Mrs D Bouklieva v Imperial College Healthcare NHS Trust and Others: 2202174/2022
EMPLOYMENT TRIBUNALS
Case No 2202174/2022
Between
Mrs D BouklievaClaimant(1) Imperial College Healthcare NHS Trust (2) Ms S Robinson (3) Ms N Manning (4) Ms M Denison RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge JoffeIn person for claimantMr A Shellum (instructed by counsel) for respondentDate 3 August 2023
JUDGMENT
[1]The claimant had disabilities within the meaning of the Equality Act 2010 between April and 31 October 2021 in respect of the following impairments:a. Left shoulder impairment;b. Lower back impairment;c. The left wrist impairment taken together with the other impairments.[2]The claimant’s following conditions were not disabilities within the meaning of the Equality Act 2010 between April and 31 October 2021:a. Headaches;b. Neck condition;c. Right wrist condition;d. Heart symptoms;e. Leg conditions.
REASONS
Conclusions
[1]The claimant is pursuing a variety of causes of action including claims for disability discrimination. A list of issues had been agreed at a case management hearing in front of Employment Judge Grewal, who also listed this open preliminary hearing to consider, amongst other matters: whether the claimant was disabled at the material time by reason of soft tissue problems and premature menopause. I have made case management orders which are contained in a separate document. Findings of fact
Hearing
[2]For the purposes of the decision on disability, I had the claimant’s impact statement and a bundle running to 348 pages of which over 200 pages were medical records. The claimant gave oral evidence and was cross examined by Mr Shellum. Both parties made oral submissions. I then had to reserve my decision as it was already the end of the Tribunal day.[3]It is convenient to set out each impairment relied on by the claimant, the evidence which she herself gave about that impairment and the available medical evidence. It is not practicable to set out every item of evidence about each impairment but I have taken the totality of the evidence into account when reaching my judgment.[4]The claimant said more generally about herself that she tried to bear pain from her various impairments and would only go to a doctor if the pain was 6/10 or worse on the pain scale. She tried not to take time off work unless she had to and would try to manage her pain with painkillers. Because she had a number of issues at the relevant time she was only seeking help for whichever was the worst. She made the point that it was difficult to get GP appointments during parts of the pandemic, particularly during lockdowns. When questioned about why, at times, she had not attended her GP for a particular impairment she said that treating professionals would say that they needed to deal with one issue at a time.[5]Part of the claimant’s case is that she had to reduce her shifts from fourteen to eight per month in June 2021 due to pain.[6]The claimant gave some evidence about her jobs; my understanding is that her jobs have included working as a nurse, a carer, a stunt person, a masseuse and an artist model.
Conclusions
[7]The relevant time is the time period when the claimant brings claims of disability discrimination, between April 2021 and 31 October 2021. Headaches[8]The claimant said that she was beaten around the head and neck in 1997 by three drunk men. She felt she had to keep working and does not appear to have had medical attention at the time. She was nauseous. Two months after the incident she sought medical attention because she was vomiting a lot.[9]The ongoing effect of this incident was that the claimant had headaches which were made worse by geomagnetic storms. These headaches, if untreated with painkillers, could continue for 48 to 80 hours and were accompanied by nausea. The headaches could occur for two to three consecutive days per month or up to seven days a month at times of high solar activity. She said that she suffered from headaches whilst working for the first respondent but would keep working. The lights and sounds in the ICU provoked symptoms.[10]When she had the headaches, the claimant was not able to look at light or screens. Talking caused pain. She took strong painkillers and practiced meditation. She would stay in a dark room or wear dark glasses when she was out. She could not eat or drink and the dehydration made her feel worse.[11]I noted various references in the medical notes to the claimant having migraines. There was a report of an MRI of the head which was done on 6 January 2021. The clinical indications were ‘History of significant head injury recurrent migraines. ? Post traumatic structural cause’. There were reported to be no significant abnormal findings. Neck injury[12]The claimant said that she had had two accidents involving her neck in 2012 and 2015. The pain in her neck recurred when she was ‘overloaded’. She said that she had suffered from a recurrence of this issue for eight months in 2018 and from July 2022 to the present day.[13]The claimant did not give evidence that she had neck issues in the time period covered by her claims.[14]There were no medical records before me relating to the claimant’s neck which post-dated 2018.[15]There was no medical evidence which suggested that the claimant’s neck problems from the past accidents and the episode in 2018 were linked in way which meant that they were likely to recur in 2021 at a point when she was not suffering from any symptoms. Left shoulder[16]The claimant first injured her left shoulder in a paragliding accident in 1993. She said that it later recovered but that symptoms recurred on occasions when she lifted something heavy.[17]The claimant said that she had injured her left shoulder again in the 2015 accident in which she injured her neck. The shoulder was painful for a year and she took diclofenac. She had physiotherapy. She could not sleep on her left side. She had some steroid injections in 2015 and says she declined an operation.[18]In March 2020, she said the shoulder became painful again and she once again had physiotherapy and a steroid injection. She described the problems as cyclical; she would have a minor improvement for a few months and then the shoulder would deteriorate again. She had pain when taking off or putting on upper garments, cleaning walls, lifting a medium sized shopping bag. Washing heavy dishes was a problem and she had given up her sporting activities. That year working in the ICU ward caused her some manageable pain.[19]In 2021 she said that she had chronic pain throughout the year, getting worse as she felt she was overloaded at work. She could not do her hobby of fishing often as it would cause the pain in her shoulder to become unbearable. She was taking diclofenac for the pain. There were occasions when she could not sleep properly because of the pain. The claimant said that in 2022 she had reduced the amount of work she was doing due to pain. She had recently attended a clinic in Spain with a view to further treatment.[20]There is a letter from a physiotherapist dated 8 July 2010 which says that the claimant was referred for physiotherapy after a traumatic fall in January 2010 causing neck and shoulder pain. She had had difficulties walking and running. After treatment she was 90% improved and able to work as a carer and walk and run with little problem.[21]The claimant had an ultrasound on the left shoulder on 26 January 2015. There is a physiotherapy referral dated 19 February 2020. The notes record that the claimant had previously been seen for adhesive capsulitis. The claimant had reported that she felt that the pain had started ‘years ago’. She felt she had to stop doing her stunt job due to pain. There was stiffness and ache on abduction past 90 degrees.
