the claimant. The allegation therefore fails. 6(d) In May 2016 Ms Ball falsely accused C of taking unauthorised annual leave 6(e) C was required to work from home whilst on sick or annual leave on 27 May 2016 and during the period 18 November 2016 to 9 December 2016[142]Allegation 6(d) and the first part of allegation 6(e) relate to the same incident. The claimant had booked a day’s holiday for 27 May 2016. However, her holiday was not booked through Ms Ball but through another manager and, although it went into a separate chart in relation to holiday, the fact that the claimant was on holiday that day was not entered into her work diary by her. Furthermore, the only entry in her work diary that day was that she had a call booked with client AS. On 27 May 2016, Ms Owens emailed the claimant, copying in Ms Ball, to say that she had taken a call from client AS who was “quite irate” as she had a call booked with the claimant at 10 AM that morning, it had been rearranged three times, and she had rearranged her own schedule to speak to the claimant that day. The claimant then duly called client AS from home.[143]Ms Ball checked the claimant’s work diary (although she did not check the holiday diary) and emailed the claimant to ask for an explanation, as she did not believe the holiday had been approved. The claimant responded that she had given notification of her leave and had updated the holiday diary. Ms Ball checked and noted that another manager had approved the leave. She quickly responded to the claimant and apologised for her mistake.[144]There was therefore a mistake about whether the claimant had booked holiday or not. However, the more serious issue was that the claimant’s failure to realise that she had a client call in her diary that day had caused a client to - 32 - become irate. This was clearly another client care issue at which the claimant was at fault.[145]In any event, Ms Ball’s email asking the claimant to explain herself regarding unauthorised leave was clearly because Ms Ball did not realise that the claimant had indeed booked leave that day; it was nothing whatsoever to do with any of the claimant’s disabilities. This element of the allegation therefore fails.[146]Furthermore, the claimant was not required to work from home whilst on annual leave on 27 May 2016. It was she who had diarised a call to client AS that day and caused the problem. The fact that she then spoke to client AS on her day’s holiday was her remedying the problem which she herself had created. It was clearly nothing whatsoever to do with a disability. This element of the allegation therefore also fails.[147]The other part of allegation 6(e) relates to the period when the claimant was off sick from 18 November - 9 December 2016. The claimant had told another partner that she would be doing some work from home. Where an employee is on sick leave, it is usual for them to brief a colleague who can then pick up any work they have left over. Occasionally, more senior members of staff may have to deal with anything critical which cannot be handed over, particularly if they have the file. The partner in question had a meeting with HR at this time and the respondent then arranged for the claimant to return four files to the office on 29 November 2016 when it became clear she would be out of the office for some time.[148]Therefore, to the extent that this involved the claimant doing very much at all, this handover was part of normal operational practice. It was nothing whatsoever to do with any of her disabilities. This allegation therefore also fails. 6(f) On 9 February 2017 Ms Ball falsely accused C of ignoring her emails[149]This allegation relates to a conversation between Ms Ball and the claimant on 7 February 2017 about “off payroll” and a particular client. Their discussion was about whether the “20% test” which had previously been in HMRC documents was in fact contained in draft legislation. Ms Ball took the view that it had been dropped because it was not contained in the draft legislation which she had circulated on 4 February 2017. The claimant disagreed and with Ms Ball’s agreement an email was sent to HMRC for confirmation (which duly confirmed that Ms Ball’s view was correct).[150]In cross-examination, the claimant accepted that she had seen the previous information circulated to the team on 20 December 2016 and the revised guidance and legislation on 4 February 2017. The 7 February 2017 discussion appears to have been just a discussion between colleagues who disagreed over the content of the draft legislation. We accept Ms Carse’s submission that, given that the information was circulated on 4 February 2017, it is reasonable to infer that there was discussion about whether the claimant had read the email. However, the evidence does not substantiate an allegation that Ms Ball behaved in an accusatory manner or said that the claimant had “ignored” - 33 - the email. Such conduct by Ms Ball would be out of character when one takes into account the other communications from her to the claimant which we have seen. Furthermore, given our concerns about the reliability of the claimant’s evidence, we do not accept that Ms Ball addressed the claimant in this manner. This allegation is not therefore made out and therefore fails.[151]In any event, there is nothing to suggest that this conversation was anything whatsoever to do with the claimant’s disability and the allegation fails for that reason too. 6(g) In March 2017, R relocated C’s desk into direct vicinity of an air conditioning vent and open plan office and this exacerbated the symptoms relating to her disabilities by reason of noise and/or cold air flow[152]As we have found, there was a move in March 2017 such that the claimant sat in an open plan office. The move was done for operational reasons. There were air-conditioning vents all over the open plan office, not just where the claimant was stationed.[153]There is nothing whatsoever to suggest that the reason for the move was anything to do with the claimant’s disabilities rather than for purely operational reasons. This allegation therefore fails. 6(h) In December 2016 & April 2017, Ms Ball told C to clear her desk of client files in front of the other staff[154]As noted, the respondent maintains a clear desk policy, for good client confidential information and operational reasons. It was often not adhered to by various employees, including the claimant. Whilst Ms Ball did not remember the two specific occasions set out in the allegation, she accepts that it is likely that she reminded the claimant of the policy. However, she did this to other employees as well. There is nothing, therefore, to suggest that she did this because of the claimant’s disabilities; rather, she was simply enforcing the respondent’s clear desk policy. This allegation therefore fails. 