Ms K Heatherington v CB Ventures Ltd: 2204952/2020
EMPLOYMENT TRIBUNALS
Case No 2204952/2020
Between
Ms K Heatherington v Responden t: CB Ventures LtdClaimantCB Ventures LtdRespondent
Before
Employment Judge SharmaDate 20 May 2022
JUDGMENT
OF THE PRELIMINARY HEARING In relation to the issue of disability and a specifically whether the Claimant’s shoulder injury amounted to a disability at the relevant times (9 March 2020 to 15 June 2020) under Section 6 Equality Act 2010, it is this Tribunal’s determination that the Claimant's shoulder injury did amount to a disability at the relevant times under Section 6, Equality Act 2010. 1 of 14 Employment Judge Sharma: 16 May 202117th May 2021. For the Tribunal: 2 of 14 EMPLOYMENT TRIBUNALS BETWEEN Claimant: Ms K Heatherington v Respondent: CB Ventures Ltd Heard at: London Central Employment Tribunals, by Microsoft Teams On: Friday 14th May 2021, 10.00am Before:
REASONS
FOR RESERVED JUDGMENT OF THE PRELIMINARY HEARING Purpose of Preliminary
HEARING
[1]This preliminary hearing was listed to determine the issue of disability; specifically, did the Claimant’s shoulder injury amount to a disability at the relevant times (9 March 2020 to 15 June 2020). The burden of proof is upon the Claimant to show that she is disabled.[2]The Respondent has conceded the Claimant, having a disability arising from her asthma.[3]In making my decision, I took account of the evidence provided by the Claimant who gave evidence having affirmed, the extremely helpful submissions of Ms. Bewley for the Claimant and Ms Winstone for the Respondent (the key points of both submissions of which I summarise in paragraphs 19 and 20 below and I also took account of those pages of the bundle of documents comprising 455 pages to which I was taken.
Findings of Fact
[4]On 9 March 2020, the Claimant suffered an injury at work to her right shoulder as a result of a fall outside.[5]The Claimant is right- handed. 3 of 14 6.On 11 March 2020, the Claimant was diagnosed with an un-displaced right shoulder greater tuberosity fracture. The shoulder is a ball and socket joint. She had fractured the outside of the ball part. I find that a fractured shoulder is an impairment. There is no statutory definition of a physical impairment. In College of Ripon and York St John v Hobbs 2002 IRLLR 185, it was held that a person has a physical impairment if he or she has something wrong with them physically. I find that on this basis, a fractured shoulder is a physical impairment. 7.In examination in chief, the Claimant was taken to her patient information sheet (121) which informed the Claimant that “the shoulder joint does not respond well to being injured and longstanding stiffness is often inevitable.” On the longstanding stiffness, the Claimant explained how “I have stiffness in the morning, I cannot brush my hair, the top of my arm aches and I struggle to pull the quilt up, if I have to move my right arm then I have to move it with my left one”[8]The medical notes of 3 Aug 2020 (158), recorded that the shoulder was getting better and that the Claimant was doing strengthening exercises regularly. She still has difficulty using her iPad for a long time. She had 3 / 4 full movement and there was shoulder pain post fracture. She was advised to increase the weight of the water bottle beyond 100ml to improve her strength. This she confirmed she did not do. 9.On 24 August 2020 (159), the medical notes recorded that her shoulder was getting better and there was almost full movement, there was pain here and there and the pain she received while turning in bed was manageable. The shoulder pain post fracture was being resolved. She was advised to continue exercising within the pain limits and was given education on selfmanagement and if her symptoms worsened, she was asked to call 111 or her GP.[10]In cross examination by Ms Winstone, the Claimant confirmed that she had not contacted 111 or her GP since August 2020 in relation to her shoulder, although she had contacted her doctor on other matters, for example a skin condition.[11]Both the doctor consultations and the physio were done remotely. In examination in chief the Claimant explained how she had 70% movement in her arm but she did not have strength in it.[12]On 12 May 2021, just 2 days before this preliminary hearing, she spoke with her doctor who wrote a “To Whom It May Concern” letter. The letter stated that although the fracture had improved, she was in pain and she had a limited range of motion. When she moves the shoulder, there is pain. She informed the doctor that she was not back to normal activities. Thus, the doctor referred her to an orthopaedic surgeon. The Claimant confirmed in examination in chief that this was a correct description of her health. 13.Ms Winstone put it to the Clamant that she had not contacted the doctor since August 2020 in relation to her shoulder (but had indeed sought medical advice on other matters). Yet 2 days before this hearing, she had sought a consultation where she informed the doctor that she was in pain and had a reduced range of motion and movement. Ms Winstone suggested that this was done to enhance her case before me at this preliminary hearing that her fractured shoulder was a disability as even up to 25 Jan 2021, she had not spoken to her doctor about her shoulder. Given the descriptions of the effects of the shoulder impairment provided by the Claimant in her impact statement, Ms Winstone questioned why she would not go to the doctor as it was all extreme. 4 of 14[14]Ms Winstone also put it to the Claimant that the reason why she was suffering was because she was not doing her exercises. The Claimant stated that she was doing her exercises. 15.The Claimant stated that she had spoken to her doctor a few weeks agon prior to 12 May but she had continued to do her exercise. After the accident she had all the effects described in the impact statement but it has got better since then. She had improved within 8 weeks of the accident and movement had started.[16]In relation to the entry in the medical notes of 3 Aug 2020, it records the Claimant's shoulder getting better although there was difficulty in holding the iPad for a long time. She was asked to increase the weight of the water bottle to increase the strength. Ms Winstone put it to the Claimant that this medical entry suggested she was getting better but this was in conflict with her impact statement. The Claimant stated that some of the statements in her impact statement related to her condition after the accident happened and some were still are ongoing.[17]To understand the effects of the impairment on the Claimant and to understand which effects were still continuing and whether these were a substantial adverse effect, I requested that the Claimant go through her impact statement with me to identify the extent to which she could do the various activities. She gave the following evidence: -(a) She used to wash her hair every morning but now she can only do it on alternative mornings Holding the hairdryer is hard. She struggled much more for the first few months but now it is not as bad.(b) She still does not have a bath as she is scared that she will not be able to get out;(c) She still struggles in putting her t -shirts on and off. She cannot take her right arm across and the is an ongoing problem;(d) Sleeping on her right side has got a lot better. Her right arm is still stiff and she still has to rotate her shoulder to increase mobility;(e) Being unable to pull the quilt has eased in the past 6 weeks but prior to then, she could not pull the quilt up.(f) Even to this present day ,she cannot carry heavy shopping bags and has to take someone with her when she goes;(g) Even to this present day, she cannot hoover with her right arm;(h) Even to this present day, she can only iron a few items at a time; 5 of 14(i) Even to this present day, she cannot shake her quilt;(j) Even to this present day, she still struggles with cooking;(k) Even to this present day, she cannot pour anything which is full like a kettle or a jug;(l) Even to this present day, she cannot lift a weight of more than a 100ml water bottle;(m) Even to this present day, she cannot extend he arm beyond 70 degrees; (m) Even to this present day, she cannot hold her iPad for more than around 30 minutes without having to use a cushion for support on my shoulder, so it relieves the pulling (o) She can no longer bowl, an activity she enjoyed doing because of her inability to hold the weight of the ball and throw it forward; (p) Even to this present day, if walking a dog, she cannot hold the lead in her right hand; (q) Being unable to grab her seat belt lasted for 4-5 months after the accident but this has eased; (r) Being unable to adjust her driving seat lasted for about 6 months but her husband now uses another car so there is no need to adjust the car seat position; (s) Even to this present day, she drives with her right arm resting with her left arm carrying the weight of the wheel; (t) When she walks, she have to be very conscience; and (u) She is worried that she will not be able to hold her grandchildren when they arrive for periods of time[18]I make the following findings: - In relation to the issue of whether or not the Claimant’s shoulder injury amounted to a disability at the relevant times (9 March 2020 to 15 June 2020), I find that it was a disability at the relevant time for the following reasons: -(a) The Claimant had a physical impairment at the relevant times and the impairment has a substantial and long-term adverse effect on the Claimant's ability to carry out normal day to day activities; Impairment Condition(b) The shoulder injury is an impairment and thus the impairment condition is satisfied; 6 of 14 Adverse Effect Condition(c) During the relevant time, the shoulder injury affected and currently affects the Claimant’s ability to carry out normal day to day activities (D3 Guidance) and thus the adverse effect condition is satisfied. After the accident, the shoulder fracture adversely affected her and this adverse effect