Ms Elizabeth Davies v M & G Ltd and Mr Jon Parker: 2206389/2018

EMPLOYMENT TRIBUNALS

Case No 2206389/2018

Between

Ms Elizabeth DaviesClaimant

M & G Ltd and Mr Jon ParkerRespondent

Before

Employment Judge Paul Stewart, Dr Steve Jary and Mr David Kendall

In person for claimant

Ms K Balmer (instructed by Counsel) for respondent

Date 7 February 2020

JUDGMENT

The unanimous judgment of the Tribunal is that all claims should be dismissed.

REASONS

[1]In these Reasons, the first Respondent is referred to as “the Respondent” and the second Respondent, Mr Parker, by name.

[2]This hearing began on 16 July 2019. The Tribunal spent the morning reading into the case and the Claimant began giving evidence at 1400 hours. After confirming that her written statement was true, the Claimant was cross-examined from 1408 hours until 1617 hours with a comfort break of 10 minutes starting at 1504 hours. On the morning of the second day, the Tribunal received a letter from the Claimant who had not copied her letter to the Respondent. The Tribunal arranged for this oversight to be rectified. As a result of that action and some discussion about the contents of the letter, cross-examination of the Claimant resumed at 1023 hours. The Claimant continued to give evidence with two comfort breaks, at 1114 hours until 1125 hours and at 1204 hours until 1214 hours.

[3]At 1220 hours, the case was adjourned until 1400 hours as the Claimant asserted that she was “wiped out”. The Claimant applied for an adjournment of the hearing at this point because she said she was affected by the stress of giving evidence. The Tribunal refused adjournment because it did not seem to us that there would be any reduction in the stress the Claimant was experiencing at some future date. Indeed, it seemed likely that an adjournment to some future date would have the effect of subjecting the Claimant to a repeat of the stress that she had experienced up to this point plus the stress inherent in finishing her evidence. However, the Tribunal adjourned the case to the following morning out of a recognition that the Claimant was saying she was exhausted.

[4]On the following morning, 18 July, the Claimant renewed her application for an adjournment. She said she was running a temperature and was unwell. Her temperature, she said, was 37.5ºC. It had been 37.6ºC earlier. She wanted to have an adjournment to consult her doctor. The Tribunal heard from both parties but decided to refuse the application on the basis that: a) NHS websites consulted on the issue of body temperature asserted normal body temperature to be about 37ºC but to vary slightly. A person’s temperature may be 0.6°C above or below 37ºC, and can vary throughout the day, depending on the time of day and how active the person is. So, a temperature of 37.6ºC did not necessarily indicate an abnormal temperature. b) The allegations of discrimination being made against the witnesses for the Respondent were themselves causes of stress for those accused. An adjournment would mean that the allegation of discrimination would continue to hang over those witnesses for an extended period. c) The Claimant had her mother and her sister, a qualified solicitor, present to provide support and both were prepared to act as spokespersons for the Claimant. d) There was no guarantee that an adjournment would cause the Claimant to react less to the stress of a resumed hearing. e) On balance, the prejudice to the Respondent’s witnesses outweighed the prejudice that might be occasioned to the Claimant from continuing the hearing.

[5]When the Tribunal announced its decision, the Claimant asserted that, while she understood the difficult position the Tribunal found itself in, having to conduct a balancing act in respect of the Respondent’s rights against her own, she wished it to be known that her continued participation in the hearing was “under duress”. Further, she repeated her view that the continuation of the hearing would disadvantage her in particular given her view that her condition was the result of her disability.

[6]Thus, at 1205 hours, the cross-examination of the Claimant resumed until its conclusion at 1317 hours. After the luncheon adjournment at 1422 hours, we established that the Claimant did not wish to offer further evidence arising out of the cross-examination and the Tribunal had no questions of her. At 1425 hours, Ms Colette Ann Hope was called to give evidence for the Respondent and the Claimant’s cross-examination of her began at 1438 hours. As the Claimant was having difficulty in speaking in a normal voice, her sister, Ms Percival, assisted by listening to what the Claimant was effectively whispering to her and then asking questions based on what she had heard.

[7]We had a comfort break at 1527 hours which lasted for 11 minutes and another of 13 minutes at 1635 hours. The Claimant’s cross-examination of Ms Hope concluded 20 minutes later and, when some re-examination of Ms Hope was concluded, the Tribunal rose at 1710 hours.