6(i) In July 2016 authorised C to work from home on less favourable terms than other staff[155]The respondent did allow the claimant to work from home for one day a week from July 2016 onwards. This was done for the claimant’s benefit. When the June 2017 occupational health report suggested an extra day working at home if possible, the respondent considered it but did not implement it because of the operational impracticalities due to the paper filing system. That was the reason why these working at home arrangements were not extended further; it was nothing whatsoever to do with the fact that the claimant had certain disabilities; this allegation therefore fails.[156]The claimant has named two comparators in this respect. One of these is CH (for the avoidance of doubt, not Ms Harwood). CH is a director in corporate tax. It was put to the claimant in cross-examination that the files in corporate tax - 34 - can be accessed remotely via Alpha Tax and the claimant said that she did not know whether this was the case. CH is not therefore a valid comparator because the issues about paper filing do not apply to her in the same way that they do to the claimant.[157]The other comparator named by the claimant is AC. AC is part of the EAG. However, it was put to the claimant that AC is a part-time member of staff who works four days per week in the office and two hours at home on a Friday morning. The claimant disagreed with this. However, given our concerns regarding the reliability of her evidence, we do not accept this and find that on the balance of probabilities it is more likely that AC is indeed a part-time member of staff who works four days per week in the office and two hours at home on a Friday morning. AC’s working at home arrangements are not, therefore, more favourable than those of the claimant. 6(j) On 15 August 2017, Caroline Harwood and Katrina Pennington told C: (i) To clear her desk of client files and maintain a clear desk policy. By doing as she had been instructed, this exacerbated or caused further injury to C[158]As we have found, Ms Harwood and Ms Pennington did not discuss the clear desk policy at this meeting. This allegation therefore fails. (ii) Made allegations of work not being completed for a client that C was not responsible for[159]The claimant confirmed that her allegation relates to a client whom we will refer to as “client A”. Client A was one of the clients on Ms Harwood’s list of points which she wanted to raise with the claimant. This matter had been raised with Ms Harwood by another partner so it was reasonable and proper for her to ask the claimant for an explanation. The claimant said that she was not responsible for this work. Ms Harwood and Ms Pennington accepted the claimant’s explanation and moved on.[160]There is no evidence whatsoever to suggest that the claimant was asked for an explanation because of her disabilities; rather, she was asked because the matter had been raised by another partner. This allegation therefore fails. (iii) Accused delays arising for a client that C worked on which were not C’s fault[161]This allegation related to client AS. Ms Harwood raised the fact that client AS had sent a query in December 2016 but had not had a response from the claimant. Ms Harwood did not blame the claimant for delays but made the point that the claimant had failed to keep the client informed. (Again, this was one of a myriad of examples of the claimant failing to keep clients informed which we have seen in the bundle). There is no evidence to suggest that Ms Harwood raised this issue because of the claimant’s disabilities; rather, she did so because the claimant had failed to keep the client informed and this was a matter which was therefore appropriate for her to raise with a senior manager. This allegation - 35 - (iv) Made incomplete, incorrect and/or misleading notes of the meeting held on 15 August 2017 and did not allow C the opportunity to correct or agree the notes[162]As we have found, the notes of the meeting were not verbatim; in that sense, therefore, they were incomplete. However, they were accurate; they were neither incorrect nor misleading. Furthermore, the respondent did not prevent the claimant from correcting or agreeing the notes; they were sent to her and she could have done this if she had wanted to. The only part of this allegation, therefore, that is established factually is the allegation that the notes were, in one sense, “incomplete”. However, as Ms Pennington stated in evidence, this was an informal meeting and it was not the respondent’s practice to take full notes at such meetings. There is nothing to suggest that adopting this practice was anything to do with the claimant’s disabilities. This allegation therefore fails. 6(k) Susan Ball instructed C to work from home on Thursday 21 September 2017 and Friday 22 September 2017 when C had declared herself to be unfit for work due to a disability related illness[163]As we have found, the claimant was off sick this week. She did not record any chargeable time during that week. Ms Ball did not require the claimant to work that week; any work she may have done would have been at her own initiative. The claimant emailed Ms Ball and asked for her laptop to be couriered to her; however, that was the claimant’s decision and was not forced on her by the respondent. The allegation is not therefore made out and fails. 6(l) In September 2017, Susan Ball made two unsubstantiated allegations of dishonesty against C[164]The two allegations were in fact set out in the letter of 6 October 2017 to the claimant (not in September 2017 and not by Ms Ball). We have set out the details of them in our findings of fact above. Both of them, as set out, give good grounds to believe that the claimant had been dishonest, in the one case with a client and in the other with Ms Ball. Honesty is clearly of great importance in any employment relationship, even more so in the context of highly regulated industry and one where the respondent owes fiduciary duties to its clients. It was entirely appropriate to put those allegations to the claimant in a disciplinary meeting.[165]The allegations were quite clearly made because of what the evidence appeared to show and the seriousness of that; the decision to do so was nothing whatsoever to do with the claimant’s disabilities. 