Relevant Law
[22]An ultrasound was carried out on the shoulder on 27 March 2020. The history records that the claimant had pain on and off for years which had returned in the last three months. There is an email from a physiotherapist setting shoulder exercises for the claimant on 16 June 2020 after a physiotherapy assessment that day which records a twenty-year history of problems and intermittent pain and flare ups over the years, with physiotherapy on and off over that time. The claimant had had two or three years without pain after a steroid injection five years previously. The pain had recommenced in November 2019 after the claimant was reaching to retrieve a rucksack from the rear of her car. The notes say that an ultrasound in March 2020 showed that she had calcific supraspinatus tendinopathy. She had had a steroid injection in the shoulder.[23]The claimant continued to have monthly physiotherapy sessions for the shoulder until November 2020.[24]In April 2021 the claimant had advice from a physiotherapist to restart rehabilitation of the shoulder. The notes say, ‘confirmed calcific tendinopathy’. ‘chronic, flare up after heavy lifting in ITU in Jan 2021’. It appears from notes that the claimant had desisted from her physiotherapy exercises for her shoulder due to the wrist problem.[25]It is relevant to note that the history recorded by a physiotherapist on 5 October 2022 describes shoulder problems going back 23 years. Looking at the notes over the years there is a consistent pattern of the claimant reporting the problem as a recurrent one which sometimes improved for a period of months or even years. When symptomatic, it appears the claimant was able to work but with pain and by taking sometimes very strong painkillers.[26]I mention that notes of an ultrasound and MRI scan in August 2022 recorded findings consistent with a variety of possible diagnoses on the left shoulder but I bear in bear in mind that these postdate the period of claim and that in assessing whether the impairment meets the test for disability, I am required to consider what was known at the relevant time and not subsequently. Both wrists[27]The claimant’s evidence about her wrists was that she had significant problems in both wrists in 2002 after injuring her wrists at work. She had had to stop working as a masseuse for a period. She said that the symptoms had recurred ever since when her wrists were overloaded at work, The left wrist was worst affected. The right wrist was perhaps 1 or 2 on the pain scale and she described it as manageable.[28]The left wrist would become swollen. She had a new injury in February 2021 at work in a different area of the left wrist, near the radio carpal joint. This had caused very sharp pain for 1.5 months. That pain continued to the present day when there was pressure on the left wrist. She said that she had lost her grip, could not pinch items properly, unscrew a jar lid or open a bottle of water. She said that she could not cook or clean properly at home or carry bags with her left hand and the wrist was very weak. She described in oral evidence that the left wrist was ‘hurting like hell’ in February to April 2021 and it was hard to work one-handed.[29]In terms of activities affected by the original injury, the claimant said that she could not support her body in bed with her left hand or rise from the bed using her left arm. She could not do sports. She said that the weakness and constant pain when she moved or lifted things or twisted her wrist ‘drives me crazy’.[30]A physiotherapy referral document dated 12 March 2021 recorded that after an accident three weeks previously the claimant had experienced wrist pain. There was no swelling but there was weakness in power grip and pincer grip. The claimant was dropping plates at home. There was weakness in thumb abduction and the claimant was unable to open jars and had difficulty managing patients at work.[31]There is an email dated 3 April 2021 from a senior sister attaching a referral form for the claimant to occupational health, this records that the claimant has symptoms of pain in her left wrist and a reduced range of movement in her left thumb and lower back pain on the right side.[32]The resultant report dated 14 April 2021 from a back care adviser records that the claimant was being referred for hand care due to her left hand and wrist pain. The low back pain, which was an exacerbation of a longstanding condition, was the subject of a GP referral for physiotherapy. The referral form recorded that the claimant had moderate symptoms and difficulties with work and that she was reducing her work hours due to pain. She was said to have chronic pain in the left wrist for 22 years, which started when she was working as a masseuse; she was able to tolerate this pain until her injury in February.[33]An occupational therapy report from 23 April 2021 records that after an incident at work at the end of February 2021, the wrist had swollen, mostly around the base of the thumb. Symptoms had been improving especially after resting but there was what appears to have been moderate pain when gripping objects such as water bottles. The claimant reported that she had pain and swelling in the dorsal aspect of the left wrist from her chronic problem when she overused the wrist. That happened regularly, almost every two weeks.[34]On 27 April 2021 there is a physiotherapy record which describes a chronic problem with the left dorsal wrist for 21 years and a problem with the radial aspect of the wrist from January 2021.[35]An occupational therapy record from 30 April 2021 records that the therapist was able to help with the newer injury to the left wrist but, for the chronic problem, the claimant would need to ask her GP to make a referral to an orthopaedic surgeon.[36]On 1 June 2021 there is a report from an occupational therapist which records that the claimant was referred on 14 April for a left wrist injury at work. The reason for the referral was ‘difficulty with tasks requiring fine hand movements and pincer grip’. The claimant had been doing exercises prescribed and overall pain in the dorsal aspect of the thumb base was improving. Further exercises were prescribed and a date set for review.[37]An occupational therapy report from 5 July 2021 records that over all the base of the thumb was better, the claimant only occasional mild pain when using the thumb for lateral grip or pinching with thumb and index fingers. The claimant was discharged from hand therapy.[38]Cross examined about this record the claimant said that she still could not squeeze properly at this point and could not open mineral water or pickles. There was an improvement as she could hold things, which she had not been able to do in March. She accepted that at this point there was only ‘light’ pain from the second left wrist injury but she still had the underlying wrist problem. She had an ongoing difficulty from the second injury in terms of lack of strength in relation to squeezing things which affected her jobs.
Discussion
[39]On 21 September 2021, there is a record of a GP appointment about the left wrist. This records the accident on February 2021. The claimant is said to have had pain, stiffness and weak hand grip which had improved by 50% after physiotherapy. She had been discharged from physiotherapy but had discontinued the exercises as they were too painful. She could do her jobs but could not lift heavy objects such as casserole dishes. She was concerned about worsening symptoms as the weather got colder. She said that the chronic issue in the wrist had been tolerable until the wrist injury in February. She was asking for a referral to a specialist.[40]There are a significant number of records in relation to the wrist in 2022. It is relevant to note that that they describe the wrist pain on the dorsum aspect of the wrist as ‘longstanding’ or chronic and the pain on the radial aspect as new ‘since trauma last year’. Documents from 2022 show that by this stage a ganglion has been identified in the left wrist by an MRI scan but these are outside the period of the claim. Heart[41]The claimant’s evidence was that she had felt irregularities in her heart beats since August 2021. This was occasional at first and she thought it might be caused by caffeine. She said that things got worse in September and October 2021 when she began to feel breathless as well. Her muscles felt weak like she was ‘made of cheese’. She reduced her home cleaning. She attended her GP in November 2021. She was very weak and breathless. She was only able to work a few bank shifts. She attended A & E and had an ECG. In December 2021 and January 2022 she was struggling to climb stairs and had to walk very slowly. Her husband was doing all of the housework. In April 2022, after she stopped her HRT pills, her heart started to feel better.[42]A referral form from the claimant’s GP dated 23 November 2021 records that the claimant was seen by her GP three weeks earlier with palpitations. The claimant felt like her heart was jumping in her throat. She had shortness of breath on exertion and felt very fatigued. She was very stressed at work. She did not have energy to do much, had not washed for three days and was not doing housework.[43]A text from the claimant’s GP on 24 March 2022 reports that her echocardiogram was reported as normal as was a CT scan of her chest, heart and lungs. She had fairly frequent ectopic beats which were common in the population and were not serious. They had not found any pathology to explain her shortness of breath.[44]In cross examination the claimant felt that her GP had been wrong about her heart symptoms. She said that she believed that the heart symptoms had been a side effect of her HRT. They stopped almost as soon as she stopped taking the HRT. Lower back[45]The claimant said that she had injured her lower back doing the high jump in 1987 and it had never recovered properly. She could only bend backwards to a limited extent and said that she had pain in her back every day since, at an intensity of between 2 and 9 on the pain scale.[46]Over the years she had had five or six incidents which she described as ‘leaving me on the floor and not being able to move even in 5 cm, for 30 min, and hurting me even when I was trying to breath very shallow’. When cross examined about those incidents, she unsurprisingly did not have a good recollection of exactly when they occurred, although she said the last time was after the incident in February 2021 when she also injured her wrist. She was unable to recall whether she had had such an episode during a period of exacerbation reflected in her medical records in 2018. Her sex life was affected by the issue and she had stiffness every morning which would take some minutes to resolve[47]There had been a significant exacerbation after difficulties in lifting a heavy patient in 2010. The claimant had had to give up work for a period as she was unable to bend for five or six months and even walking and sitting for long periods were painful.[48]In February 2021, she had a further significant exacerbation after lifting a patient. She said that it hurt her a lot up to the present day. She was taking painkillers. She could not do sports any more, even light jogging.[49]On 23 January 2018 there is a GP record for an appointment for low back pain. This recorded pain since the end of September 2017 which seemed to come on after horse riding. She could not do any sport and had put on weight. The pain was worse when bending or twisting; the claimant was using ibuprofen gel.