has continued for 12 months and beyond. This is demonstrated by her difficulty in not being able to wash her hair on a daily basis, not being able to have a bath, struggling to put on a t-shirt, not being able to shop alone, not being able to hoover with her right hand even though she is right-handed, only being able to iron a few items at a time, struggling to lift a saucepan and thus not being able to cook, not being able to partake in her sport (bowling) and having to adjust the way she drives. Substantial Condition(d) I find that not being able to do these activities is more than minor or trivial (s212.EA);(e) There are a number of activities which at the relevant time she could not do and she cannot do, so the cumulative effect of these constitutes a substantial adverse effect (B4, Code). I am required to focus on what the Claimant cannot do, not what she can do;(f) Since the relevant time and to date, she is having to avoid doing her sport (bowling), she is not able to bath, she is not able to cook (Appx 1, EHRC Employment Code);(g) Certain activities she is now doing are , since the relevant time, having to be done in a different way to the way she used to (for example, hair washing, dressing, shopping, ironing and hoovering): B3, Guidance;(h) The Claimant has had physio therapy and, based on her evidence, she is doing her exercises; if it was not for the physio therapy of if it was not for her exercises, her shoulder injury is likely to have a substantial adverse effect. It could well happen: Para 5 (1), Sch 1) B12, Guidance);(i) The patient information sheet informed the Claimant that long-term stiffness is inevitable. Further it was recorded in her medical notes that she needed to increase the weight of the bottle to increase her strength. Based on these, her inability to increase the weight and if she stops exercising leads me to conclude that there could be a relapse in her condition (B13, Guidance). Thus, I find that the shoulder injury has a substantial adverse effect;(j) The physiotherapy stopped because the Claimant had received the maximum sessions available to her on the NHS. Thus, this could not continue. It appears that even if she continued her exercises, this would not create a permanent improvement. Thus, on this basis, I find that the impairment will not cease to have a substantial adverse effect ((B16, Guidance). It is the stiffness that is causing the Claimant to experience the adverse effects by reason of not being able to carry out normal day to day activities. The physio therapy has already stopped. If the Claimant was to stop exercising, then in my view, the adverse effects she is experiencing are likely to continue and even get worse (C11, Guidance).(k) In my determination the effect of the impairment is long term. 7 of 14(l) The accident which caused the un-displaced shoulder greater tuberosity fracture took place on 9 March 2020.(m) As my findings set out in paragraph 17 above show, some effects of the impairment were present at the relevant times and are still continuing today, namely on 14 May 2021. Thus, the effects of the impairment have lasted at least 12 months. Thus, I find that the effects are long term.(n) What is causing the Claimant adverse effects and thus leading to her not being able to carry out normal day to day activities, is the stiffness. The patient information sheet informed the Claimant of the inevitable long-term stiffness. Based on the medical prognosis that the stiffness is long term, I find that the effect of the shoulder fracture is likely to continue in the near future.(o) I find that this is a long-term condition on the basis that if the exercise by the Claimant does not continue, then the Claimant's stiffness and the more adverse effects she was experiencing previously and those she continues to experience are likely to recur: Para 2(2), Sch 1, Part 1, Supreme Court Case of SCA Packaging Limited v Boyle, C11 Guidance,(p) I find that even though some activities which were extremely difficult for the Claimant immediately after the accident and are now not as difficulty e.g., sleeping on the right-hand side has got better, being able to grab her seatbelt has got better, adjusting her car seat, pulling the quilt has got better, this does not prevent the shoulder impairment being long term. It is not necessary for the effect to be the same throughout the period which is being considered for the ‘long-term’ element of the definition to meet. The Claimant has satisfied the long-term element of the definition of disability even though the effect of some of the day-to-day activities is not the same in severity: C 7 Guidance.(q) I share Ms Winstone’s surprise that the Claimant did not contact her GP about the pain after August 2020 and that the only time she did contact her doctor was 2 days before this preliminary hearing. This does not, however alter the fact that in my view, the shoulder impairment satisfies the statutory definition of being a long-term condition. I accept the Claimant's evidence that at the relevant times, she was suffering adverse impairment and to a degree this adverse impairment is continuing to this day, 14 months after the accident. I accept that she has been and is currently making adjustments in her life to manage the situation.(r) I find that it is irrelevant whether or not the Claimant was doing her exercises. Whether or not she has been doing these, for the reasons I set out above, the shoulder impairment falls within the statutory definition of an impairment. Counsels’ Submissions Ms Winstone’s Submissions[19]I summarise the key points of Ms Winstone’s helpful submissions: - (a) This is not a disability. There has been a cynical development of pain. The doctor’s letter of 12 May 2021 is indicative of this. (b)The Claimant did not seek help but she was discharged and told of full movement in Aug 2020. She was told to call her doctor or 111 if necessary (p122) but she did not do so. 8 of 14 (c) In May, then in Oct, Nov, Dec and Jan, she did consult the doctor but not about her shoulder fracture. (d) The physio examination (156) showed that she was doing well with her exercises and that she was improving with the stiffness and the pain. The physio assessment of 3 Aug 2020 (158) reported that her shoulder was getting better. The Claimant herself did not increase her weight exercise beyond the 100 ml water bottle. The 24 Aug 2020 report (p 159) reported that her shoulder was getting better, she was almost back to full movement and that there were aches and pains here and there but manageable. (e) The medical reports and the physio reports were thus in conflict with her impact statement. Her visit to the doctor 2 days ago indicated that she was trying to “load” her claim and this is not acceptable. (f) Was it likely to last for 12 months? No, based on the leaflet. There was no expectation that this would become a disability within a year. We are now here 14 months later. (g) Will this likely to last? She was informed (122) that any stiffness would settle if she exercised it. (h) In April, May and June, there was no indication that this would continue for more than 12 months. This is a common injury and she was told to take pain killers. It was not designed to last more than 12 months. Ms Winstone then made the following additional submissions after Ms Bewley’s submissions: -- (i) The physio is part of the treatment: Any broken bone requires physio: Para C11: (Guidance on disability states that treatment should be taken into account. Treatment which masks over something should be ignored. Physio does not mask it. It is part and parcel: of the treatment. In Aug 2020, she was almost back to normal. It is wrong to ignore the physio as it is likely to cure. Physio is not a mask it is part of treatment programme. Ms Bewley: Submissions[20]I summarise the key points of Ms Bewley’s submissions: -(a) She had fractured her shoulder in March 2020.Without a doubt this had a substantial impact during the relevant period of March 2020 to 15 June 2020.(b) Qsn Can it recur within the next 12 months? (i) In relation to the test for disability, the test is low. You are looking at “could it happen”. “Likely” means “could it happened?” 9 of 14 (ii) Given the fracture and the initial guidance that it can last 12 months, if you remove the physio, you cannot say that it will not happen. The test is low. (iii) The test is: looking at the relevant time, it cannot be challenged that it is likely to recur within 12 months (iv) On the question of whether or not it is possible that a substantial impact could continue for up to 12 months or more, Ms Bewley says yes; these fractures can lead to ongoing stiffness. Could it well happen? Yes. it could well happen and it has. (v) Could it happen for 12 months? If you take away the treatment, the physio, this could then have a substantial impact for 12 months. Even if you take account of physio, it could be a substantial impact. (vi) Not seeing the doctor and not being refereed to orthopaedic surgery shows it could well happen. Once you have a fracture when you are looking at the future, something could well happen. (vii) Has it caused problems? The Claimant's evidence has been consistent and clear. A point made against her was that there had been a drop to her shoulder (i.e.it was getting better). What has happened is, things have not got worse: she has 70% improvement and she has continued her exercise. She has managed ways to avoid it. She is managing to live her life but it is classified as a disability because of her weak arm. It is not overwhelming but it is a disability (viii)This is a physical fracture. She has symptoms and treatment. There is more than adequate evidence that the effects continued during relevant period and for 12 months thereafter. (ix) She has had a physio but there is no diagnosis to say she is fully better. She carries on doing her exercise. She has not invented anything. Her evidence should be accepted. (x) As the Boyle case shows, “likely: means “it could well happen "So at relevant time she was disabled.