6(m) At around 7.00 pm on 3 October 2017, Susan Ball told C to respond to a client when C did not want to work any more because she was tired and in pain[166]As set out in our findings of fact, this allegation relates to a client which had chased the claimant three times for a response. Ms Ball had asked the claimant if she had responded and the claimant said that she had not. Asking the claimant to send a holding response to the client would not have involved much time on the claimant’s part and was an entirely reasonable and proper - 36 - course of action for Ms Ball to take in the circumstances. Her decision to ask her to do this was nothing whatsoever to do with the claimant’s disabilities; it was to do with the operations of the business and client care. This allegation therefore[167]In summary, therefore, the allegations of direct disability discrimination all fail. Reasonable adjustments[168]We turn now to the allegations of a failure to make reasonable adjustments. 8(a) Requiring her to attend the office for long hours from July 2015 to October[169]As noted, this allegation appears to be of a PCP that was applied, without setting out what the substantial disadvantage was and what reasonable adjustments should have been made.[170]However, it is not necessary to try and formulate what those might be. As we have found, the respondent did not require the claimant to attend the office for long hours; to the extent that the claimant did so, this was because of her own inefficient work practices and inability/unwillingness to delegate. The PCP is not therefore established and this allegation therefore fails at the first stage. 8(b) Failing to provide her with a suitable workstation/equipment for example: (i) Suitable ergonomic mouse (vertical not horizontal)[171]The claimant admitted in cross-examination that this is an adjustment which she says would be reasonable in relation to her carpal tunnel syndrome. This is not a disability for the purposes of this claim. This allegation therefore (ii) Elevated/angled stand for the keyboard or “under the desk” mounted tray for keyboard[172]The claimant has failed to establish what the PCP and the substantial disadvantage are in relation to this alleged reasonable adjustment. The allegation fails for that reason.[173]In any case, this adjustment was not something which was recommended in any of the medical reports. Notwithstanding that, following the 15 June 2017 occupational health report, the respondent carried out a workstation assessment with the claimant and did indeed arrange for a higher level keyboard to be provided. To the extent that any duty arose in this respect, therefore, the respondent complied with it. This allegation therefore fails. - 37 - (iii) Chair to prevent sciatica from developing[174]Again, no PCP or substantial disadvantage has been established by the claimant, so the complaint fails for these reasons.[175]However, as to the adjustment relied on, the claimant admitted that she was provided with a suitable chair. The respondent therefore did make the adjustment in question. This allegation therefore fails. (iv) Headset so that C did not have to hold the phone in neck using the left side of her chin and left shoulder[176]Again, no PCP or substantial disadvantage has been established by the claimant, so the complaint fails for these reasons.[177]However, headsets were provided to all employees of the respondent when Skype was introduced from May 2016. Therefore, to the extent that this duty even arose, the respondent made this adjustment. The complaint therefore (v) Access to filing near her workstation[178]The claimant’s evidence was that she had a filing cabinet where she put her files near her desk but that this was removed in late 2016. The claimant was required to use the filing cabinets in the central range to store client files; this was so that the other employs in the EAG would know where to find the relevant files. Furthermore, the filing range was no more than 30 to 40 seconds walk from the claimant’s desk and the claimant has not suggested that walking there was a problem for her. She has suggested that the filing range got full as files increased in size and it was harder to pull files out and put files into the range; however, in this respect, the assistance of a dedicated filing clerk was available at all material times.[179]It is, therefore, unclear what the PCP is which the claimant seeks to rely on in relation to this alleged reasonable adjustment or indeed what the substantial disadvantage which she relies on is. All we can assume is that the PCP is having to use the central filing range. As to the substantial disadvantage, all we can assume based on the evidence is that it is not the distance of the range from the claimant’s desk but the difficulty of putting files in and taking them out of the range which is what the claimant relies on. However, because of the assistance of a filing clerk, the claimant was not put at any disadvantage, let alone a substantial one, in this respect. This reasonable adjustment complaint[180]As to what is specifically set out in the list of issues, the allegation focuses on the filing being near her workstation; however, as we have noted, the claimant has not shown that a lack of proximity was an issue which disadvantaged her because of the disabilities or that she was placed at a substantial disadvantage by having to walk for 30 to 40 seconds to get to the range, so such an allegation would fail; furthermore, it would not be a reasonable adjustment to allow her to - 38 - use her own filing system next to her desk when the rest of the EAG, for good commercial reasons about everyone knowing where the files were, had to use the central range, particularly given that there was a dedicated filing clerk to access the files; such an allegation would therefore fail for this reason. In any case, as set out above, the claimant’s concern appears to have been about the difficulty of taking the files out of and putting them into the range when the range was full rather than the distance of the range from her desk. (vi) Humidifier[181]The claimant accepted that this alleged reasonable adjustment would be in relation to her dry eyes; that is not a disability for the purposes of this claim and therefore this allegation fails. 8(c) Failing to relocate C from out of the flow of air released from the air conditioning or place her in a quieter part of the office from June 2016[182]This allegation falls into two parts.[183]Dealing first with the air conditioning, the claimant does not appear to have had an issue about this from June 2016 as stated in the allegation; rather, it appears allegedly to have become an issue from March 2017 when she moved to the open plan part of the office. There was air conditioning in every part of the open plan office. We therefore presume and accept that the PCP applied was to place the claimant in the open plan part of the office where there was air conditioning.