[8]On the fourth day of the hearing, we heard evidence from Mr Jonathan Leonard Parker which commenced at 1018 hours and concluded at 1204 hours when we had our second comfort break before the luncheon adjournment. The first comfort break had started at 1110 hours and lasted for 15 minutes while the second lasted for 17 minutes before Ms Deborah Jane Mitchell started her evidence at 1221 hours. Her evidence was finished by 1303 hours and we adjourned for lunch at 1303 hours. Mr Michael Johnson was then called to give evidence on the resumption of the hearing at 1413 hours and his evidence was concluded at 1434 hours. Ms Percival again assisted the Claimant by articulating what her sister wished to question the witnesses on.

[9]At the conclusion of all the evidence, directions were given for the parties to provide their submissions in writing by 2 August 2019 rather than give them orally with provision for the parties to provide, if so advised, rejoinders on law by 9 August 2019.

[10]In the event, both parties provided written submissions but no rejoinders and the Tribunal met in chambers on 28 August 2019 and considered the submissions, reviewed the evidence and arrived at the conclusions herewith. The delay in rendering those conclusions into writing is the fault of the Employment Judge: an apology is both owed and proffered to the parties for the delay.

The Claims

[11]The Claimant worked for the Respondent for a period of some 6 ½ weeks starting 16 April 2018. She asserts that she had a disability and that the Respondent knew or ought to have known of her disability. Her claims are that: a) the Respondent failed to make reasonable adjustments to avoid the substantial disadvantages she suffered because of her disability contrary to section 20 of the Equality Act 2010, b) subjected her to discrimination arising from her disability contrary to section 15 of the Act, and c) victimised her contrary to section 27 of the Act. The fact that the Respondent sought to dismiss the Claimant forms part of the discrimination or detriment alleged in b) and c).

The Facts

[12]The background to the first Respondent’s recruitment of the Claimant as a temporary contractor starting 16 April 2018 was the 25 May 2018 deadline fixed for the implementation of the General Data Protection Regulation (EU) 2016/679 (GDPR), a regulation in EU law on data protection and privacy for all individual citizens of the European Union (EU) and the European Economic Area (EEA). The aim of the GDPR was primarily to give control to individuals over their personal data and to simplify the regulatory environment for international business unifying the regulation within the EU.

[13]The implementation of the GDPR had profound implications for businesses such as the first Respondent, an investment manager operating in both the UK and abroad. The first Respondent invests in, and manages, a wide range of assets including equities, fixed income and property on behalf of a variety of investors. As such, it is a controller of personal data and was required by the GDPR to put in place appropriate technical and organizational measures to implement the data protection principles.

[14]Prior to the implementation of the GDPR, the first Respondent had processes in place that were compliant with the data protection legislation at the time which included having a designated Data Protection Officer, Mr John Pegg. Mr Pegg carried out an analysis of the processes in place as against GDPR and was of the opinion that the first Respondent’s existing contracts with third parties and staff would largely meet the requirements of the GDPR. In his view, the biggest challenge for the first Respondent would be educating the workforce about GDPR and what it meant on a day to day basis. As a result, Ms Collette Hope who performed the role of Information Risk Management Awareness and Training Liaison Manager was tasked in or about February / March 2017 with the responsibility for driving forward the first Respondent’s training and awareness for compliance with GDPR.

[15]In early June 2017, Mr Pegg engaged the Regulatory Change team to manage the project for the implementation of GDPR. That team was a sub-division of the first Respondent’s Project Management Portfolio team and was managed by Mr Michael Johnson whose formal title then became GDPR Project Manager.

[16]Mr Pegg retired in late July 2017. Mr Johnson then reviewed the scope of the project plan in more detail and realised that its implementation was a significantly bigger task than was initially realised. Mr Johnson was of the opinion that all staff and third party contracts and documents would need to be remediated with GDPR compliant wording. The Respondent had a Legal Advisory Team headed by Ms Priya Kumar and comprising Ms Kumar and four lawyers. Its primary focus was on supporting the Respondent’s investment business. It was not considered to have the specific data privacy legal expertise to complete the task that Mr Johnson had identified. Therefore, it was decided that an external legal resource would need to be recruited on a short term basis to deal with this specialist work. A decision was taken to locate the recruited legal resource in the Information Risk Management Team headed by Mr Jonathan Parker rather than in the Legal Advisory Team headed by Ms Kumar.