[50]There is a physiotherapy referral in February 2018 which records that the claimant had had back pain since the end of September but had never had any consultation or previously seen a physiotherapist for this issue. There is a reference to falls as a teenager. Aggravating features are recorded as bending, hoovering, sitting or standing for over 15 minutes and ‘sit to stand’.[51]An MRI in February 2018 concluded that the claimant had minor degenerative changes. Physiotherapy records showed that the claimant was still doing exercises for lower back pain in July 2018 and the pain was improving.[52]A physiotherapy record from 25 September 2020 records that the claimant had damaged her lower back with ITU work.[53]When the claimant attended physiotherapy in April 2021 she reported that she had chronic back pain which had been exacerbated after heavy lifting in January 2021. She was prescribed exercises. The back care adviser who reported the claimant’s wrist issue reported that the accident had also exacerbated the claimant’s lower back pain, which was a long term condition. The claimant had been referred for physiotherapy for her back by her GP.[54]There are physiotherapy notes in 2022 which make reference to the claimant as having a long history of lower back pain after falling on a bar as a child. Legs[55]The claimant’s evidence was that she had a deep laceration in April 2015 to her left knee. She had sharp pain on bending and an effusion around the knee cap. This went on for over a year and interfered with most of the claimant’s sports.[56]The claimant had an injury to her right knee from jumping over a ditch in February 2021. She had sharp pain for five months which continued until the present date. She was unable to bend the knee or kneel. She limped slightly between February and April 2021. Walking was painful and she had to do some duties by bending her left leg only and extending her right leg out to one side.[57]It was put to the claimant in cross examination that this knee issue had recovered well within a year. She said that she still got a little pain in the knee, maybe 1 or 2 on the pain scale, for example if she jumped or did fast movements.[58]She also injured her right foot in an ocean-diving accident in 2015. This had resolved after three years.[59]An MRI of the claimant’s left knee in October 2015 was largely normal although there was a small joint effusion. There are further records of physiotherapy in 2015 and into 2016.[60]On 12 March 2021, a musculoskeletal service referral form records ongoing pain in the right knee, pain worse on standing from the floor and difficulty in bending and lifting objects due to pain.[61]Physiotherapy records from April 2021 refer to the claimant’s right knee pain which was described as ‘improving’. As at 9 April 2021, she had experienced 70 – 75% improvement in the knee symptoms and was able to sit on the knee. Premature menopause 60. The claimant said that she had gone through premature menopause in 2015 at the age of 42. This caused her to have a lack of energy; she would get tired after a couple of hours of work. Her physical activities were slowed down - lifting shopping bags, housework, climbing stairs. She had to stop her sports. She had a lack of libido and often intercourse was very painful. She had been prescribed HRT but found it caused weight gain, water retention and other symptoms. 61. A letter from a gynaecologist at a menopause clinic dated 30 September 2020 reported that intercourse was excruciatingly painful.[62]A letter from the claimant’s gynaecologist dated 19 May 2021 said that the claimant had had significant superficial dyspareunia (pain and dryness) for at least six years. She had tried HRT and pessaries without success. Intercourse was very painful.[63]A pelvic pain impact questionnaire dated 9 August 2021 recorded that the claimant’s pelvic pain had affected her energy levels ‘a little bit’, her mood ‘somewhat’, her sleep ‘not at all’, her ability to undertake physical activity ‘quite a bit’ and her sexual life ‘a great deal’.[64]A menopause clinic note from 24 November 2021 reported ongoing dyspareunia, palpitations and low energy.[65]The claimant was cross examined to the effect that her symptoms from premature menopause were limited to lack of libido and a painful vulva, both of which had an effect on her sex life only.[66]She said that was not the case; her lower energy levels meant she had to give up the eight sports she had had to do for her stunt work. That include cycling. The swelling of her vulva also caused pain when she was walking and working. Law Definition of disability[67]Section 6(2) of the Equality Act 2010 provides that a person has a disability if that person: - Has a physical or mental impairment - The impairment has a substantial adverse effect on that person’s ability to carry out normal day-to-day activities; - That effect is ‘long-term’. 68. ‘Substantial’ is defined in S.212(1) EqA as meaning ‘more than minor or trivial’. In considering whether there is a substantial adverse effect on normal day-to-day activities, the focus should be on what the person cannot do and not what he or she can do: Goodwin v Patent Office [1999] ICR 302, EAT.[69]Schedule 1, paragraph 2(1) provides that the effect of an impairment is longterm if it has lasted for at least 12 months, or is likely to last for at least 12 months, or is likely to last for the rest of the person’s life. When looking at whether an effect is ‘likely’ to last for at least 12 months, a tribunal should consider whether ‘it could well happen’: Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) [2009] ICR 1056, HL.[70]Schedule1, paragraph 2(2) provides that 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 it is likely to recur.[71]The assessment of whether a condition is 'recurring' or 'long term', or whether there is a substantial adverse effect must be made as at the date of the alleged discrimination and must not take into account anything only known or occurring after that time: All Answers Ltd v W [2021] EWCA Civ 606, [2021] IRLR 612.[72]A tribunal may, in a case where there is a dispute about the existence of an impairment, ‘start by making findings about whether the Claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and consider the question of impairment in the light of those findings’: J v DLA Piper UK LLP [2010] ICR 1052. It is good practice for a tribunal to state conclusions separately on the question of impairment and adverse effect, but the tribunal should not proceed to those conclusions in rigid consecutive stages.[73]An impairment must be treated as having a substantial adverse effect if measures are being taken to treat or correct it and but for those measures, it would be likely to have that effect: para 5(1), Schedule 1 Equality Act 2010.[74]The requisite effect on day-today activities may be established if there is an effect on normal day-to-day work activities even if there is none on activities outside of the job: Igweike v TSB Bank Plc [2020] IRLR 267, EAT[75]In Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, [2007] ICR 1522, EAT, Elias J said: ''… when assessing the effect, the comparison is not with the population at large. As paragraphs A2 and A3 [of the statutory Guidance then in force] make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.'[76]Where there is more than one impairment, a tribunal must ‘add up the component parts and see whether it amounts to more than individual parts taken separately’: Ginn v Tesco Stores Ltd EAT 0197/05.[77]I must have regard to the Statutory Guidance on Disability where relevant. I have considered in particular the following paragraphs: B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty. … C2. The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. 'A man experienced an anxiety disorder. This had a substantial adverse effect on his ability to make social contacts and to visit particular places. The disorder lasted for eight months and then developed into depression, which had the effect that he was no longer able to leave his home or go to work. The depression continued for five months. As the total period over which the adverse effects lasted was in excess of 12 months, the long-term element of the definition of disability was met. A person experiences, over a long period, adverse effects arising from two separate and unrelated conditions, for example a lung infection and a leg injury. These effects should not be aggregated.' D4 The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning D5 A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities. D6. Also, whether an activity is a normal day-to-day activity should not be determined by whether it is more normal for it to be carried out at a particular time of day. For example, getting out of bed and getting dressed are activities that are normally associated with the morning. They may be carried out much later in the day by workers who work night shifts, but they would still be considered to be normal day-to-day activities. D22. An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse effect on how the person carries out those activities. For example: '• pain or fatigue: where an impairment causes pain or fatigue, the person may have the ability to carry out a normal day-to-day activity, but may be restricted in the way that it is carried out because of experiencing pain in doing so. Or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time. (See also paragraphs B7 to B10 (effects of behaviour)); A man with osteoarthritis experiences significant pain in his hands undertaking tasks such as using a keyboard at home or work, peeling vegetables, opening jars and writing. The impairment substantially adversely affects the man's ability to carry out normal day-to-day activities. A man has had chronic fatigue syndrome for several years. Although he has the physical capability to walk and to stand, he finds these very difficult to sustain for any length of time because he experiences overwhelming fatigue. As a consequence, he is restricted in his ability to take part in normal day-today activities such as travelling, so he avoids going out socially, and works from home several days a week. Therefore there is a substantial adverse effect on normal day-to-day activities. Submissions[78]I have considered the parties’ submissions carefully but refer to them below only insofar as is necessary to explain my conclusions. Conclusions General[79]One argument put forward by the respondents was that the claimant had exaggerated symptoms and that the level of impairment she claimed was not borne out by her medical records. For example there was an appointment in 2016 where the claimant was reported as being ‘generally well’, which was said to be inconsistent with the various ongoing issues. It was submitted that she suggested that she had a heart condition when the medical evidence showed none and that she reported impairments for periods when there were no or few medical records. It was put to her that when she had investigations, the results of scans often did not show causes for the symptoms she said she had. It was also put to her that she was the type of person who attended medical professionals a lot. The fact that she attributed her headaches to solar events was also relied on by the respondents.