[184]However, the claimant has not established that this placed her at a substantial disadvantage. Cold air in the air conditioning is not mentioned anywhere in any of the medical reports nor was it raised by the claimant with the respondent (reference to air-conditioning was only in relation to noise, not in relation to the cold air that the claimant now maintains the air conditioning system produced). There is no evidence beyond the claimant’s assertion (which we do not rely on given our concerns about the reliability of her evidence) that cold air put her at a substantial disadvantage. This allegation therefore fails for this reason.[185]It also fails because of the issue of knowledge. The respondent was never told, either by the claimant or through the medical reports, that cold air might cause the claimant any problem; it could not therefore reasonably have been expected to know that the claimant was placed at any substantial disadvantage (even if there was one) because of any cold air from the air conditioning system. Therefore, the respondent was not subject to a duty to make a reasonable adjustment in this instance.[186]Furthermore, even if it had been under such a duty, the respondent could not shut off the air conditioning system. Assuming that the adjustment sought by the claimant would be to turn off the vents near her, it was not possible to do so and therefore such an adjustment could not be reasonable. As to relocating her, the air conditioning system was all over the office so no relocation could have - 39 - assisted in this respect. The complaint would therefore have failed for this reason too.[187]In respect of noise, the occupational health report of 6 June 2016 did refer to noise, so the claimant was offered noise cancelling headphones, but rejected them. By the time of the occupational health report of 15 June 2017, the claimant was in the open plan part of the office, and we assume that the PCP, which we accept is established, is the placing of the claimant in the open plan part of the office. However, notwithstanding the medical evidence, we do not accept that this placed the claimant at a substantial disadvantage. The medical evidence is based on what the claimant told the relevant doctors, namely that ambient noise was a problem for her. However, we have accepted the respondent’s evidence that the open plan office was not particularly loud and that the EAG was located in a particularly quiet part of it; and that furthermore, being in a small private office with other individuals can actually be louder than being placed where the claimant was in the open plan office. We do not, therefore, accept that the claimant has established that she was placed at a substantial disadvantage. This complaint therefore fails for this reason.[188]In any case, the respondent investigated placing the claimant in a private office but was told that it was not possible. The offices were needed for partners and others where privacy was required. Furthermore, given the evidence about the level of noise in a private office anyway, such a move would not have been effective. For these reasons, therefore, we do not consider that placing the claimant in a private office was a reasonable adjustment. The allegation fails for this reason too.[189]Noise cancelling headphones would have been a reasonable adjustment which would have been effective and these were offered; however the claimant did not take them up when they were first offered. 8(d) Failing to provide C with adequate assistance from other members of staff from August 2015[190]As we have found, the respondent did not fail to provide the claimant with adequate assistance from other members of staff at any time; rather, the claimant did not take advantage of that assistance and was unable/unwilling to delegate. The PCP has not therefore been established and this complaint 8(e) Refusing C’s requests to be allowed to park her car at the office in September 2016 and December 2016[191]During the evidence, it was established that the second reference under this allegation is in fact to October 2016 rather than December 2016.[192]The respondent’s office has only four parking spaces, and only two of these are accessible without cars moving. They are used by staff, clients and contractors of all those in the building. Staff are able to book spaces in advance with the respondent’s office manager. We have seen email evidence in the - 40 - bundle that, subsequent to the claimant being allowed to work Wednesdays at home (in other words at some point in the period after July 2016), the claimant would park in the office parking on Tuesdays and Thursdays; she explained in her evidence that this was because she took files home to work on on the Wednesday and she wanted to park at the office so that it would be easier for her to take them away on a Tuesday and bring them back on the Thursday. There was not a problem with doing this. However, what she failed to do was to comply with the respondent’s rules that she should notify the office manager in advance when she wanted to use the parking spaces and the office manager had to remind her of this. The claimant, in rather impertinent email correspondence with the office manager, then told her that she had decided that she would make her own parking arrangements instead. The claimant continued to drive to the office, but simply used public parking for which she paid.[193]The PCP relied on by the claimant is not therefore made out; the respondent did not refuse to allow the claimant to park her car at the office, either in September/October 2016 or otherwise. The claimant was permitted to park her car there; however, what she had to do was to comply with the respondent’s rules to book spaces in advance. The decision then to discontinue using the respondent’s parking was the claimant’s own decision. This complaint therefore[194]Furthermore, even if there had been such a refusal, the claimant has not established that it placed her at a substantial disadvantage. We assume that the substantial disadvantage which she relies on related to carrying her files; however, she has not established whether carrying the files is merely inconvenient or that it is something that, because of her disabilities, places her at a substantial disadvantage. Furthermore, she has not established that it would be any better for her to use the office parking spaces rather than the public parking spaces in terms of alleviating any disadvantage (if any) in relation to her disabilities (there would be a cost benefit to her in not having to pay for the public parking, but that is a separate issue). The complaint fails for this reason too. 8(f) On 16 October 2017, R refused to allow C the use of electronic equipment to record the conversations of a disciplinary hearing whilst knowing that C would not be able to make notes of the meeting herself[195]The respondent did refuse to allow the claimant to record the disciplinary meeting on 16 October 2017. The PCP is therefore established.