[17]It was decided that the most appropriate form of engagement was to appoint a contractor to the role on a six-month fixed-term appointment rather than a permanent employee. Ms Hope wanted someone who was senior and had a great deal of legal data privacy experience to come in and “hit the ground running with very limited supervision from me, particularly given I am not legally qualified.” The fee for the role reflected these demanding requirements being pitched, as it was, at £950 per day.

[18]The decision to bring in a contractor was made in March 2018 at a point when there was a realisation that the impact on the Respondent’s investment business (often referred to internally as the “Funds Space”) was going to be far more complicated than had been realised. Thus, Ms Hope, when interviewing candidates for the role of GDPR lawyer, held the view that the successful candidate ideally needed to understand the Funds Space.

[19]Ms Hope, in the company of Mr Johnny Farren (a consultant in GDPR / Data Privacy), interviewed the Claimant on 29 March 2018. Following this, and other, interviews, Ms Hope and Mr Farren identified the Claimant as being the preferred candidate.

[20]The Claimant, for her part, had come to the interview via a recruitment agency, Major, Lindsey and Africa UK Ltd (MLA) which appears to have links with the Respondent’s third party managed service provider for recruitment called Resources Solutions. The Claimant dealt with Mr Anthony Graham of MLA who had placed her on a six-month fixed-term contract working for Clifford Chance. She was coming to the end of that contract and had made known to Mr Graham that she did not want to renew the contract. Her evidence to us was that, had Clifford Chance been prepared to offer her a permanent position, she would have stayed working for them.

[21]The Claimant’s case is that she suffers, and did suffer, from a medical condition which renders her disabled within the meaning of section 6 of the Equality Act 2010. The condition she suffers from is “a significant immune deficiency disorder causing [her] immune system to be severely compromised.” She has been “left with asthma as a result of repeated serious infections, including pneumonia and an MRSA-type of infection.”

[22]The effects of this disability on the Claimant were said to include: a) a substantially increased susceptibility to infections, frequently of a serious oblique/or rare nature requiring time off work, intensive antibiotic treatment (which itself has adverse effects), and hospitalisation. To illustrate and evidence these, in 2007, the Claimant required repeated treatment for serious chest infections which developed into pneumonia. She further contracted a very serious and extremely rare infection of acinetobacter baumannii (a multi-resistant MRSA-type bacteria) which required her to be hospitalised, and treated with intravenous antibiotics and other medication. The Claimant remains on daily antibiotics on a prophylactic basis and will remain on these for life. As noted above, the Claimant’s resulting lung condition (atypical asthma) requires ongoing treatment with medication and inhalers, including steroids; and b) debilitating fatigue and exhaustion, and associated concentration and memory problems. These render normal working tiring for the Claimant, and working longer hours and particularly excessively long hours a practical impossibility. If the claimant becomes exhausted and rundown, she is unable to recover with the aid of the short rest period, as individuals without her condition would be able to do, and further, excessive fatigue subsequently significantly increases her ongoing susceptibility to illness.

[23]The Claimant asserted that she explained to Mr Graham that she: … wished to have a more stable and balanced role that would not require the commitment and working hours of her current role, and that placed fewer demands and pressures on me, it was then that Mr Graham recommended the role with the First Respondent as being suitable.

[24]When cross-examined, the Claimant accepted there to be no evidence that she had informed the agency for which Mr Graham worked about her disability. She asserted, however, she “had told them about wanting to move for health reasons.”

[25]We did not hear evidence from Mr Graham. We do know that Resource Solutions sent a request through linked agencies to MLA asking that an email to the Claimant be forwarded to her, which email requested her to let the Respondent know if she required any reasonable adjustment. The email was forwarded to the Claimant but she did not respond. We find she did not inform the Respondent of the need for any reasonable adjustments. In those circumstances, we do not accept that any explanation of her wish to move away from Clifford Chance entailed any reference to the Claimant being disabled for the reasons she specified. Nor do we accept that the Claimant made Mr Graham aware that, in some respect or other, she sought some comparatively light role post Clifford Chance. Had she done so, we think that Mr Graham would have brought to the attention of the Respondent the Claimant’s desire for light work, something he did not do in the correspondence we have seen.

[26]As a lawyer selling her specialism in GDPR, the Claimant would have known of the impending deadline for the implementation of GDPR and she would have known that some businesses were finding the deadline difficult to meet which was why a business like the Respondent’s was prepared to pay £950 per day for her services. That being the case, it is difficult to see how she would have thought that the role she was being interviewed for with the Respondent was a role that would require her to work only defined hours. We take the view that she must have understood that she would be working such hours as were required by the job of getting the Respondent’s business organised successfully to meet the GDPR deadline.