[80]I did not conclude that the claimant was someone who exaggerated or invented symptoms: - I had no evidence that the claimant was a person who attended medical appointments more than was necessary. She is a woman now in middle age who has done jobs which are likely to have caused a fair amount of wear and tear; - I bear in mind that some conditions causing chronic pain are not detectable on scans; - Given the difficulty of remembering symptoms and restrictions over a very long period of time, I was not persuaded the claimant had exaggerated her symptoms at any particular time. She very frankly agreed that at times particularly symptoms were not severe and that pain was light. She said she had lower back pain every day but sometimes it was very much at the lower end of the spectrum; - Bearing in mind that the period 2020 /2021 was the height of the pandemic, it was unsurprising the claimant was not attending her general practitioner for some of her issues or that she was concentrating on those that were most acute at the time; - The fact that the claimant had unconventional explanations for her headache / migraine triggers did not seem to me to be any evidence that she did not suffer from headaches / migraines.[81]I consider the various conditions in turn. I compared the claimant with her impairments with what she would be like without those impairments. She was someone who clearly had enjoyed a high level of sporting activity and at the relevant times was unable to participate even in cycling or light jogging. Headaches[82]I was satisfied on her own evidence and the limited evidence contained in the medical notes that the claimant’s headaches were a long term condition.[83]The claimant did not give evidence of day to day activities she could not do at all when she had headaches but the gist of her evidence was that her working life was more difficult when suffering from headaches.[84]Mr Shellum had argued that the headaches were neurological rather than a soft tissue impairment. The claimant said by soft tissue, she had understood everything which was not connected with the bones. Ultimately, I concluded this semantic distinction was of no importance since the claimant had clearly referred to the headaches in her claim form.[85]Bearing in mind that the burden was on the claimant to establish that her impairments were disabilities, I was not satisfied that I had enough evidence to conclude that the headaches were a disability at the relevant time. I had no good evidence as to their frequency and duration during this period and only the broadest account of their effect on activities.[86]I did not find that the claimant’s headaches were a disability within the meaning of the Equality Act 2010 at the relevant time. Neck[87]There was no evidence that the neck problem was causing the claimant any symptoms in 2021 or was likely to recur. It therefore did not satisfy the requirement that it be long term.[88]I did not find that the claimant was disabled by reason of a neck impairment at the relevant time. Left shoulder[89]The claimant’s evidence and the medical evidence showed that the claimant had a chronic issue with her left shoulder over many years. The symptoms waxed and waned particularly as a result of treatment. I assume that the symptoms would have been more persistent had the claimant not had physiotherapy and steroid injections.[90]It is clear to me, given the history, that the claimant’s left shoulder symptoms, although not continuous, were likely to recur. Were they symptoms which at their highest had a substantial adverse effect on the claimant’s day to day activity and was that an effect which was likely to recur at the relevant time?[91]I concluded that looking in the round at the types of activities the claimant could not do or could only do with pain, as described above and bearing in mind her use of strong painkillers, there was a more than minor or trivial effect on the claimant’s day-to-day activities both during the exacerbation in 2021 and at earlier times when she had experienced exacerbation and that the history as at 2021 means that those effects were likely to recur.[92]The name given to the claimant’s impairment in the notes is calcific supraspinatus tendinopathy but in any event it seems to me appropriate to deduce that she had a left shoulder impairment from its effects.[93]I concluded that the claimant’s left shoulder impairment was a disability within the meaning of the Equality Act 2010 at the material times in 2021. Both wrists[94]It did not seem to me that the right wrist satisfied the test at the relevant time. The claimant reported only occasional mild pain. There was no evidence before me that any more serious symptoms from an earlier period were likely to recur.[95]The picture in relation to the left wrist was more complicated because of the two separate injuries / impairments. The injury which occurred in February 2021 seems to have resolved to state where it was only causing light pain within a few months.[96]I did not consider that the evidence which I had was sufficient to conclude that the underlying condition of the left wrist had a substantial adverse effect on day to day activities on its own, but I considered that it obviously worsened the effects of the claimant’s other musculo skeletal issues, in particular her left shoulder and her lower back. My conclusions in respect of the cumulative effect of the claimant’s impairments are set out below. Heart[97]The symptoms described by the claimant did not carry on for twelve months and I have no evidence to suggest that they were likely to carry on for twelve months at the relevant time in 2021 or were likely to improve and then recur.[98]I do not find that the claimant had a disability in relation to her heart at the material times in 2021. Lower back[99]I was satisfied that the claimant had a long term lower back impairment. This condition did not have a substantial adverse effect on the claimant’s day-today activities at times when the pain was only 1 or 2 on the pain scale.[100]The history showed that there were a number of exacerbations over the years. It seemed to me that the effect on the claimant’s day to day activities at these times was more than minor or trivial. The claimant had difficulties getting out of bed and substantial pain walking, sitting for long periods and standing for long periods as well as lifting medium sized objects.[101]It seemed to me that the history of the claimant’s lower back problems demonstrated that these more severe symptoms were likely to recur as at the relevant period in 2021. Taken together, the effects and their history amounted to an impairment.[102]I concluded that the claimant had a disability in respect of her lower back impairment at the material time in 2021. Legs[103]I did not find the claimant had a disability in relation to her legs. The left knee injury had long recovered by 2021 and there was no evidence that the effects were likely to recur. The right knee injury had ceased to have a substantial adverse effect on the claimant’s activities within twelve months. The right foot injury had recovered significantly before the events of this claim. Premature menopause[104]Ongoing effects of the claimant’s premature menopause had been continuing for over twelve months at the material time.[105]What was more difficult to decide was whether the impairment had a substantial adverse effect on the claimant’s day-to-day activities. I was not persuaded that I had sufficient evidence that the effects on the claimant’s energy levels or ability to walk and run caused by discomfort were substantial. She appeared to have had to give up sports due to the various musculo skeletal injuries so it was not clear that this was connected with low energy levels due to premature menopause. The effect on the claimant’s sexual life was clearly profound.[106]The Statutory Guidance makes no reference to effects on sexual life as an aspect of day-to-day activities. I canvassed the issue with the parties, but Mr Shellum was not aware of any helpful authority on the issue, in particular as to whether the effect on activities had to be one which could conceivably have an impact on working life. Subsequent to the hearing, I considered that some European cases might bear on the question, such as HK Danmark v Dansk almennyttigt Boligselskab and another case [2013] ICR 851, ECJ and Z v A Department C-363/12 [2014] IRLR 563,. The parties had not had the opportunity to address me on these authorities.[107]Given that a further open preliminary hearing has been listed to consider time issues and strike out applications, I concluded the most appropriate course was to permit any further representations the parties wish to make on the issue of whether the claimant’s premature menopause is a disability on its own or taken in conjunction with other impairments, to be made at the further open preliminary hearing. Cumulative effects[108]Looking in the round at the different impairments relied on by the claimant, I concluded that the left wrist impairment clearly contributed to the problems with day to day activities caused by the two impairments I identified as amounting to disabilities on their own. I was unable to reach a similar conclusion in respect of the other impairments. The right wrist at the relevant time was causing only trivial symptoms. The neck and leg problems were not active to any relevant degree at the relevant time. I had no evidence to suggest a cumulative effect from the headaches, taken with the other impairments. As to the heart, I could not conclude without medical evidence that the breathlessness and other symptoms the claimant experienced in addition to the palpitations were related to any heart impairment and in any event the duration of these symptoms was not long term within the meaning of the Equality Act 2010.
Conclusions
[1]The claim of discrimination because of race is dismissed for want of jurisdiction. It is not just and equitable to extend time.[2]The claim of discrimination because of religion and belief is struck out for want of jurisdiction. It is not just and equitable to extend time.[3]The claims of direct disability discrimination in respect of 8(a), age discrimination in respect of 18(c), and victimisation for detriments 29(c)(i) and 29 (d) are struck out under rule 37 because they have no reasonable prospect of success.
INTRODUCTION