[196]However, we do not find that the claimant was placed at a substantial disadvantage. First, the claimant had been told of her right to bring a companion, who could have taken notes of the meeting; however, she did not do so and that was her choice. Second, there was an experienced notetaker there who took a full note of the meeting; the claimant was therefore placed at no disadvantage. This allegation therefore fails.[197]In summary, therefore, the complaints of a failure to make reasonable adjustments all fail. - 41 - Time Limits[198]As noted, the claimant has been off work sick from 18 October 2017; she had contacted ACAS on 18 January 2018; ACAS early conciliation had concluded on 4 March 2018; and the claim was presented on 3 April 2018. Therefore, any alleged event which took place prior to 19 October 2017 was presented out of time.[199]We turn first to what is the latest allegation of direct discrimination. The last of these in date terms is issue 6(l), which took place on 6 October 2017; although the list of issues refers to this as being in September 2017, the two allegations were in fact set out in a letter of 6 October 2017 to the claimant from Ms Pennington. Even if it could be said that some of the undated issues (for example 6(a)&(b), in relation respectively to the claimant being required to work more than her contractual hours and the respondent not providing her with suitably qualified and experienced staff) were continuing acts of discrimination, they clearly could not have gone on beyond 18 October 2017 as the claimant was not at work from then on; they too were therefore presented out of time. All of the allegations of direct discrimination were therefore presented out of time.[200]In terms of the allegations of a failure to make reasonable adjustments, the latest that these allegations could apply is 18 October 2017 and therefore they too are all out of time. (In fact, it is likely that time started running in relation to many of them at an earlier stage than that, in accordance with the principles in Matuszowicz set out in our summary of the law; however it is not necessary to carry out that enquiry in relation to each of the individual allegations of a failure to make reasonable adjustments as, regardless of that, the very latest date is 18 October 2017 and these allegations were therefore all presented out of time.)[201]There are no successful in time allegations (nor indeed any in time allegations at all) to which earlier out of time allegations could be connected so as to amount to conduct extending over a period so as to mean that those earlier allegations are deemed to be in time. This does not therefore assist the claimant.[202]In her written submissions, the claimant sought to link allegations in the list of issues to events which she maintained happened after she went off long-term sick on 18 October 2017. However, these later matters were not part of the claim or allegations in the list of issues. It is not, therefore, possible as a matter of law to link matters which are part of the proceedings with other matters which are not part of the proceedings so as to amount to conduct extending over a period. This does not therefore assist the claimant either.[203]There remains therefore only the question of whether or not it is just and equitable for the tribunal to extend time. We remind ourselves that the burden of proof to show that it is just and equitable to do so rests with the claimant.[204]The reason put forward by the claimant as to why she did not put her claim in any earlier was that she was not in a fit state to do so. We have referred to this in the sections assessing the credibility of the claimant’s evidence. We do - 42 - not accept her reason. She stated that for 3-4 months following 18 October 2017, she was not in a mentally fit state, so much so that she could not and did not leave the house for 3-4 months; had all her doctor’s appointments over the phone; did not even go into her garden; and put the bins out at night because she didn’t want to go out. However, her GP report of 12 December 2017, right in the middle of that period, states “As stated to me by Mrs Kalia, if she maintained working hours at 30 hrs/week with appropriate workload appropriate to her role, she sees no reason why she should not be able to perform the duties”. What she told her doctor at that time is therefore completely in contrast to the picture she sought to paint in her oral evidence before the tribunal. We have also noted that, in fact, she did get out of the house to visit her doctor, contrary to what she originally told us. The claimant’s dishonesty in her evidence aside, we find that it is far more likely that what she told her doctor at the time in December 2017, and which is reflected in his note of what she said, is the true version of events. If the claimant thought she was capable of working a 30 hour week in the job that she was doing, she was certainly capable of putting in an employment tribunal claim.[205]Right at the end of the hearing, after submissions had been completed, the claimant asked to add a further point. Clearly concerned about the impact that the evidence above had on the jurisdictional issues, she stated that, when she was giving her evidence, she had said she had admitted that she had gone to the doctor’s in person and that she did not have merely telephone appointments; she then told us that, in fact, all the appointments in person were from January 2018 (in other words from after the time she was putting in her claim) and that she did not go to the doctors in person when she was unwell; she added that the medical records showed this. The judge explained that it would be very difficult for the tribunal to take this evidence into account given that that was not the evidence she gave earlier. However, after the hearing, the tribunal did look at the doctor’s records in question. In fact, these clearly showed that the claimant did attend the doctor’s surgery in person on several occasions between October 2017 and January 2018, albeit there were some telephone appointments as well. Therefore, all that the claimant’s comment at the end of the hearing did was to underline even further the lack of credibility in her evidence.[206]Furthermore, the claimant was very alive to the possibility of putting in a claim.