[27]Mr Graham, in making arrangements for the Claimant to be interviewed by the Respondent, made mention that the Claimant should make herself available for interview before 5 p.m. We do not accept that this was intended to indicate to the Claimant that employees at the Respondent did not work later than 5 p.m.

[28]In the course of the interview, the Claimant claims she “openly explained my reasons for not wishing to extend or renew my then current contract despite it being offered to her”. She asserts that she: … was assured that the working hours were regular, and that there would be no reason for me to be working beyond those. Mr Farren in particular commented to me that I need not be concerned by working hours as “everyone has left the office at 5”.

[29]We did not hear from Mr Farren but Ms Hope denied that Mr Farren had made such a statement and furthermore asserted there to have been no discussion about set hours in the course of the interview. At the time of the Claimant’s interview, Ms Hope was, we accept, working flat out on the GDPR project for some time and we further accept she was open with the Claimant that the work of being a GDPR lawyer would be demanding. In the circumstances, we could not accept the Claimant’s evidence either of her indicating a desire for less demanding work or of Mr Farren indicating that “everyone has left the office at 5”.

[30]The job was offered to the Claimant and she accepted. One of the documents that was sent to the Claimant before she actually started work was an emailed request dated 13 April 2018 that she let the Respondent know “if you require any reasonable adjustments to your work space”. The Claimant did not respond to that request and argued before this Tribunal that she interpreted work space to mean her desk and work station. Such an interpretation is clearly permissible on the wording of the request. However, the Claimant was a lawyer who previously had issued an Employment Tribunal claim in respect of disability discrimination against a previous employer. If she considered that she had a disability that required the Respondent to make reasonable adjustments, the mention of reasonable adjustments in relation to the work space should have acted as a trigger for the realisation that she needed to inform the Respondent that she required it to make reasonable adjustments in matters other than her desk and work station. However, she made no such mention of a requirement for reasonable adjustments to be made for her and nor did she specify that she suffered from a disability.

[31]She started working for the Respondent on 16 April 2018. Ms Hope was the person who had most day to day contact with the Claimant and she was responsible for setting out and managing the work that the Claimant delivered for the Respondent on a day to day basis.

[32]It is apparent from the record of the times that the Claimant made use of her electronic pass to enter the Respondent’s premises that she usually came in to work after 9.30 a.m., often after 9.40 a.m. or 10 a.m. The earliest she ever came into the office was 9.23 a.m., and she never once came into the office before 9am. At the end of the day, she usually left the office around 6 or 6.30 p.m. There were at least three occasions where she left work before 6 p.m., and only two days where she ever worked to 8 p.m. or shortly after. When she occasionally worked late, she came into work late, usually after 10 a.m., the next day.

[33]The regularity with which the Claimant worked later than 5 p.m. is an added reason why we could not accept her contention that she had understood, either from Mr Graham or from Mr Farren, that she would have finished the day’s work by 5 p.m. Had she actually been given such an indication, she would have raised it with Ms Hope at an early stage. As it was, the example Ms Hope presented of arriving at 7.30 a.m. and leaving around 6 p.m. or later would, we feel, have caused the Claimant to question how Ms Hope could have permitted Mr Farren in the interview to assert that “everyone has left the office at 5”. No such question was raised by the Claimant. Shortly after the Claimant had joined the Respondent, Ms Hope went on holiday returning on 24 April 2018. On her return, the Claimant sent her an email indicating that all had been fine during Ms Hope’s absence. That was an excellent opportunity for the Claimant to have brought to Ms Hope’s attention a disparity between what she found herself doing in terms of working late and what Mr Farren had indicated.

[34]On 30 April 2018, the Claimant emailed Ms Hope to say that she had been unwell over the weekend and that she would not be able to come into work. She ascribed her ill-health to a chest infection and stated that it was probably caused by a bug that was going around. Ms Hope did not regard the notification of this day’s absence as anything unusual. After the day’s absence, the Claimant attended work and nothing was said by her to link her day’s absence to a compromised immune system or to any type of disability.

[35]The work that the Claimant did was at times of her own choosing. There was no requirement that she work long hours or that she was expected to work weekends. She did agree to look at some work for the Managing Director of a Luxembourg domiciled real estate investment fund over one weekend but this was without reference to Ms Hope who, had the matter been discussed with her, would have enquired of the Claimant as to whether she was happy to work the weekend.