[1]This hearing was listed to decide:(a) Whether some the claims should be dismissed because out of time(b) Whether some claims should be struck out under rule 39 as having no reasonable prospect of success(c) Whether a deposit should be ordered under rule 37 for any claim not struck out. Conduct of the Hearing[2]A list of issues had been drawn up following two earlier case management hearings. It is appended to this judgment.[3]Of the preliminary issues, the disability issue has been determined by Employment Judge Joffe.[4]Issues 2,3,4,and 5 are those to be determined today. The respondent had, pursuant to order, sent the claimant their skeleton argument for this hearing in very good time, on 21 April ,and the claimant had replied in writing on 6 May 2023. This early exchange was ordered so that the unrepresented claimant had time to think about the arguments.[5]There was a hearing bundle of 344 pages. This contained the pleadings and orders from earlier case management hearings, plus the skeleton arguments, the claimant’s witness statements, and medical information. There were also some emails about events mentioned in the claim and the claimant’s actions between the ending of employment and ging to ACAS for early conciliation. The claimant expressed concern that she had not seen this until 15 June, on her return from four weeks away from home. She said she had not wanted to read the electronic bundle when away, and had taken with her, a phone but not her laptop.[6]She was also alarmed by having been sent a substantial authorities bundle. I explained that this bundle was for reference. She was not expected to refer to it, and I might not need to read much of it myself, as the legal principles on time limit and striking out claims are not new.. Counsel for the respondent had a duty when posing an unrepresented claimant to draw legal points to the attention of tribunal that might be considered in her favour. Application to Postpone[7]At the start of the hearing the claimant asked for a postponement. She had hoped to be accompanied by a companion, Paul Skane, but he had told her yesterday afternoon that he was not able to come because he was moving his boat. In answer to questions, he is not a lawyer but an artist and human rights activist, and I understood that he was to be here for moral support. The claimant also explained that she had not been able to read the bundles until recently, because on her return on 15th June she had then worked two night shifts to earn some money, and after that she had been very tired. She had also been hoping other people could come with her today, but had not succeeded.[8]There was a short adjournment for the respondent to take instructions. They were that the application was resisted. This hearing had been listed on 17th March 2023. The case management orders had given her plenty of warning of the arguments for today. Documents had been exchanged on the 19th of May, and the claimant had asked for delivery of the hard copy to be postponed until the 15th of June because of her absence abroad. (The claimant agreed the time frame was arranged to accommodate her absence). Her health problems – a knee injury, and early menopause-were of longstanding and could have been anticipated. There had been much routine correspondence with respondents about his hearing and she could have asked for a postponement much earlier. This was the fourth preliminary hearing in this case. The claim had been presented in March 2022, and it did not yet have a final hearing. It needed to make progress.[9]I did not agree to postponement. The health difficulties were recurring problems and nothing new. She had had three months warning of the hearing. She knew when the hearing date was set that she was going to be away from 4 weeks. She had had plenty of notice of the arguments for today, as those documents had been sent before she went away. Almost all the documents in the bundle were items she had seen before. It was not fair to the claimant when they had come prepared to make their applications today, that they should be sent away. The age of the case was relevant -some of the events go back to 2020, and the claims are based on oral evidence, which does not improve with keeping. We were unlikely to get a final hearing date in a long case until mid 2024. Delay is bad for justice. Application to amend claim.[10]The list of issues is appended to this judgment. We went over the list of issues and how it was prepared. The claim form itself, with its attached grievance, is long, detailed, and unorganised. It was discussed in two earlier case management hearings, before Judge Snelson and Judge Grewal, and a list is attached to each of their case summaries. The claimant was taken aback that it had no indirect disability claim. She also said there had been more than one protected act in the vicitmisation claim. She had not raised this before this morning. She had not formulated what the list should say. In discussion I understood her to mean that when she was required to work in a cold workplace in 2020 without extra clothing, this was a requirement or condition which had a disparate impact on her because of her health conditions, in particular low blood pressure. She says she was told that everyone had to work in those conditions. Her particular fear was that she would develop cold or flu and therefore have to do a COVID test, to which she objected.[11]After hearing from the respondent I decided not to allow an amendment of claim to add indirect discrimination because of disability. Although the facts are fully pleaded already, a new head of claim would require some evidence on disparate impact, and some additional argument. In other relevant factors, it was about old facts. The claims and issues had already been discussed at two case management hearings and she had not mentioned indirect discrimination on either occasion. The respondent had already had to amend its response once after her she had given further information and the issues have been defined. She already had a claim of failing to make reasonable adjustments for disability in respect of these facts. Allowing an amendment at this stage afforded little extra advantage to the claimant, with many claims already before the tribunal, but would increase the costs available by respondents. Having regard to the balance of prejudice and the practical consequences of making the amendment as set out in Selkent Bus Company v Moore and Vaughan v Modality Partnership, it should be refused.[12]Later in the hearing the claimant mentioned that there was more than one protected act in the victimisation claim, but in discussion it was hard to discern what she meant or when this was. From her description, this appeared to be covered by the broad time period of the protected act, details which come from her further information. Because of the lack of clarity I did not take this as an application to amend. It is of course open to the claimant to make an application later if she wishes. The Respondents Applications[13]The claimant was called to give the evidence in her witness statement about why she presented the claim when she did, and she was questioned about it by counsel for the respondent.[14]I then asked counsel for the respondent to make her applications in separate points, and when she had spoken on each point I summed up the gist of her argument and asked the claimant what she wanted to say about that. Factual Summary[15]Having heard the evidence and read relevant documents for the period, I understand that when the claimant learned that she had not been successful in her application for one of the new fixed term contracts, she made a complaint, and was told by Owen, the educator, to take it her team leader, Jayne Holliday. Initially she understood that she must wait for a reply from the matrons before she could go to ACAS and present a claim, but it is clear that by mid- November 2021 she understood that she had three months in which to present a claim, and that she must go to a ACAS within that time. She got a reply from one of the matrons on 17th November, which asked her to be clearer about what she was saying, but the claimant did not write back. She had a discussion, which sounds as if it was with the ACAS helpline, and then set about looking for legal advice. She prepared a long account of what happened so that solicitors could understand what the case was about (there was an example in the bundle of a detailed account she had prepared on 5 January). Several said they were too busy. She used the Internet to search for solicitors to approach, Including asking the Law Society to refer someone in her area. She tried without success to go to a Citizens Advice Bureau. She did not think she could go to ACAS until she had consulted a solicitor because she would not know what to put on their form. She did speak to a solicitor later in January. He explained the deadline was the 19th January 2022, which had already passed, adding that as it was just two days she could maybe argue it in the courts.[16]The claimant started early conciliation on 23 January 2022. This was more than 3 months after she had been told on 21 October she would not get one of the new fixed term contracts. An early conciliation certificate was issued on 5 March. That gave her a month to present a claim. It was presented on 29 March 2023.[17]The claimant explained that during this period she was also busy completing an application for a DBS certificate which she had to do each year to be able to continue in employment as a nursing assistant.[18]Asked why she had not presented claims about earlier events, those in 2020 and the beginning of 2021, until her fixed term contract expired, she said that she was worried that if she complained she would not have her contract renewed. She agreed that at the end of August 2020 she had said she would like to sue all of them for saying she was breaking the law by not agreeing to vaccination, but had decided not to. On 16 September she was offered a job in an area where swabbing was not mandatory. She had been told on 22 September 2020 that she could continue working as normal whatever her vaccination status. After these three incidents, there is no claim for less favourable treatment until the October 2021 non-renewal of her contract.[19]She also agreed that her complaint of race discrimination, which s about the claimant being penalised for being late on shift in December 2020 and April 202 relied for comparison on Anita not being penalised for sleeping on shift in January 2021, and that she had considered at the time that was unfair discrimination because Anita was black and in her view managers turned a blind eye to black staff’s faults in case they were accused of discriminating.[20]She agreed that her contract, which initially ran from May to August 2020, had been extended to March 2021, and then to September 2021. The interview was for a new post, and took place on 19th October 2021. She learned on the 21st October that she had not succeeded, and complained about it on the 25th October. Her contract expired on 31st October 2021. Since then she has worked on the nursing bank, doing 6 to 8 shifts a month.[21]The respondent’s case on the pleadings was that they had only been able to secure funding for a limited number of unregulated staff (the claimant was not subject to regulation by the Nursing and Midwifery Council), fewer than the number whose fixed term contracts were expiring. They therefore invited all to apply and made a selection. The claimant was placed too low in the ranked results to be offered a new contract. She was one of six who were not offered a new contract. Are Claims out of Time? Relevant
Law