[207]First, she has considerable experience of employment tribunals. As she admitted in cross-examination, she had brought employment tribunal proceedings against her previous employer for whistleblowing and disability discrimination; these had been determined at a multi-day hearing; not only had the claimant lost on all of the allegations in her claim but she subsequently had costs awarded against her at a subsequent costs hearing. Furthermore, the claimant had been represented at that hearing by a barrister and had instructed solicitors in relation to the case. Although she sought in her evidence, as was typical of her attitude to attributing responsibility generally, to blame her solicitors and barrister for what happened, she clearly had considerable legal advice and assistance in relation to those employment tribunal proceedings. Whilst she suggested that there had been no discussion of time limits in relation to those proceedings, we do not (particularly given that she has been dishonest in so - 43 - many aspects before this tribunal) believe her and find it far more likely that there was at least some discussion of time limits at the time and that the claimant was aware of their importance.[208]In relation to these proceedings, the claimant was in touch with her legal insurers and had given details of the proposed claim. She was certainly contemplating bringing a claim as early as early November 2017 when she was in touch with those insurers. In addition, the documentation with the insurers made clear that, notwithstanding that her application for legal insurance for the claim was rejected, she had access to their legal advice helpline. In addition, the documentation references the fact that the claimant had other “preferred solicitors” lined up. The claimant admits that she spoke to “solicitors” but maintains that this was just her insurer’s helpline and that she only spoke to them and sent them some documents but received no advice; we do not, however, believe her when she suggests that she received no advice from them (if they were solicitors, we find it inherently unlikely that they did not give some advice to her and, given our concerns about the claimant’s honesty, do not accept that she did not receive any advice from them). Furthermore, the documentation from the insurers indicates that a barrister had assessed the likely chances of her claim succeeding and had found that they were less than 50%, which was a further reason given by the insurer for refusing her application for insurance for an employment tribunal claim.[209]The claimant’s evidence to this tribunal was that she was aware of time limits but didn’t know there was a three month time limit in the employment tribunal. Again, in the light of her previous employment tribunal litigation experience and the fact that she was speaking with lawyers as early as early November 2017, we do not believe her and find that, on the balance of probabilities, she did know about tribunal time limits and what they were. It is far more likely that she simply got the application of the time limit wrong: we note in this respect that she contacted ACAS exactly 3 months after the day she went off sick (albeit that was one day too late to keep any allegations dating from 18 October 2017 in time) and then (on an assumption that she had contacted ACAS early enough initially) presented her claim on the last possible day for presentation after the close of ACAS early conciliation.[210]Finally, the claimant suggested in her evidence that she hadn’t been contemplating an employment tribunal claim until 18 January 2018 (which was the date she contacted ACAS) and that, rather, she was prompted to do so because of a call made by Ms Pennington to her on 18 January 2018. The claimant covertly recorded this call without Ms Pennington’s knowledge. The claimant describes this call as one which amounted to bullying her; however, having heard Ms Pennington’s evidence and seen the transcript, it is clearly a welfare call from an employer which is concerned about an employee who has been off sick for a long time.[211]First, we can see nothing in the transcript of this call which indicates that it would be something which prompted the claimant to bring an employment tribunal claim if she had not been contemplating a claim prior to that call. Secondly, the claimant’s assertion in this respect is completely at odds with the - 44 - evidence which we have set out above which clearly shows she is contemplating an employment tribunal claim as early as early November 2017. We do not, therefore, believe the claimant’s assertion in this respect.[212]We can, therefore, see no reason why the claimant could not have submitted her claim on time.[213]Furthermore, applying the test which we have to apply, the claimant has not proved that it would be just and equitable to extend time and we do not therefore extend time. The tribunal does not therefore have jurisdiction to hear any of the claimant’s complaints under her claim and the claim is therefore struck out in its entirety.
Findings of Fact
[1]By email sent to the tribunal on 13 June 2019, the claimant applied for reconsideration of the judgment sent to the parties on 31 May 2019.[2]Under Rule 72(1) of the Employment Tribunal Rules of Procedure 2013, such an application is to be refused, without the need for a hearing, if an employment judge considers that there is no reasonable prospect of the original decision being varied or revoked.[3]The claimant’s application runs to some 51 pages, plus attachments. With the exception of the matter referred to in the paragraphs below, the vast majority of the application consists of: matters being raised which either were raised or could have been raised at the original eight day hearing; attempting to relitigate issues which were already considered at the original hearing; matters which are not relevant to the decisions reached by the tribunal on the issues; or a combination of these. The purpose of the reconsideration process is not to give parties the opportunity to simply relitigate a case that has already been heard and it would not be in the interests of justice to do so. There is, therefore, no reasonable prospect of the original decision being varied or revoked and the application for reconsideration is accordingly refused.[4]The one matter which I wish to address in detail here is contained in paragraph 1 of the application. There, the claimant suggests that, although the complaints determined by the tribunal were of direct disability discrimination under section 13 Equality Act 2010 and of a failure to make reasonable adjustments, she was in fact also bringing complaints of discrimination arising from disability under section 15, which the tribunal did not consider.[5]This is simply not true. I refer in full to the discussions at the start of the hearing regarding the list of issues for the tribunal to determine for that hearing, which are set out at paragraphs 5-13 of the reasons for our decision. However, I would add the following points.