The Law
[21]In making my decision, I took account of the following areas of law: the Equality Act 2010, the Guidance on the Equality Act 2010 and Appendix 1 of the EHRC Employment Code.[22]The law relating to whether or not a person has a disability is set out in Section 6 (1) and Schedule 1, Equality Act 2010, which provides as follows: - “A person (P) has a disability if: - 10 of 14 (a)P has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. 23.I need to consider whether the Claimant had a disability at all relevant times, namely from 9th March until 15th June 2020, namely the period of the alleged discriminatory act.[24]In Goodwin v Patent Office (1999) I.C.R 302, Morison J held that the following four questions should be answered in order and these are the 4 questions I have answered in making my decision: -(a) Did the Claimant have a mental or physical impairment (“the impairment condition”);(b) Did the impairment affect the Claimant's ability to carry out normal day to day activities (“. adverse effect condition”);(c) Was the adverse condition substantial (“substantial condition”); and(d) Was the adverse condition long term (“long term condition”). 25.In assessing whether the adverse condition is long term, para C12 of the Guidance provides that “a person who has had a disability within the definition is protected from some forms of discrimination even if he or she has since recovered or the effects have become less than substantial. In deciding whether a past condition was a disability, its effects count as long term if they lasted 12 months or more after the first occurrence or if a recurrence happened or continued until more than 12 months after the first occurrence. Substantial Adverse Effect[26]Section 212 (1) EA 10 defines substantial as more than minor or trivial. 27.The cumulative effects of an impairment should be taken into account when working out whether it is substantial. Para B4 of the Guidance provides that “An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to day activity in isolation. However, it is important to consider whether its effects on more than one activity taken together could result in an overall substantial adverse effect. 28.Appendix 1 of the EHRC Employment Code provides guidance on the meaning of substantial:” Account should be taken of where a person avoids doing things which for example causes pain, fatigue or substantial social embarrassment because of a loss of energy and motivation 29.The Guidance sets out a number of factors to consider including the time taken by the person to carry out an activity (B2), the way a person carries out an activity (B3), the cumulative effects of an impairment (B4) the effect of behaviour (B7) and the effect of treatment (B12)[30]B12 provides as follows: - The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The 11 of 14 Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch 1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs. 31.Para 5(1) of Sch 1 provides as follows: - An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a)measures are being taken to treat or correct it, and (b)but for that, it would be likely to have that effect. 32.Para 5(2) provides that:” Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. 33.B13 of the Guidance provides as follows: - This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1 34.Adverse effect on “normal day to day activities”: A tribunal is required to focus on what the Claimant cannot do, not what he can do.[35]B16 of the Guidance provides as follows: - Account should be taken of where the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement. It is necessary to consider whether, as a consequence of the treatment, the impairment would cease to have a substantial adverse effect. 36.C11 of the Guidance provides a follow: - If medical or other treatment is likely to permanently cure a condition and therefore remove the impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur.[37]D3 of the Guidance provides examples of “day to day activities”. “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education related activities, such as interacting with colleagues, following instructions, using a computer, driving, 12 of 14 carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. 38.Part 1, para 2 of Schedule 1 provides as follows: -(1) The effect of an impairment is long-term if— (a)it has lasted for at least 12 months, (b)it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 39.In the Supreme Court case of SCA Packaging Limited v Boyle, Lord Hope (para 42, same point made at para 51) opined that “likely” “refers to the kind of risk of an impairment recurring (“it could well happen”). He went on to opine:” “where someone is following a course of treatment on medical advice in the absence of any indication to the contrary, an employer can assume that without the treatment, the impairment is “likely” to recur. If the impairment had a substantial effect on the patient’s day –to day-life before it was treated, the employer can also assume –again in the absence of any contra indication- that if it does recur, its effect will be substantial”(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.(4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or not being, long-term.[40]C7 provides that It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example, activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. 41.Para C11 provides that: if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur. My Conclusion (a): Did the Claimant have a mental or physical impairment (“the impairment condition”)? Yes, this was not disputed that the Claimant had a shoulder injury. 13 of 14 (b) Did the impairment affect the Claimant's ability to carry out normal day to day activities (“. adverse effect condition”)? Yes, for the reasons I have set out in my findings. (c) Was the adverse condition substantial (“substantial condition”)? Yes, for the reasons I have set out in my findings. (d) Was the adverse condition long term (“long term condition”)? Yes, for the reasons I have set out in my findings.[1]Was the respondent in breach of its duty to give the claimant a written statement of initial employment particulars under s.1(1) of ERA?[2]Was the respondent in breach of its duty to give the claimant a written statement of particulars of change under s.4(1) of ERA?[3]If so, (provided the claimant has succeeded in her substantive claim) the Tribunal must make an award of the minimum amount of two weeks’ pay and consider whether it is just and equitable to make an award of four weeks’ pay, unless it considers that there are exceptional circumstances which would make an award or increase unjust or inequitable (s.38 Employment Act 2002). Contractual issues/determinations[4]What were the terms and conditions (including, without limitation, in respect of(a) her pay (salary/responsibility allowance),(b) her sick pay entitlement,(c) her duties and responsibilities and(d) her entitlement to notice of termination of employment) that the claimant was employed under at the material time?[5]What was the claimant’s contractual entitlement to salary/a responsibility allowance from 27 January 2020 until the point at which she should have handed over the respondent’s Fulham Store to Vlad Lazar? The claimant contends that she was entitled to receive a £32,000 basic annual salary (inclusive of what the respondent has asserted to be a £5,000 per annum responsibility allowance) in full over that period.[6]What was the claimant’s contractual entitlement to sick pay when off work sick due to an accident whilst at work over the period from 9 to 23 March 2020? The claimant contends that she should have received her full pay on an ongoing basis. The respondent contends that she was entitled to SSP only.[7]What were the claimant’s duties and responsibilities when covering the respondent’s Fulham Store, pending it appointing a permanent Store Manager to work there? Unlawful deduction from wages (s.23 ERA 1996)/ breach of contract[8]In the light of the above, did the respondent make unlawful deductions from the claimant’s wages and/or breach her contract of employment by:[9]Not paying her pay to her in full for the period from 27 January 2020 up to and including the point at which she should have handed the respondent’s Fulham Store over to Vlad Lazar.[10]Not paying anything in excess of SSP to her over the period from 9 to 23 March 2020 when she was off work sick due to an accident whilst at work?[11]Did any such deductions constitute a series of deductions, with the result that the limitation period starts to run from the date of the last deduction and/or was the failure to pay any of the sums a breach of contract which was outstanding on the claimant’s dismissal? Wrongful dismissal / notice pay[12]The respondent admits that it dismissed the claimant without notice or payment in lieu of notice. Was the respondent entitled to do so when and as it did for the reasons it gave in its ET3?