[22]The time limit for claims brought under the Equality Act is set out in section 123. A claim must be presented to the employment tribunal by three months from the act complained of. If the complaint is about conduct extending over a period, the three month starts when the period ended. The three months can be extended by going to ACAS for early conciliation before the time is up.[23]If a claim is out of time, the tribunal still has a discretion to allow it to proceed out of time if it is considered just and equitable. On whether it is just and equitable to extend time, in British Coal Corporation v Keeble (1997) IRLR 336, it was suggested that employment tribunals would find the list of relevant factors in the Limitation act illuminating, but in Abertawe Bro Morgannwg University Local Health Board v Morgan (2018) EWCA Civ 640, tribunals were told not to use Keeble as a comprehensive checklist, but to focus instead on the length of delay and the reason for it, and any other factor that might be relevant to why the claim was late. The burden is on the claimant and there is no presumption that time will be extended. As Ahmed v Ministry of Justice UKEAT/0390/14 explains: “It is for the Claimant to satisfy the Employment Tribunal that time should be extended. There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be extended. The Employment Tribunal is required to consider all relevant circumstances including in particular the prejudice which each party will suffer as a result of granting or refusing an extension. Relevant matters will generally include what are known as the “Keeble” factors.”[24]A tribunal may take into account when deciding what is just and equitable the fact that allowing an out of time act to proceed when that act is itself the end of a course of conduct some of which may be very old may be more prejudicial for that reason- Adediji v University of Birmingham Hospitals NHS Foundation Trust (2021 ICR D5.) It is also to permissible to weigh in the balance of prejudice the strength or weakness of the claim on the merits – Kumari v Greater Manchester Mental Health NHS Trust (2022), because there is less prejudice in not being allowed to pursue a weak claim.[25]For claims under the Fixed Term Regulations 2022, regulation 7 provides: Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning— (a)in the case of an alleged infringement of a right conferred by regulation 3(1) or 6(2), with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them; (b)in the case of an alleged infringement of the right conferred by regulation 3(6), with the date, or if more than one the last date, on which other individuals, whether or not employees of the employer, were informed of the vacancy. (3) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (4) For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (2)(a)— (a)where a term in a contract is less favourable, that treatment shall be treated, subject to paragraph (b), as taking place on each day of the period during which the term is less favourable; (b)a deliberate failure to act contrary to regulation 3 or 6(2) shall be treated as done when it was decided on. (5) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of paragraph (4)(b) to decide not to act— (a)when he does an act inconsistent with doing the failed act; or (b)if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to have done the failed act if it was to be done.[26]This is similar to section 123 of the Equality Act, but has no provision about conduct extending over a period. Instead, the regulations speak of “a series of similar acts or failures comprising the less favourable treatment”. Discussion - Time[27]The respondent asks the tribunal not to extend time in respect of the claims of discrimination because of race, discrimination because of religion and belief, and fixed term employee regulations.[28]In the race claim, the acts complained of precede by many months the nonrenewal of the fixed term contract. They are not alleged as any other claim of discrimination or victimisation. The comparison material is also old. The respondent will have to investigate matters which are now very old indeed in order to defend the claim. Respondent argues that as the claim was not entitled to be paid until she arrived at work there is no detriment, but this is a weaker argument, Anita, was not working when she was asleep, so the claim that white people who were East European were less favourably treated might be an evidential comparison, if it was not a material comparison. Taken overall, I conclude that it is not just and equitable to extend time for these events, and therefore for the race discrimination claim. The claimant is not explained why she did not present the claim before. Investigating an old matter, particularly as it relies on evidence which is unlikely to have been recorded in writing, does prejudice the respondent. Time limits have been prescribed for a reason, and claimant has not shown why prejudice to her is greater than to the respondent.[29]In the belief claim, items (a) (b) and (c), in August and September 2020 are all over a year old by the time she was interviewed for a post on October 2021. In the meantime she had had her contract twice extended. The claimant argues that because she dissented from that coded vaccination policy, she was marked down in the October 2021 assessment. Against the fact that she was able to work without impediment unvaccinated, with her contract twice renewed, this is improbable.[30]Taking the 2020 detriments by themselves, they are well out of time, they will require detailed investigation about what happened and why, requiring work and costs on the part of the respondent, and the signs are that the claimant did not consider them substantial detriment, because although she threatened to sue, she decided not to. Her threats suggest that she was considering legal claims at the time. If it is right that she was threatened with dismissal, which was never pursued, and if her belief was protected under the Equality Act (a point which will have to be determined), there may well be an injury to feelings. The only reason given for delay is concern that she would be treated unfairly for bringing a claim. It is more likely that she decided not to bring a claim she continued to work as before – whatever threat was made was not carried out. Weighing prejudice to the respondent against prejudice to the claimant, it is not just and equitable to extend time for the August and September 2020 detriments alleged as discrimination because of religion and belief.[31]The fourth action alleged as discrimination because of religion and belief is the claimant’s failure to be selected for one of the new fixed term contracts following her interview on 19 October 2022, a decision made known to her on 21st October. As complained of, this act is out of time, by three days. The weighting of the balance of prejudice shifts because the prejudice to the respondent of having to investigate an old claim is much less. Looking at why the claimant did not present a claim in time, the tribunal finds it important that by mid-November, well within time, the claimant had decided not to pursue her grievance, at any rate for the time being, but was instead seeking advice from ACAS, and then from solicitors and advice centres, about bringing a claim. This activity shows that she was aware that she could make a claim to the employment tribunal. It will also have taken her to the ACAS website where how to make a claim for early conciliation is simply and concisely explained. Both the website, and the experience of employment tribunals, suggest that claimants without advice are well able to find out that they have to fill in the short online form for ACAS, or telephone, to give details of their dispute, so as to obtain an early conciliation certificate. Her postponement application shows that she has a laptop and a mobile phone, so that she had the means to find information, even if in fact she hand wrote and posted the ET1 claim form to the tribunal. The detailed account that she wrote and emailed to a firm of solicitors 2 weeks before her time ran out shows that she was capable of doing this. The claimant did not say in terms that she was unaware of the time limit until she spoke to a solicitor, but there seems no reason why her ignorance was reasonable. The ACAS website and Citizens Advice Bureau website information is very clear about time limits - what they are, and what has to be done.[32]The claimant submitted that she had ongoing health problems in this period. However, they were persistent problems. They did not prevent her from continuing to work the same number of shifts on the bank as when a contracted employee -6-10 a month. They did not prevent her from approaching solicitors and advice centres or from writing detailed accounts for them of what had occurred.[33]It was argued for the respondent that allowing this claim out of time brings with it the events of August and September 2021, whether because the claimant seeks to prove a discriminatory course of conduct, or as background evidence tending to show her belief was a reason for not being selected in October 2021. Even if it is not a course of conduct, the respondent is obliged to investigate and provide its own account of these old events.[34]The third category which the respondent seeks to have struck out because there are out of time is the claim of less favourable treatment for being a fixed term contract worker. The detriments complained of occurred in May or June 2020, soon after the claimant started work. She was told that the hooded tops were only for permanent staff, as were lockers. These are substantially out of time. Even if, as negative actions, a decision has to be made when decided not to give fixed term staff hooded top or a locker, it is likely to be made during or at a stretch July 2020, which still places it well out of time. The claimant has not explained why she did not present a complaint about this before. These are the only fixed term contract claims, and discrete from all other matters. There is prejudice to the respondent in having to investigate what was said and done at the time, or whether it affected other fixed term contract staff. It will add to the costs of the hearing because of the time to present the evidence, and to make submissions about a separate set of regulations. It is not shown that it is just and equitable to extend time. Prospects of Success Relevant Law[35]Order 37(1) of the Employment Tribunal Rules of Procedure 2013 provides: At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— a. that it is scandalous or vexatious or has no reasonable prospect of success;[36]Striking out claims at a preliminary stage, before evidence has been heard, is a draconian measure, only to be taken in an obvious case. In any case where there is a “crucial core of disputed facts”, those should be decided after hearing the evidence, and not at some kind of “impromptu trial” based on pleadings and written statements, save where there is, for example, incontrovertible contradictory evidence in a document. In whistleblowing (public interest disclosure) and Equality Act cases, which are important in a democratic society, over and above the interest of the individual claimant, and particularly fact sensitive, tribunals should be especially careful – Anyanwu v South Bank University and another UKHL (2001)1;, Tayside Public Transport Company Ltd v Reilly (2012) IRLR 755; Ezsias v North Glamorgan NHS Trust (2007) IRLR 603. The tribunal must first decide whether there is no reasonable prospect of success and then whether to exercise discretion to strike out – Balls v Downham Market High School and College (2011) IRLR 21.; Hasan v Tesco Stores Ltd UKEAT/ 0098/16.