[6]The claim form does not include or specify complaints under section 15; the narrative of that claim form reads for the most part as a series of complaints about the respondent’s actions generally which, given the “disability discrimination” box has been ticked, might suggest that the claimant is alleging that these actions were taken because of the claimant’s disabilities (i.e. direct discrimination under section 13) but that narrative does not obviously or clearly suggest that the actions were allegedly taken not because of the disabilities themselves but because of something else which arose from the claimant’s disabilities; in other words, no section 15 complaint is pleaded, either specifically in terms of stating that a complaint under section 15 is brought or in terms of setting out the structure of it (that unfavourable treatment was done, that it was done because of something in particular, and that that “something” arose in consequence of the claimant’s disability or disabilities) or even through inference from the factual narrative in the claim. Accordingly, and unsurprisingly, the respondent’s response form (although it makes reference to the claimant claiming discrimination arising from disability contrary to section 15 in its background paragraph 2) responds only to complaints of direct discrimination (and reasonable adjustments) in its rebuttal of the complaints at paragraphs 40- 47 of the response.[7]No application to amend the claim was made by the claimant in relation to this issue at any stage (the claimant’s application to amend the claim which she made during the hearing, which was refused by the tribunal and which is detailed at paragraphs 48-52 of the reasons, was in relation to a different matter). There were, therefore, no section 15 complaints before the tribunal.[8]As noted at paragraph 5 of the reasons, the list of issues for the full merits hearing had long since been agreed between the parties and had been discussed at an earlier case management hearing before a different employment judge. Subject to some of the minor changes referred to in paragraphs 5-13 of the reasons, the parties confirmed at the start of the full merits hearing that the list was agreed. That list contained a heading “Direct disability discrimination – s.[15]EqA” (which is clearly contradictory), under which were then listed the various factual allegations which form the basis of the direct discrimination complaints. At paragraph 6 within that section, the legal question asked is “Whether R committed the following alleged acts which amounted to less favourable treatment of C because of her disability contrary to s. 13 EqA”. It is clear from this that the question to be answered by the tribunal is the direct discrimination question, both from the fact that it is section 13 (and not section 15) which is referenced and from the nature of the “because of” question which, when one refers to the statute, is the section 13 question to be asked and not the section 15 question. Furthermore, even the heading quoted above refers to direct disability discrimination and not to discrimination arising from disability such that, even within the heading itself, there is an anomaly between the complaint and the section of the statute quoted. It is clear from the totality of this that these were intended to be allegations of direct discrimination under section 13 and not of discrimination arising from disability under section 15 and that the reference in the heading to section 15 was a typographical error. When agreeing the issues at the start of the hearing, and to ensure absolute clarity, I asked the parties whether the reference in the title was therefore just a typographical error and they confirmed that it was; the matter was so non-contentious that it is not even recorded in the section in our reasons regarding the list of issues. 9. It is, therefore, to put it mildly, extremely surprising to find that the claimant is now alleging that there was always a section 15 complaint (or complaints) in the claim. For the reasons set out above, there was not. Furthermore, the issues of the claim were at all stages agreed on the basis that the complaints were of direct discrimination under section 13 (and not discrimination arising from disability under section 15). The claimant, having lost her claim, is simply trying to move the goalposts after the event. There is, therefore, no reasonable prospect of the tribunal’s decision being varied or revoked on this ground either. 10. I should also note that, even if there were, this would not result in any change to the tribunal’s primary judgment that (on time grounds) it did not have jurisdiction to hear any of the claimant’s complaints, as the timescales for any section 15 complaints would be no different from those for the section 13 complaints which the tribunal heard; in other words, even if there were section 15 complaints, the outcome would be the same. 11. As there is no reasonable prospect of the original decision being varied or revoked, the application for reconsideration is refused. 12. I apologise for the delay in responding to the application for reconsideration; however, it was only recently placed before me.
The Evidence
[16]In terms of the substance of the various complaints made, there were numerous allegations of direct disability discrimination and of a failure to make reasonable adjustments. We cross refer to the findings in our conclusions in our judgment and reasons on liability as a whole, where we go through each of these complaints one by one.[17]However, in summary, in relation to the direct discrimination complaints, very often the claimant could not even establish the factual allegation of less favourable treatment and clearly could not have done so from the start based on the evidence before us (one example is her complaint that Ms Ball gave her too much work, which we rejected the factual basis of). Furthermore, on the instances where less favourable treatment was established, there was no shred of evidence to suggest that anything which the respondent did was because of the claimant disabilities and there were clear non-discriminatory explanations for the reasons why the respondent did what it did. There was, therefore, no reasonable prospect of the claimant shifting the burden of proof in this respect and no reasonable prospect of these complaints succeeding. In relation to these complaints, therefore, the threshold at stage 1 is passed and we are obliged to consider whether to exercise our discretion to award costs.[18]In relation to reasonable adjustments, very often the claimant could not even establish the PCP relied on or the substantial disadvantage. In the few occasions where these were made out, she had no reasonable prospect of establishing that the adjustments which she said were reasonable were in fact reasonable. These complaints therefore had no reasonable prospect of success; the threshold at stage 1 is therefore passed and we are obliged to consider whether to exercise our discretion to award costs. Unreasonable conduct in bringing/conducting the proceedings[19]The claimant’s conduct of the proceedings in general was unreasonable. We found the claimant was dishonest in her evidence on numerous occasions; it was not merely that she was dishonest, rather it was that she was dishonest in crucial areas to her case (such as the jurisdiction issue referred to above).