[13]If the claimant is entitled to any notice pay, what is its value?[14]What was the reason or principal reason for the claimant’s dismissal? The respondent relies upon alleged gross misconduct.[15]If so, in the circumstances of the case did the respondent act reasonably in treating that reason as sufficient reason for dismissal? In particular:15.1 Did the respondent have reasonable grounds for believing that the claimant was guilty of gross misconduct at the time of the dismissal?15.2 Did the respondent properly and fairly investigate the incidence of misconduct as far as would be considered reasonable?15.3 Was the decision to dismiss the claimant summarily in all the circumstances of her case reasonable?[16]Did the respondent follow a fair procedure in dismissing the claimant? Without limitation and relying on all matters within the ET1, the claimant asserts that Colin Mclatchie should not have investigated the events leading up to her dismissal, that there was a lack of independence and that she should not have been suspended from work as she was barred from contacting staff and accessing work and did not have a fair opportunity to collect evidence.[17]Did the respondent follow its own internal policies and procedures?[18]Was the claimant’s dismissal fair and reasonable in all the circumstances (including the size and administrative resources of the respondent, the particular circumstances the claimant was working under as an Acting Manager at the time and the previous good conduct of the claimant)?[19]Was the dismissal tainted by discrimination or was it an act of discrimination such that the dismissal was not fair and reasonable in all the circumstances? Disability Discrimination Disability (s.6 Equality Act 2010)[20]The respondent has already conceded that the claimant had a disability arising from her asthma throughout the course of her employment within the meaning of s6 of and Schedule 1 to the EqA 2020.[21]The Tribunal, in its judgment dated 16 May 2021, found the claimant to have a disability within the meaning of s6 of and Schedule 1 to the EqA 2020 over the material times (9 March 2020 to 15 June 2020).[22]On what date did the respondent have, or ought reasonably to have had, knowledge that the claimant was disabled in respect of each such impairment? The claimant contends that the respondent knew of her of asthma on or around 12 July 2016 and of her shoulder impairment on 9 March 2020. Failure to Make Reasonable Adjustments (s.21 EqA 2010)[23]Did the respondent fail to make reasonable adjustments contrary to sections 20 and 21 of the EqA?[24]Did the respondent apply a provision, criterion or practice (PCP) with which the claimant was required to comply within the meaning of s20 of the EqA 2010? Are the following PCPs?24.1 Placing employees returning after time off directly into an investigation meeting.24.2 Not giving advance warning of an investigation meeting into alleged gross misconduct or potentially serious matters.24.3 Having investigations conducted by managers involved in the allegations made.24.4 Conducting investigation meetings in an accusatory rather than an open style.24.5 Suspending employees after an investigating meeting.24.6 Moving directly into a disciplinary procedure.24.7 Subjecting them to the disciplinary procedure.24.8 Not considering alternative employment for an injured employee.24.9 The convening of meetings during the investigation and disciplinary process at short notice.24.10 The convening of meetings during the investigation and disciplinary process in person during the pandemic and when in a national lockdown.24.11 The convening of those in person meetings with a substantial distance for an injured employee to have to drive to.[25]If so, did those PCPs put the claimant at a substantial disadvantage in relation to a relevant matter within the meaning of s20 (3) of the EqA in comparison with persons who are not disabled?[26]The claimant relies without limitation on stress affecting her asthma, being at a higher risk and suffering more anxiety in relation to her breathing difficulties in the pandemic and having great difficulty in travel and sitting for sustained periods of time due to her shoulder injury.[27]Did the respondent know (or ought reasonably to have known) that the claimant was disabled and was likely to be placed at a substantial disadvantage in comparison with persons who are not disabled?[28]If so, did the respondent take such steps as it is reasonable to have to take to avoid the disadvantage?[29]The claimant suggests the following without limitation:29.1 Giving reasonable notice of any allegations or investigatory meeting or disciplinary hearing.29.2 Not holding the investigation meeting on the claimant’s first day back at work.29.3 Giving the claimant reasonable time and means before any such meetings to collect any evidence and speak to other parties.29.4 Holding any meetings remotely.29.5 Holding investigation and other meetings in an open manner.29.6 Appointing an independent manager to investigate any issues.29.7 Fairly investigating issues raised by the claimant and/or any issues in the claimant’s favour prior to the disciplinary.29.8 Delaying the meetings.29.9 Looking for alternative work for the claimant not involving considerable lifting.29.10 Allowing the claimant to return to her residual job (prior to her period of acting up).29.11 Not dismissing the claimant.29.12 Allowing the claimant’s appeal. Direct Discrimination (s.13 EqA 2010)[30]Did the respondent treat the claimant less favourably than it treated or would treat a hypothetical comparator? The conduct relied upon is as follows:30.1 On 31 March 2020, suspending the claimant.30.2 On 3 April 2020, questioning the claimant’s fitness for work and her fitness to attend the disciplinary hearing due to her asthma cough and then terminating the meeting and instructing her to self-isolate and obtain a fitness for work certificate.30.3 On 6 and 7 April 2020, HR subjecting the claimant to negative correspondence concerning the above.30.4 On 23 April 2020, dismissing the claimant.30.5 On 15 June 2020, rejecting the claimant’s appeal against her dismissal.[31]If so, can the respondent show that the treatment of the claimant was proportionate means of achieving a legitimate aim?[32]Was any such treatment because of the claimant’s disability? Harassment (s.26 EqA 2010)[33]Did the following conduct occur:33.1 On 31 March 2020, in a disciplinary hearing, Jayne Baker questioning the claimant’s asthma and associated asthma cough and stating that she considered her to be unfit for work and unfit to attend the disciplinary hearing.33.2 On 6 and 7 April 2020, Clare Slater in HR subjecting the claimant to negative correspondence concerning the above.[34]Was the conduct related to the claimant’s disability?[35]Did the conduct have the purpose or effect of:35.1 Violating the claimant’s dignity?35.2 Creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? Discrimination arising from disability (s.15 EqA 2010)[36]Did the following arise from the claimant’s disability:36.1 Being off work for a period prior to 31 March 2020?36.2 Difficulty driving and/or being in a car for a long period of time?36.3 Difficulty sitting in meetings for a long period of time?36.4 Difficulty with manual lifting and tasks and therefore likely inability to carry on as before in her previous roles?36.5 A cough?36.6 More significant asthma symptoms if stressed?36.7 More stress and/or anxiety if suffering from asthma symptoms?36.8 A higher risk or fear of a higher risk to more serious outcomes if she caught the Covid 19 virus?36.9 A fear of unnecessary travel, in person meetings and/or public transport during national lockdown?36.10 Higher levels of anxiety during the pandemic?[37]Did the respondent subject the claimant to any of the following unfavourable treatment because of any of the above:37.1 Failing to inform the claimant of the issues prior to 31 March 2020 which were raised at that meeting?37.2 Removal from work WhatsApp groups?37.3 On and from 31 March 2020, suspending the claimant?37.4 From 31 March 2020 onwards failing to make any reasonable assessment of her health and its impact on work and the respondent’s processes?37.5 From 31 March 2020 onwards failing to fairly investigate the claimant’s contentions and explanations?37.6 On 3 April 2020, comments from Jayne Baker ?37.7 On 6 and 7 April 2020, negative correspondence from HR?37.8 Failing to fairly consider the claimant’s mitigation and arguments?37.9 On 23 April 2020, dismissing the claimant?37.10 On 15 June 2020, rejecting the claimant’s appeal against her dismissal?[38]If so, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim? Remedy Section 1 & s4 ERA