[37]As an alternative to striking out, a tribunal can order a deposit to be paid as a condition of proceeding with any claim if it considers that it has little reasonable prospect of success. Rule 39 of the Employment Tribunal Rules of Procedure 2013, which concerns deposit orders. It states: Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or a argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”. The amount of the deposit is set having regard to the party’s ability to pay, and must not be so high as to bar access to justice; the real deterrent effect of a deposit order is the risk of paying costs. If at final hearing the claimant loses because of substantially the same weakness in his case as identified in the deposit order he is likely to have to pay the other party’s costs. Making a deposit order also requires the tribunal to take the decision in two stages,[38]Applications are decided on the basis of the pleaded case and available documents, without taking oral evidence. The tribunal should consider the prospects of establishing the case on the basis of what is pleaded, and may also take into account the party’s prospects of establishing the facts pleaded – van Rensburg v Royal Borough of Kingston on - Thames UKEAT/0095/07. A deposit order can have a chilling effect in what is largely a no-costs jurisdiction, and should not be done lightly, or bar access to justice in practice. The guidance to tribunals in Hemdan v Ishmail (2017) IRLR 228 is: “the purpose of the deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource, and unnecessary anxiety. They also occupy the limited time and resource of courts and tribunals that would otherwise be available to other litigants and do so for limited purpose or benefit”. Discussion[39]The respondent applies to strike out the allegations of reducing weekend shifts between May 2021 and October 2021, which are alleged as detriment because of direct disability, detriment because of age, and victimisation. It is argued that the claimant that these shifts were reduced at her request. For her, the relevance is that she could not cope with the workload because of her disability, so asked for fewer shifts. This is recorded by EmploymentJudge Grewal in her note of the preliminary the case management on 26 January 2023, noting the matter would be relevant if the claim for failing to make reasonable adjustments to disability succeeded.[40]A detriment is something that a reasonable person would consider a disadvantage - De Souza v AA 1986 ICR 51. Reduced weekend shifts could not be a disadvantage if that was what the claimant wanted. A claim based on detriment because of reduced weekend shifts is misconceived. It has no reasonable prospect of success.[41]For that reason, the claims of direct disability discrimination, 8(a) on the list of issues, and the claim of age discrimination in the reduction of weekend shifts, 18 (c) on the list of issues, are struck out for having no reasonable prospect of success.[42]On victimisation, the detriment of reduced weekend shifts, 29(d) on the list of issues, is struck out for the same reason.[43]The claim of not answering requests in March 2021 is struck out because the protected acts identified by the claimant occurred in Summer 2021, three months after this alleged detriment. Although the list of issues says she commented on the lack of Eastern European staff from May 2020, she has given no information on when or to whom these were made, even after being ordered to give for further information. If she cannot state this now, there is no reasonable prospect of her proving she spoke of this before summer 2021.[44]A separate decision on the deposit order application has been prepared. Employment Judge Goodman Dated 10 July 202311/07/2023 . . ................................................................................ APPENDIX LIST OF ISSUES INTRODUCTION By way of an ET1 lodged on 29 March 2022, the Claimant brought claims of:a. Direct disability discrimination;b. Failure to make reasonable adjustments;c. Direct age discrimination;d. Direct race discrimination;e. Direct belief discrimination;f. Victimisation;g. Automatic unfair dismissal on the grounds of whistleblowing;h. Detrimental treatment on the grounds of whistleblowing; andi. Detrimental treatment on the grounds of fixed-term worker status. It is accepted that the Claimant is of Eastern European nationality and was 49 years old at the date of bringing her claim. PRELIMINARY ISSUES TIME LIMITS 2. Are the claims relating to acts or omissions relied upon by the Claimant that occurred wholly before 24 October 2021 out of time for consideration by the Tribunal? 3. Do such acts/ omissions constitute part of conduct extending over a period for the purposes of EqA 2010 s.123(3)(a) which ended on or after 24 October 2021? 4. If so, is there any just and equitable basis upon which the Tribunal may exercise its discretion to extend the time limit for presentation of claims that occurred wholly before 24 October 2021? 5. If not, should these claims be struck out on the basis that the Tribunal does not have jurisdiction to hear these claims or that they have no reasonable prospect of success by reason of their being out of time? DISABILITY 6. Was the Claimant disabled within the meaning of section 6 of the EqA 2010 at the time of the alleged discrimination? The Claimant alleges that she is disabled by way of the following conditions:(i) Soft tissue problems; and(ii) Premature menopause. 7. If so, did the Respondent know, or could reasonably have been expected to know, that the Claimant was disabled at the time of the alleged discrimination, as alleged or at all? SUBSTANTIVE CLAIMS DIRECT DISABILITY DISCRIMINATION 8. Did the Respondent directly discriminate against the Claimant contrary to section 13 Equality Act 2010? In particular, it is alleged that the Claimant was subjected to the following treatment: a. Reducing the Claimant’s weekend shifts between 23 May 2021 and 30 October 2021; b. Pre-determining the result of the Claimant’s 19 October 2021 job interview; c. Lillian Davies overloading the Claimant with work in April 2021 by assigning her too many consecutive shifts with insufficient gaps for her to recover. 9. If the treatment occurred as alleged, was it less favourable treatment because of the Claimant’s disability, more specifically: a. Who is the relevant comparator? The Claimant relies on the other members of the HCA staff who did not suffer from her alleged disabilities. nothing to do with the Claimant’s disability? FAILURE TO MAKE REASONABLE ADJUSTMENTS 10. Were the Respondents obligated to make reasonable adjustments to accommodate the Claimant’s alleged disability pursuant to section 20 Equality Act 2010? The specific alleged reasonable adjustments are as follows: a. The removal of bulky items such as beds, big linens-cages from near main doors or passages; b. The removal of items or equipment from the premises and/or places they were not required to be stored; c. Not allocating the Claimant to big sectors of the ICU ward (for example, 2 bays together including their isolation rooms, or 1 bay including its isolation rooms plus all the other 5 isolation rooms in the corridor), and to limit the Claimant’s workload to 4-6 patients; d. Not re-organising the work-allocation of the HCAs for some of the shifts; e. Not reorganising the Claimant’s consecutive shift patterns during Covid. 11. Were such steps reasonable and, if so, when did it become reasonable to take any such step? 12. Did the Respondents fail to take any such reasonable step at the appropriate time? 13. Did the Respondents apply a provision, criterion or practice (“PCP”) which had the effect of putting the Claimant at a substantial disadvantage in comparison with someone without the Claimant’s alleged disability in the same circumstances? 14. The PCPs the Claimant relies upon are: a. The requirement that the Claimant roll patients and lift their legs during toilet and hygiene-care; b. Items and/or equipment being left near main doors or passages or other places they were not required to be stored; c. Allocation of the same number of patients and duties to all staff. d. Requiring staff to work on consecutive night shift patterns. 15. If so, did any of the alleged PCPs put the Claimant at a substantial disadvantage in comparison to persons who are not disabled? In particular, the substantial disadvantage alleged for each alleged PCP is that: a. The Claimant as a result of her disability struggled to navigate around bulky items/equipment and was injured; b. The Claimant struggled to complete tasks as a result of the Respondent allocating all staff the same number of patients and requiring them to complete the same duties; 16. At the time that each of the alleged PCPs were applied, did the Respondents know, or could they be reasonably expected to know, that the Claimant was likely to be placed at a substantial disadvantage by each alleged PCP? 17. Did the Respondents fail to make any adjustment(s) that it was reasonable to make that would have had the effect of removing or mitigating any disadvantage experienced by the Claimant as a result of her alleged disability? DIRECT AGE DISCRIMINATION 18. Did the Respondent directly discriminate against the Claimant contrary to section 13 Equality Act 2010 by treating her unfavourably as a person in an age group approaching 50 years old? In particular, it is alleged that the Claimant was subjected to the following treatment: a. The First Respondent failing to extend the Claimant’s contract; b. The Second and Third Respondents pre-determining the result of the Claimant’s 19 October 2021 job interview; c. The First Respondent reducing the Claimant’s weekend shifts and spacing them out in the period between 23 May 2021 and 30 October 2021; and d. Sarah Robinson and Natasha Manning overloading the Claimant with work on 28 October 2021 when the Claimant says she was required to operate half of the ICU alone, whilst 4 HCAs were assigned to work on the other half of the ICU. 19. If the treatment occurred as alleged, was it less favourable treatment because of the Claimant’s age, more specifically: a. Who is the relevant comparator? i. For 18(a)-(c), the Claimant says the relevant comparators are (i)Jacqueline Dadd (who the Claimant believes is around 63 years-old), and (ii) other HCAs who were younger than the Claimant. ii. For 18(d), the Claimant says that Jacqueline Dadd (who the Claimant believes is around 63 years-old) is the relevant comparator, and was more favourably treated as she had three younger HCAs around her on the day. b. Are there facts from which, in the absence of an explanation, a finding of discrimination could be made? c. If so, has the Respondent established an explanation for the treatment which is nothing to do with the Claimant’s age? 20. Has the Respondent shown that its alleged treatment of the Claimant was a proportionate means of achieving a legitimate aim? The Respondent relies on the following legitimate aims: i. Regeneration and opportunities for new members of the workforce; ii. Avoidance of inequitable allocation of premium pay shifts at weekends; and iii. Ensuring fair distribution of work and effective allocation of resources DIRECT RACE DISCRIMINATION 21. The Claimant identifies as being of Eastern European nationality. 22. Did the Respondent directly discriminate against the Claimant contrary to section 13 Equality Act 2010? In particular, it is alleged that the Claimant was subjected to the following treatment: a. On 29 December 2020, after arriving to her shift 10 minutes late to due to public transport delays, the Claimant’s lateness was recorded on her time sheet and her salary was cut; and b. On 22 April 2021, after arriving to her shift 15 minutes late due to public transport delays, the Claimant had her salary cut and her lateness recorded as her fault on the rota. 23. If the treatment occurred as alleged, was it less favourable treatment because of the Claimant’s race, more specifically: a. Who is the relevant comparator? The Claimant says the relevant comparator is Anita (the Claimant does not remember her last name), a bank-shift HCA who is from the BAME community. The Claimant says that she was disciplined for being late to work when Anita was not disciplined for sleeping on shift. nothing to do with the Claimant’s race? DIRECT BELIEF DISCRIMINATION 24. What is the Claimant’s belief or beliefs? The Claimant says her belief is: a. That the mortality from Covid-19 is almost two times less than that of the mortality of flu (types A, B and C); b. That Covid-19 is not that deadly; c. That a lot of media is corrupted and controlled by companies or individuals; d. That Covid-19 was designed to generate money and manipulate the public; e. People were used as ‘guinea-pigs’ for the development of biological weapons, and were ‘marked’ and injected with micro-chips, in order to be manipulated mentally and physically; f. That the Covid-19 vaccine is ineffective and dangerous; g. That matrons and the Trust have been lying to the staff that “according to the new law now the Covid self-testing is obligatory for all members of staff. 