[20]She also behaved in an unreasonable manner in a way which disrupted the progress of the hearing: she produced additional documents at various stages during the hearing; she produced in the middle of the hearing a covert recording of a conversation which she had recorded and applied to have it included; she made a late application to have two weeks to provide written submissions, despite having known of the dates of the hearing for some considerable time previously; although this was rejected, she was given an extension of one day which caused the respondent to incur the cost of an additional day’s attendance at the tribunal. We accept the respondent’s submissions that the claim behaved unreasonably in relation to the production of documents for both preliminary and final hearings. The claimant insisted on including large volumes of irrelevant documents. Her two bundles ran to 2622 and 577 pages respectively in contrast to the 849 page bundle produced by the respondent; yet it was the respondent’s bundle that was predominantly referred - 4 - to at the hearing and the vast majority of the claimant’s material was irrelevant and hardly referred to.[21]These examples of unreasonable behaviour by the claimant also trigger stage 1 of the test and mean that we are obliged to consider whether to exercise our discretion to award costs. Stage Two[22]In considering whether to exercise our discretion to award costs and, if so, in what amount, we take into account anything that we consider relevant to that issue.[23]First, we note that the claimant is a litigant in person. However, she is no ordinary litigant in person who is unfamiliar with the tribunal process. She has brought previous employment tribunal proceedings (indeed she has brought proceedings which she has not only lost but which have resulted in a substantial award of costs being made against her); she has had access to legal advice during those proceedings and in relation to the present proceedings. She is, therefore, fully aware of the risks involved in employment tribunal litigation and the risk of costs awards being made.[24]The respondent made various offers to settle this litigation. The matter went through judicial mediation. There was an offer of £48,000 to settle it. Finally, there was an offer of £120,000 to settle the matter made on 19 February 2019, several months prior to the hearing. We are conscious that that offer also included agreement that her employment with the respondent would terminate. However, given the weakness of her claim, the fact that she is off sick and no longer in receipt of salary from the respondent whilst facing disciplinary charges which, in the light of the evidence which we saw during this hearing may well result in her dismissal, and the sheer size of the offer, we consider that it was completely unreasonable for her not to accept it. However, she did not accept it.[25]The costs schedule produced by the respondent, totalling around £162,000, does not appear to us to be particularly surprising given the amount of time and work which this litigation will have required and the way the claimant has conducted it. Whilst we are not required to do a detailed assessment, we have considered the respondent’s schedule and do not doubt that at least the majority of these charges were properly incurred. In any event, the respondent is only seeking £20,000 of those charges; that sum is certainly entirely reasonable in the context of the work done in defending this claim.[26]Furthermore, the costs incurred as a result of the claimant’s behaviour outlined at stage 1 flow from the very beginning of the proceedings as those proceedings were from the start unreasonably brought and had no reasonable prospect of success. It would be reasonable therefore to include any charges from the start of defending the claim rather than limiting it, say, to charges incurred in recent months only. However, the reasonableness of seeking 20,000 is heightened by the fact that costs well in excess of that sum have been incurred - 5 - since the offer of settlement of £120,000 expired (for example, Ms Carse’s counsel’s fees alone, which were incurred since that offer, total around £37,000).[27]All of the £20,000 costs sought therefore derive from the unreasonable conduct of the claimant/the unreasonable claim which she brought.[28]We turn to the issue of the claimant’s means. The claimant set out in her bundle a schedule of her ongoing payments. It is clear from that that her income at present is very small. She is on universal credit. She remains employed by the respondent but she has been off sick for a long time and is no longer in receipt of any salary or sick pay. Furthermore, according to medical evidence provided in her bundle, it is not likely that she will return to work soon. She has outstanding debts of around £24,000 in the form of credit card debts and a loan. Her monthly outgoings are of around £2,444, including mortgage payments of £1,421 per month. Her outgoings therefore considerably exceed income and she could not pay these costs on the basis of her earnings going forwards. However, as she explained in response to questioning from the tribunal, she does own her own home which is worth around £400,000; she has about £182,000 outstanding on her mortgage; and she accepted therefore that she had between £210,000 and £220,000 of equity in her house. She does therefore have the assets to pay £20,000 of costs, albeit that would be at considerable hardship to her if she was unable to obtain a loan either commercially or from family and had to sell her home. Taking her means into account, therefore, she could pay these costs, which is an indicator that an award should be made where, as in these circumstances, the costs have been properly incurred and have been incurred as a result of the claimant’s unreasonable behaviour/claim having no reasonable prospect of success.[29]We would add that, even if the claimant had not had the means to pay the costs, we would nonetheless have awarded them: this is because of the seriousness of this particular claimant, with all her experience of litigation, having put in this worthless claim and having behaved in the unreasonable manner set out above and in our judgment and reasons on liability. For no good reason whatsoever, the respondent has been put to completely unnecessary and very extensive expense.[30]We therefore make an award of costs of £20,000, payable by the claimant to the respondent.