Remedy
[39]Should the Tribunal make the minimum award of two weeks’ pay or make an award of four weeks’ pay? Unpaid salary/responsibility allowance[40]What are the claimant’s losses for unpaid salary/responsibility allowance during the period from 27 January 2020 to the point of when the claimant should have handed over the respondent’s Fulham Store to Vlad Lazar? Unpaid sick pay[41]What are the claimant’s losses for unpaid sick pay for the period from 9 to 23 March 2020? Wrongful dismissal and/or contractual notice pay[42]What is the claimant’s notice pay entitlement?[43]In general, what loss has the claimant suffered as a consequence of her dismissal?[44]Has the claimant taken reasonable steps to mitigate her loss? Polkey
Issues
[45]In assessing compensation the Tribunal will need to determine whether, but for the dismissal, the claimant’s employment would or could have ended in any event. Contributory fault[46]Did the claimant engage in any culpable or blameworthy conduct and, if so, did any such conduct cause or contribute to the decision to dismiss her? Uplift to reflect any breach of the ACAS code of Practice[47]If there was any such conduct, whether, and to what extent, the basic and compensatory awards should be reduced as provided for in Sections 122 and 123 of the ERA 1996.[48]Did the Acas Code of Practice on Disciplinary and Grievance Procedures apply to the claimant’s dismissal?[49]If so, did the respondent fail to follow that Code?[50]If so, the Tribunal will need to determine whether, in the circumstances of the case, the failure to follow the Code was unreasonable (Sub-section 207A(2)(b) TU&LR(C) Act 1992) and, if so, whether it is just and equitable to increase any award to the claimant (up to a maximum of 25% as the claimant contends)? Unlawful discrimination[51]What is the value of the claimant’s claim for injury to feelings? In particular, which band of the Vento Guidelines applies to any such award?[52]Should the Tribunal make an award of aggravated damages and, if so, what is the value of such an award?[53]Is the claimant entitled to recover financial loss and, if so, what is the value of such financial loss (subject to any applicable quantum issues)?[54]Is the claimant entitled to damages for personal injury in addition to injury to feelings?
Evidence
[55]The tribunal heard from the claimant on her own account and from Jayne Baker (Managing Director), Clare Slater (HR Manager) and Niels Ladefoged (non-executive Director) on behalf of the respondent. There was a bundle of 823 pages and the claimant added further documents as exhibits to her witness statement, including a statement from Andy Crimmin, who did not attend the hearing. Facts The tribunal found the following facts on the balance of probabilities.
Facts
[56]The respondent operates a chain of three fast foods restaurants with branches in Fulham, Oxford and Cambridge. It is within the same group of companies as Smashburger and Dominos.[57]The claimant joined the respondent in July 2016 as Assistant Operations Manager, having been recruited by her husband, Ian Hetherington who was at the time Head of Operations. The claimant had approximately 30 years’ experience in the industry, having worked for McDonalds and having run her own hospitality business.[58]The claimant is asthmatic. There is no evidence that the claimant disclosed this at the time of her appointment but her manager was her husband who, presumably, was aware. There is no evidence that HR or other senior managers were aware and it was accepted by the claimant that she never took any time off due to her asthma.[59]The claimant was an ‘above store’ employee which meant that her contract of employment should have been issued at the start of her employment by her manager, in this case her husband. There is no evidence that a contract was issued.[60]The standard terms and conditions of employment include a provision that employees received SSP only for periods of sickness. Any other payments are purely discretionary.[61]The respondent’s business is providing food to the public and therefore food safety and health and safety standards are fundamental. The respondent engages an external consultant, VG Technical, which carries out unannounced quarterly audits of the premises. In addition, ‘coaching audits’ are carried out from time to assist in induction of new managers so they see the standards the business is working to and how to follow up from the audit. These are not generally scored.[62]Ian Hetherington left the business in January 2018 and the claimant continued to work for the respondent. Andy Crimmin was appointed Head of Operations in March 2018 and became the claimant’s manager.[63]The Store manager at Fulham in 2019 was OT. In March 2019, the store failed its quarterly audit with a score of 71.22%. Following the audit, OT put together an Action Plan (with the assistance of the claimant) which set out the problem identified, the corrective action, responsibility for corrective action and a column for signature once actioned. This was signed and annotated, some actions being taken immediately, others on an ongoing basis.[64]As a result of the failed audit, the claimant investigated and recommended disciplinary action against OT. He was issued with a written warning by Andy Crimmin.[65]In the Summer of 2019, the claimant covered management of the Cambridge store on an interim basis following the departure of the Store Manager.[66]In August 2019, the claimant asked Clare Slater whether she could get hold of the claimant’s contract. Clare Slater replied that she did not hold a signed copy of the contract as the appointment was dealt with by Ian Hetherington and not HR. She asked if she could help with anything to which the claimant did not reply. The claimant asked her manager, Andy Crimmin, what her notice period was and he told her it would be four weeks.[67]In December 2019, there was a quarterly audit at Fulham which scored over 90%. OT was still the Manager of Fulham at the time but he left on 24 December 2019.[68]In advance of his departure, and in view of the failure to recruit a replacement, Jayne Baker instructed Andy Crimmin to move the claimant in to hold the Fulham store. As store manager, the claimant (and the other store managers) would not have the support of an Assistant Operations Manager. The Operations Manager should have provided this support and senior management believed he was, but it now transpires that Andy Crimmin was away from the business frequently at the time for personal reasons and the claimant covered for him.[69]From early January 2020, to all intents and purposes, the claimant was the store manager at Fulham. She started receiving a responsibility allowance from 27 January 2020. This had been negotiated between Andy Crimmin and the claimant and approved by Jayne Baker. After a delay due to Andy Crimmin not filling out the necessary paperwork, the claimant received this additional allowance with effect from 27 January 2020 until the new manager took over at Fulham on 20 March 2020.[70]The claimant stated that she was not supported at this time, particularly with the need to recruit and the understaffing at the store. We note that HR offered to assist with recruitment and did take some steps to help her. The claimant regarded this as unwelcome interference and took exception to HR helping her in this way.[71]At about this time, the claimant was looking for jobs elsewhere although the respondent did not know this at the time.[72]On 27 January 2020 Colin McIatchie started his employment as Area Manager, taking over from Andy Crimmin. The first few weeks of his employment involved induction training. He introduced himself to the claimant in late January 2020 and she told him that she saw herself as having no future in the business.[73]On 18 February 2020, as part of Colin McIatchie’s induction, VG Technical did a coaching audit at Fulham, in the presence of the claimant. This was not scored but identified a number of failings including four safety critical failings. These related to falsifying freezer temperature records, incorrect water bath temperature record, incorrect cooking temperature records regarding chicken and a breach of jewellery policy (by the claimant herself). There were also other numerous non-critical failings. The audit concluded with a number of recommended actions.[74]Temperature checks need to be taken at the start of the day, before the early evening rush and in the middle of the evening rush. However, no temperature checks are taken of items which are not ordered.