25. Is the Claimant’s belief protected under the Equality Act 2010? 26. Did the Respondent directly discriminate against the Claimant contrary to section 13 of the Equality Act 2010? In particular, it is alleged that the Claimant was subjected to the following treatment: a. She was required to self-test for Covid between June and September 2020; b. She was made to believe/was told that she would be dismissed because she refused to self-test for Covid; c. She was asked to resign in August 2020; d. She was not selected after a job interview on 19 October 2021 for a post. 27. If the treatment occurred as alleged, was it less favourable treatment because of the Claimant’s belief? More specifically: a. Who is the relevant comparator? The Claimant says the relevant comparators are Jacqueline Dadd (HCA), Dilruba Naher (HCA), Grace (the Claimant cannot find her last name), Israel Lire, Fernando Ruiz (HCA) and Nurses Rachel and Noriel and Senior Nurse Inez Martinez, who were given new contracts in about November 2021, when the Claimant was not. The Claimant says the relevant comparators never expressed any negative views about the vaccines. nothing to do with the Claimant’s belief? VICTIMISATION 28. Was the following a protected act carried out by the Claimant in accordance with section 27(2) Equality Act 2010?: a. Raising concerns about being the only HCA of Eastern European origin between 19 May 2020 and October 2021. The Claimant says she raised these concerns verbally to Sarah Robinson when they quarrelled in a side room in summer 2021, and to Sarah Robinson and Natasha Manning in a job interview on 19 October 2021. 29. If so, was the Claimant subjected to a detriment because she had carried out, or because the Respondent believed she had carried out, a protected act? The Claimant relies on the following detriments: a. The workload and attitude of Sarah Robinson, Natasha Manning, and Jayne Holiday towards the Claimant becoming worse after her conversation with Sarah Robinson in summer 2021. b. Delay in responding the Claimant’s following communications: i. Letters to her team leader,j. J. Holliday on 28 October 2021, 1 November 2021 and 20 November 2021. The letters related to a request to refer the Claimant to Occupational Health. ii. Text messages to J. Holliday on 4 August 2021 and 28 August 2021, and 5, 8 and 16 November 2021. iii. Letters to the Matrons Sarah Robinson and Natasha Manning on 8 February 2022 about delayed study leave payment; iv. Letter to Matron N Manning on 1 September 2021; v. Letter to Matrons S. Robinson, N. Manning and Marian Joven on 5 October 2021 ; vi. Letters to Matrons S. Robinson and N. Manning on 4 January 2022 and 25 January 2022. vii. Letters to Booking Team on 25 September 2021, 27 October 2021,and 22 January 2022. c. Lack of attention being paid to the Claimant when they stated they were in pain and needed assistance from other HCAs. The Claimant relies on the following: i. Communications with J. Holliday over two weeks in March 2021, requesting appointments to know when she could speak to her. The Claimant also says it was hard to get in touch with J. Holliday in August 2021 and that she was often on holiday. ii. In June or July 2021 the Claimant complained to Senior Nurse Sarah Robinson that there were no other HCAs assigned to the Claimant’s sector and the HCA on the sector was not assisting her. Senior Nurse Sarah is said to have not assisted the Claimant and to have, on the third time the Claimant approached her, discussed with her in a side-room that she could not change anything or hire more people in a discussion the Claimant says was unpleasant. iii. On 20 October 2021 the Claimant was working alone in the ICU and raised this to Marian Joven, Jaimie Vizhalayil, and Ines Martinez d. Reducing the Claimant’s weekend shifts in the period of time between 23 May 2021 and 30 October 2021. The Claimant says that Matrons Robinson and Gorham approved the shifts. e. Failing to renew the Claimant’s fixed-term contract. AUTOMATIC UNFAIR DISMISSAL (WHISTLEBLOWING) 30. Was the reason or principal reason for the Claimant’s dismissal that she made a protected disclosure? 31. The Claimant relies on the following alleged disclosures: a. Concerns raised to Lillian Davies verbally in the autumn of 2020 regarding a nurse changing the dressing of a wound with the same gloves used to clean the patient; b. Challenging decisions of senior nurses and/or matrons to put more tasks on the HCAs, such as pharmacy duties, including: i. on 16 June 2021 verbally and on 16 or 17 June 2021 in a letter challenging Sarah Robinson about giving Pharmacy Duty to HCAs; ii. on 19 October 2021 verbally challenging Caoimhe O’Dwyer for giving her a task the Claimant says was normally done by Porters; c. A letter dated 5 October 2021 to the Second Respondent, Third Respondent and Marian Joven informing them of 4 boxes of ready to use syringes and 25 loose syringes being found in bays 12- 15 of the pharmacy room which expired in January, April and July 2021; d. Letters sent on 4 January 2022 and 25 January 2022 to the Second and Third Respondents informing them of machinery being kept in the toilets of Bays 17-21 and 27-32; e. Verbally alerting nurses in charge of Bays, namely Salina (the Claimant does not know her last name, but describes her as from Indian origin with long hair), Sarah Robinson, Annie (the Claimant does not know her last name, but describes her as from the Phillippines), Senior Nurse Joven, Matron Davies and Team Leader Jayne Holliday, and other nurses on shift in September, October and December 2020, and January, April and June 2021 of machinery being kept in the toilets of Bays 17-21 and 27-32. The Claimant does not remember specific dates; f. Verbally raising multiple times between May and August health and safety issues and danger as a result of the cold. The Claimant does not remember specific dates aside from the period between 23 May 2020 and August 2020; and g. Raising that fixed-term workers were not properly protected from cold compared to permanent staff, to Lillian Davies in July 2020 and to multiple other people during the period May 2020 to August 2020 (including Sarah Robinson, Claire Goram, the technicians, and others). h. Raising that expired Enoxaparin was in the pharmacy with her team leader and a nurse in charge on 5 October 2021. 32. Do the matters set out at 31(a) – (g) above, separately or cumulatively, amount to a disclosure of information? 33. Did the Claimant reasonably believe that the above matters tended to show one of more of the following The Claimant alleges that she reasonably believed the above matters tended to show: a. That a criminal offence has been committed, is being committed or is likely to be committed; b. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject; and/or c. That the health or safety of any individual has been, is being or is likely to be endangered. 34. Did the Claimant reasonably believe that the above matters were in the public interest? 35. Did the Claimant make the above disclosures to her employer or another responsible person? FIXED-TERM EMPLOYEES (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS 2002 (‘FTER 2002’) 36. It is accepted that the Claimant was on a fixed term contract under FTER 2002. 37. Did the Respondent treat the Claimant less favourably than it would treat a comparable permanent employee by: a. On one of the day-shifts in June 2020 Matron Davies telling the Claimant that ‘fluffy tops with hoods’ are just for permanent staff; and b. Not providing the Claimant with a locker. 38. Can the Respondent objectively justify the alleged unfavourable treatment? 26 January 2023[1]These reasons should be read in conjunction with the Reasons for my Judgment in these proceedings sent to the parties on 27 March 2023. In that Judgment I concluded that some of the claimant’s impairments amounted to disabilities within the meaning of the Equality Act 2010 and others did not. I did not decide whether the claimant’s impairment of premature menopause amounted to a disability because, subsequent to the hearing, I considered that some European cases might bear on the question: HK Danmark v Dansk almennyttigt Boligselskab and another case [2013] ICR 851, ECJ and Z v A Department C-363/12 [2014] IRLR 563.[2]I made factual findings that the only substantial adverse effect of this impairment, on the evidence I was presented with, was to the claimant’s sexual life.[3]I invited written submissions from the parties on the authorities.[4]The respondent’s submission was, in brief, that in Z v A Department, the ECJ held that the definition of disability in the Framework Directive was limited by the scope of the Directive itself: 95 ... the concept of 'disability' within the meaning of Directive 2000/78 is to be understood in relation to the possibilities for that person to work, and to exercise a professional activity. This approach appears to be consistent with Case Number: 2202174/2022 the aims pursued by the Directive, namely, to combat discrimination in the specific context of employment and, consequently, to enable a person with a disability to have access to and participate in employment. 96 In other words, because of the inherently contextual nature of disability, the issue of what constitutes a disability for the purposes of Directive 2000/78 ought to be examined on a case-by-case basis in light of the rationale underlying that legal instrument. In consequence, the issue is whether the impairment in question constitutes - in interaction with specific barriers, be they physical, attitudinal or organisational - a hindrance to exercising a professional activity.[5]The disability provisions of the Equality Act 2010 implement provisions of the Framework Directive and the Equality Act 2010 continues to be interpreted in accordance with EU Law pursuant to sections 2(1) and 6(3) of the European Union (Withdrawal) Act 2018.[6]The claimant sent some documents which related to the factual findings I had already made. I am afraid I was unable to take into account any further evidence , as the opportunity to present evidence was at the hearing on 17 March 2023 when the respondent had the opportunity to cross examine the claimant and make submissions about the evidence..
Conclusions
[7]I concluded that the respondents were correct in their submission that the effect of the authorities is that for an impairment to be a disability, there has to be a potential impact on the person’s participation in professional life. Although the effect of the impairment of premature menopause on the claimant’s sexual activities was significant in relation to her private life, it had no effect on her professional life.[8]For these reasons, read with the findings in my earlier Judgment, I concluded that the claimant’s premature menopause was not a disability within the meaning of the Equality Act 2010, whether taken on its own or in conjunction with her other impairments,