[75]The following day, on 19 February 2020, Colin McIatchie sent a message to the claimant and to the Fulham store email address addressed ‘Dear Team’. From the content of the email, it is apparent to us that the claimant was the intended recipient. He asked her to get a full action plan in place and to email it to him by Friday (21st), ensuring that she implemented what was needed promptly and to coach the team so that they understand the audit and the expectations from it.[76]On 19 February 2020, the claimant drew up an Audit Action Plan with headed ‘issues’, ‘actions’, ‘owner’ and ‘due date’. The due dates were either 29 February 2020 or ‘ongoing’. This document did not address all the issues in the audit.[77]She communicated the action plant to the staff on 22 February by putting the action plan document on Teams and putting a copy in the branch. She sent a photo of the audit and action plan folder via Whatsapp and asked the team to read the audit and implement the action plan.[78]On 24 February 2020, the claimant commenced a period of annual leave.[79]On 1 March 2020, the duty manager, Ed, took an order for Chicken Burger (grilled chicken fillet) and then ended his shift. Devon was the manager on shift at the time the order was fulfilled. He sent out the Chicken Burger with raw chicken. No temperature checks were taken that day.[80]On 2 March 2020 the customer raised a complaint about the raw chicken, both to the respondent and to Deliveroo, who had delivered the order. The claimant, as store manager, was asked to investigate the complaint. She had returned from holiday that day.[81]The claimant found out who was on duty at the time the order was dealt with and she checked the Operations Book where the temperatures are recorded. She also gathered information for VG Technical’s independent investigation and sent it to them. She contacted her team via Whatsapp to remind them of the importance of temperature checks and introduced a stricter protocol of checking the temperature of every grilled chicken and chicken burger item before it was sold.[82]She updated Colin Mclatchie just after midday on 9 March 2020 giving her breakdown of the incident on 1 March. This did not include any disciplinary investigation into her team members.[83]Shortly after sending this email, the claimant had a fall during the working day when she was outside. The fall happened on neighbouring premises. She was off work for two weeks with her fit note stating ‘Shoulder injury’. After the expiry of her fit note, the claimant was away on pre-arranged holiday.[84]Her return to work date was 31 March 2020. The previous day, she and Colin Mclatchie were in communication over Whatsapp arranging to meet on 31 March. They agreed to meet in Cambridge as it was easier for the claimant. She was not able to claim expenses for travel or parking at Fulham as it was her ‘home store’ and she did not want to travel on public transport, due to the emerging pandemic.[85]The claimant went into the meeting expecting a catch-up session following her absence. She had not been at work at the same time as Colin Mclatchie since mid-February, other than half a day on 9 March 2020 before her fall. When the meeting started, Colin Mclatchie asked how the claimant’s health was. She said that she was at the tail end of a cold and that her arm was hurting. He then said that he was conducting an investigation into the food safety issue that had arisen on 1 March and the follow up from the Coaching Audit. During the course of that meeting, she was asked about the Action plan following the Coaching Audit. She replied that she had put together an action plan and it was on the wall. She did not make any mention of a second copy in the office. When Colin Mclatchie looked for it in the store, he found an action plan attached to the back to the audit and pinned to a wall but this not been signed off or actioned.[86]Following the meeting, the claimant was suspended on full pay pending the investigation. On 2 April 2020, she was invited to a disciplinary meeting for the next day, 3 April 2020, at the Cambridge store to be conducted by Jayne Baker. The allegations were that she failed to follow a reasonable management instruction to complete a full action plan after the coaching audit and that she failed to ensure that due diligence and Health & Safety process had been implemented and followed.[87]The time of the meeting was changed from 3pm to 10am and the claimant confirmed her attendance. At the outset of the meeting, the claimant was coughing and had a roll of tissues with her. Jayne Baker was concerned about the claimant’s welfare and the welfare of the others around her. This was in the early days of the pandemic when there was no testing and a cough was one of the symptoms of coronavirus. As a result, Jayne Baker brought the meeting to an end and arranged for it to be held at a later date by video. At the end of the meeting, she wiped the surfaces with disinfectant wipes.[88]Following the meeting, there was an exchange of emails between the claimant and Clare Slater regarding the claimant’s fitness. She referred to her ‘asthma cough’ which she had mentioned to Colin Mclatchie on 30 March, and she said that the NHS website questionnaire indicated that she did not have coronavirus. She confirmed that she had checked the website again and a sent Clare Slater a screenshot which said she was unlikely to have COVID-19 as she had reported no high temperature and no cough.[89]The claimant raised her concern that the respondent was breaching the government guidelines by proposing an ‘in person’ meeting. The respondent’s business, as a food takeaway business, was not required to close at this time. Clare Slater assured the claimant that the business was allowed to operate but social distancing measures would be in place.[90]Between 8 and 11 April 2020, the claimant was removed from various work Whatsapp groups.[91]The disciplinary invite letter was sent to the claimant on 10 April 2020 proposing a meeting on 15 April 2020 via Skype. The meeting took place on 15 April 2020 over Skype. The claimant was accompanied by Queenie Lomboy, Store Manager at Cambridge and the note taker was Mark Rush.[92]At the meeting, Jayne Baker put the allegations to the claimant and invited her to make representations. She said that everyone was responsible for health and safety, risk and due diligence, not just her. She also said that the team was understaffed. She disputed that she should be responsible for the failures of the team and pointed out that she was on holiday at the time the undercooked chicken was sent out. Jayne Baker emphasised her view that the overall responsibility for the store was the Store Manager and it was up to the Store Manager to hold her team accountable and to manage processes.[93]The claimant accepted that there was a week in which she had not checked the Ops book and that she had not followed up a task she had given as part of Ed’s training. She also stated that she did follow up with team members over Whatsapp by reminding them to take temperature readings. She also accepted that she had worn jewellery in breach of the jewellery policy. When challenged about the action plan she said she thought she had sent it to Colin. She later accepted that she had not done so. We find that she had not sent it and knew she hadn’t. The claimant stated that 86% of the action plan was done and ongoing although Jayne Baker was unable to find any evidence to support this.[94]The claimant produced a ‘background paper’ which set out the timeline and contained the representations she made at the disciplinary hearing to Jayne Baker.[95]Jayne Baker investigated the matters which had been raised by the claimant by contacting Colin Mclatchie who answered her queries.[96]On 23 April 2020, Jayne Baker sent the claimant her outcome letter, summarising the meeting and the follow-up investigation. Her conclusion was that the claimant had failed to take any accountable action after the significant health and safety breaches in the audit. She failed to provide Colin Mclatchie with an action plan after the audit and failed to remedy the safety matters outstanding. The failings had led to a customer alleging food poisoning after being served raw chicken. Jayne Baker did not have the confidence, despite the claimant’s years of experience, that she was able to or even cared to deliver a safe working environment. The claimant was dismissed for gross misconduct with immediate effect. She was told she had the right of appeal.[97]The claimant appealed by way of email dated 25 April 2020 on the grounds that the decision was too harsh, her answers were not considered satisfactorily and that she was unable to access relevant Whatsapp messages. On 29 April 2020 she gave further details of her grounds of appeal.[98]The appeal hearing took place over Skype on 13 May 2020 and was conducted by Niels Ladefoged. The claimant presented her grounds of appeal, which she then sent to Niels Ladefoged after the meeting. He investigated after the hearing by speaking to Clare Slater, Jayne Baker and VG Technical. He concluded that there was no effective action plan in place, the staff had not been sufficiently retrained in a manner which instilled urgency and diligence regarding health and safety procedures. He did not accept that she had not had sufficient time in the Fulham store to implement procedures. He did not accept that she had been treated differently from other employees in a similar position. He decided that she had not presented him with sufficient or substantiated grounds to overturn Jayne Baker’s decision and he rejected her appeal. He confirmed this by letter dated 15 June 2020. The claimant did not refer to her asthma or her shoulder injury in the appeal hearing. The law The relevant law is as follows:
The law
[99]Section 1 of the Employment Rights Act 1996 requires an employer to provide a statement of terms and conditions of employment including the information listed in the section.[100]If the claimant is successful in the substantive claim and has not received a section 1 statement, the tribunal must award 2 weeks’ pay and can award up to 4 weeks’ pay. Direct discrimination[101]Direct discrimination means less favourable treatment in comparison to a comparator because of a protected characteristic. S. 13 EA 2010 defines direct discrimination as: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Discrimination arising from disability[102]Under s. 15 EA 2010(a) (A) discriminates against(b) (B) if: (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Duty to make reasonable adjustments[103]Section 20 EA 2010 sets out the general scope of the duty to make adjustments:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) the third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid… Harassment[104]Section 26 EA 2010 provides that A harasses B if:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B (1)(2) …(3) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[105]When considering whether a conduct dismissal is fair, the tribunal must follow the principles set out in British Home Stores v Burchell [1978] IRLR 379 affirmed by the Court of Appeal in Post Office v Foley [2000] ICR 1283.[106]Under Burchell, the tribunal must consider whether or not the employer had an honest belief that the employee had committed the misconduct, whether there were reasonable grounds on which to base that belief and whether the employer had carried out a reasonable investigation.[107]The tribunal must also consider whether a fair procedure was followed and whether the employer’s decision to dismiss was within a range of reasonable responses to the conduct. It is not for the tribunal to substitute its view for that of the employer. Determination of the issues[108]We find that in a number of instances (for example, the date she drafted the action plan, whether she intended to take action against the respondent for personal injury and whether the responsibility allowance was actually a travel allowance) the claimant’s evidence shifted and was therefore unreliable in relation to those matters[109]We find that the claimant did not receive a written statement of her terms and particulars of employment.[110]We find that the terms and conditions were as follows:110.1 The Responsibility allowance was payable from 27 January until 20 March when Vlad Lazar took over. This was part of her pay and therefore payable during holiday and subject to SSP during sick.110.2 Sick pay entitlement was SSP - any further payments were discretionary110.3 Job title was Assistant Operations Manager110.4 Notice entitlement was four weeks.110.5 The claimant’s duties at the time of her dismissal were the duties of a Store Manager Unlawful deductions from wages[111]The claimant alleges that she is owed Responsibility Allowance but has not calculated the amount of her claim. We accept the respondent ’s evidence that, having confirmed the calculations, this was paid other than during the claimant’s period of sickness. We therefore find that there is no outstanding Responsibility Allowance due to her.[112]The claimant has not set out any grounds of entitlement to be paid in excess of SSP other than the fact that her absence was due to an injury while at work. There is no obligation for an employer to continue paying salary at normal rates during absence in these circumstances. We also accept the respondent’s submission that, at the time, the injury was not considered significant, she was not off work for more than two weeks and her fit note did not suggest anything more serious than a shoulder injury. Disability discrimination – failure to make reasonable adjustments (section 20)[113]We find that the following were PCPs:113.1 placing employees returning after time off directly into an investigation meeting;113.2 not giving advance warning of an investigation meeting into alleged gross misconduct or potentially serious matters;113.3 suspending employees after an investigating meeting;113.4 moving directly into a disciplinary procedure;113.5 subjecting them to the disciplinary procedure;113.6 the convening of meetings during the investigation and disciplinary process at short notice;113.7 the convening of meetings during the investigation and disciplinary process in person during the pandemic and when in a national lockdown.[114]We find that the following were not PCPs:114.1 having investigations conducted by managers involved in the allegations made;114.2 conducting investigation meetings in an accusatory rather than an open style;114.3 not considering alternative employment for an injured employee;114.4 the convening of those in person meetings with a substantial distance for an injured employee to have to drive to.[115]The claimant conceded that those PCPs did not put her at a substantial disadvantage in comparison with person who are not disabled. The claimant has not suggested any way in which she felt disadvantaged in relation to these PCPs and, in essence, these are complaints of general unfairness rather than specific disability discrimination and we address them in our discussion of the unfair dismissal claim.[116]Not only has the claimant failed to provide any evidence of stress arising from asthma being a factor in these events, she has asserted that she was not stressed due to her asthma. The only complaint she has made relating to her asthma was that her ‘asthma cough’ was misinterpreted as a Covid cough. She objected the meeting being postponed due to her cough.[117]The only PCP which is relevant to her anxiety in the pandemic relates to ‘in person’ hearings. When her investigatory meeting took place in Cambridge, she had arranged to visit that site for a catch-up and made no reference to being anxious about the pandemic. She was invited to a disciplinary meeting in person which was adjourned shortly after it started. The claimant did not indicate any anxiety about an in person meeting. When the meeting was postponed, she wanted to go ahead. All subsequent meetings were held over Skype.[118]In relation to the shoulder injury, nobody, including the claimant, considered that it might be a disability. At no point did the claimant indicate she had difficulty in travel and sitting for sustained periods of time. The only travel after her injury was travelling to the investigatory and disciplinary hearings in Cambridge. She chose the venue for the first meeting and did not object to travelling for the second meeting. Direct discrimination section 13[119]During cross examination, the claimant conceded that her suspension dismissal and unsuccessful appeal were not connected to her disabilities.[120]In relation to the other conduct relied on, we find that Jayne Baker would have adjourned the meeting when an employee had a cough for whatever reason. It was not because the claimant’s cough was an ‘asthma cough’ that she took that decision. We remind ourselves that in the early days of the pandemic, there was limited information, guidance was frequently and changing and there was no general testing. It was a time of great uncertainty and wiping surfaces with disinfectant was central to the advice being given at the time. We therefore find that this is not an act of direct discrimination. We also find that this was not an act of harassment on grounds of disability.[121]The exchange of correspondence on 6 and 7 April related to asking the claimant to complete the NHS online questionnaire again and to send a screenshot of the conclusion. This was unrelated to the claimant’s asthma and was more a reflection of the respondent’s wish to comply with covid protocols and to protect the claimant and their staff. We do not find that this is an act of direct discrimination. We also find that this was not an act of harassment on grounds of disability. Harassment (section 26)[122]For the reasons set out above we find that the claimant was not subjected to harassment on grounds of disability. Discrimination arising from disability (section 15)[123]The claimant conceded that none of the items listed arose from her disability. This claim therefore fails.[124]We find that the reason for the claimant’s dismissal related to the claimant’s conduct.[125]Applying the test in BHS v Burchell and reminding ourselves not to substitute our view for that of the employer we find as follows.[126]We find that Jayne Baker genuinely believed that the claimant had committed gross misconduct by virtue of gross negligence in the management of the Fulham Store. We also find that she had reasonable grounds for that belief on the basis of the incomplete action plan, the lack of due diligence checks and the outcome of the underlying coaching audit.[127]We have considered the claimant’s submission that it was unreasonable to expect her to complete an action plan following the audit on 18 February 2020. We find that Jayne Baker was entitled to conclude a lack of attention to health and safety on the part of the claimant, illustrated by the fact she wore jewellery at the audit, which was not a surprise audit but a scheduled one.[128]She drew up an action plan the day after the audit but did not disseminate it to her team until three days later. She did not send it to Colin Mclatchie, despite being instructed to do so. The claimant accepted she hadn’t checked the Ops book one week. Her action plan was not implemented. Given the urgency of the problems identified by the audit, including four ‘critical’ issues, Jayne Baker was entitled to find that a failure by the claimant to address the issues immediately, with a dynamic action plan, implemented and signed off as completed was gross negligence.[129]We were taken to other action plans drawn up by other managers, from which we saw that the claimant’s action plan was deficient. It did not have any immediate dates for action, nor did it show what had been done, by whom and when. The other action plans we saw had initials and comments by each task. This was missing from the claimant’s action plan.[130]There are examples of the claimant’s team failing to check temperatures. Jayne Baker’s view was that it was the claimant’s role to create a culture of health and safety compliance and that she had not taken sufficient steps before or after the audit to achieve this. In the light of her long experience in the industry, Jayne Baker was entitled to conclude that the omissions were not due to a lack of understanding or a lack of support but due to a lack of engagement and action.[131]We find that it was reasonable for Jayne Baker to conclude that the claimant sending Whatsapp messages and putting an action plan on the wall was insufficient. The action plan did not capture all the issues raised in the audit.[132]We have considered whether the claimant can reasonably compare herself with OT who also went through the disciplinary process (following an investigation by the claimant) after a bad audit result. We find that a major factor in the claimant’s dismissal was her failure to implement an adequate Action Plan after a failed audit. In the case of OT, the only allegations related to the failings of the audit itself, not a failure to action the recommendations of the audit.[133]We find that the respondent properly and fairly investigated the incidence of misconduct, both in Colin Mclatchie ’s initial investigation and Jayne Baker’s follow-up investigation. We find no fault in Colin Mclatchie holding an investigatory meeting without prior warning and on the claimant’s first day back at work after sickness and holiday. There was no reason for him to interrupt her holiday or sick leave to deal with this, given that the total absence was three weeks. An employer is entitled to hold an investigatory meeting without prior warning but, in this case, he offered the claimant an opportunity to postpone which she declined. We also consider it was appropriate for Colin Mclatchie to do the investigation as the claimant’s manager. We also find that, in the context of gross misconduct allegations which were connected to a food safety incident, it was not unreasonable to suspend the claimant. We do not agree with the claimant that it was inappropriate for Colin Mclatchie to bring a suspension letter to the investigation meeting. If the claimant had satisfied Colin Mclatchie that there was a reasonable explanation, he would not have used the letter. Having the letter prepared did not oblige him to use it.[134]The claimant complains that she was disadvantaged by being barred from the office and accessing her team due to her suspension. She did not say to the respondent during the process that she needed this access and she has not identified what evidence she could have collected which would have helped her case. She suggested during her evidence that Ed had signed the action plan but she never said this at her disciplinary hearing, nor did she say that there was a signed plan in the office, as she told us during the hearing.[135]We find that a central element of Jayne Baker ’s decision is the claimant’s refusal to accept any responsibility and to look to pass blame to others. We saw this ourselves in the course of the hearing. She may have had a difficulty adjusting from a general role to having responsibility for a specific store, but she had carried out this role before, had trained other Store Managers and was receiving a responsibility allowance for carrying out the role.[136]In the light of Jayne Baker’s conclusions regarding the claimant’s culpability, we find that dismissal was within the range of reasonable responses. The claimant contends that her good record was not given sufficient weight as a mitigating factor. Jayne Baker ’s view was that her considerable experience in the industry and previous good performance were, if anything, exacerbating factors because she knew how to do the job and had chosen not to do it properly.[137]The claimant alleges unfairness because Devon and Ed were not disciplined despite them being on shift on the day of the uncooked chicken being sent out. It is accepted that Ed had gone home before the chicken was sent out. It is not clear whether Devon returned to work after that day. In any event, the claimant was their manager and took no steps to start disciplinary action. Although she went off sick on 9 March, she took no steps between 2 March and 9 March to take disciplinary action against these two individuals. She did not even raise a query about this with HR.[138]The claimant complains that she was not given the correct definition of ‘gross misconduct’. We do not understand how the claimant says this disadvantaged her. Jayne Baker considered the allegations and the evidence and reached her conclusion. The claimant had seen the handbook, having worked on it, and it is not clear to us what the basis of the unfairness alleged it.[139]We have considered the respondent’s disciplinary procedure and the submissions made by the claimant. We agree with her that a day’s notice of a disciplinary hearing is less than ideal. However, we do not agree that the claimant would have been frightened to request more time. We note that she attended without complaint, even when the meeting was brought forward to 10am. As we have set out above, in the event, the hearing was postponed shortly after it began although the claimant objected to this. There is no question that she had sufficient time to prepare before the reconvened meeting.[140]The claimant makes no allegations of unfairness in relation to the appeal.[141]We find that the claimant’s dismissal was not unfair and her unfair dismissal claim fails. Wrongful dismissal[142]We find that the claimant committed a fundamental breach of contract and is not entitled to notice or payment in lieu of notice. We base this finding on her failures to take action after the coaching audit, despite the fact that she was an experienced manager who knew what was required. She failed to accept responsibility and, by wearing jewellery on the day of a planned audit, displayed complacency and lack of leadership. These things taken together, in our view, constitute a fundamental breach of contract. Her constructive dismissal claim fails and is hereby dismissed.