[36]Ms Hope set the work that the Claimant was required to do. She did not insist on the work being turned around to a set deadline if that was not manageable. While Ms Hope tended not to take lunch breaks in favour of having a number of smoking breaks during the day, she did not require the Claimant not to take lunch or other breaks. She trusted the Claimant, as an experienced contractor, to manage her time herself. We accepted Ms Hope’s evidence that, if the Claimant had ever informed her that she had a longstanding health condition or that she needed more breaks from the work she was doing, Ms Hope would readily have discussed the issue with her.

[37]Ms Hope explained, and we accept, that there was no prohibition on members of Mr Parker’s team working from home. A number of members of Mr Parker’s team spent a day a week working from home. Ms Hope recalled explaining this to the Claimant but pointing out that all members of the team could not work from home on the same day. Insofar as the Claimant complains of not being allowed to work at home, that comment is the only comment that comes close to there being a prohibition on home working. Ms Hope explained also that the Claimant requested to be provided with a laptop for working at home, a request which was denied her as the Respondent expected contractors such as the Claimant to provide their own equipment. Consistent with that position, Ms Hope arranged for the Claimant to have access to the Respondent’s remote working platform “Everywhere” in early May 2018 which the Claimant could have accessed from her home making use of her own equipment.

[38]Ms Hope gave evidence, which we accept, of the support that the Respondent provided to the Claimant. The Claimant arranged for Ms Sippitt, whose job carried the title “Awareness and Training Administrator”, to manage the Claimant’s diary and to assist her with photocopying and administrative tasks. This was an arrangement to which Ms Hope, after speaking to Ms Sippitt, did not object. The Claimant expressed her view to Ms Hope that Mr Parker should arrange to give Ms Hope more support. After the Claimant had been engaged as a consultant, two other consultants were added to the GDPR Project Team, one of whom was Mr Farren. With three consultants in place, Ms Hope considered the team to be adequately resourced. We accept her evidence that, if the Claimant had informed her that she, the Claimant, had a disability, Ms Hope would have considered the matter further and, if necessary, have made adjustments. However, the Claimant did not so inform her.

[39]While it is the case that Ms Hope established a good working relationship with the Claimant, Ms Hope as early as April 2018 (the month in which the Claimant started work with the Respondent) started to receive complaints from other members of staff to the effect that the Claimant was difficult to work with. Ms Hope gave evidence of receiving a complaint from Ms Reena Shah, a colleague, to the effect that the Claimant had refused to review some language in marketing training materials on the basis that it was not part of the Claimant’s role. Ms Hope also noted a reluctance on the part of the Claimant to make herself available on the Respondent’s telephone system or to have her email address included in the Information Risk Management Team’s email circulation list. The result was that Ms Hope formed the opinion that the Claimant was not used to working within an environment such as the Respondent’s organisation.

[40]On 4 May 2018, the Claimant raised with Ms Hope the fact that the work she was being asked to undertake was more complex than she had anticipated. Ms Hope had some sympathy with this view given that it was since the arrival of the Claimant that the full extent of the challenge the Respondent faced was appreciated. The Claimant said she wanted a higher rate of pay and proposed an increase to £1,250 from £950. No mention was made that the request was predicated on the Claimant having a health condition or a disability. Ms Hope asked her to put her request in writing which the Claimant did in an email. There was no mention in the email of the request being based in whole or in part on the Claimant’s health.

[41]This request led to Mr Parker and Ms Hope having a meeting with the Claimant on 9 May 2018. At this meeting, the Claimant outlined her request for the increase in pay which she stated was due to the complexity of the work being undertaken. She asked for the increase to be backdated to the start of her engagement. She asked that, if she could not have the increase, she be permitted to move to a 4 day week but still received payment as for a 5 day week. She said that, had she known what it would be like working for the Respondent, she would have stayed in her previous role where she had support around her. If she continued to work at the rate she was presently working at, it would make her ill.

[42]She did not explain why a higher rate of pay would affect the issue of whether or not she became ill because of the work. After the meeting and in the absence of the Claimant, Ms Hope expressed her view to Mr Parker that she did not understand how a higher rate of pay affected that issue. A period of negotiation followed with Mr Parker seeking approval of the rate increase and eventually getting such approval for an increase backdated to 3 May 2018, the time when Ms Hope believed the complexity of the work increased. The increase was to last until such time that the more complex work was not required – that being anticipated to be around the end of June 2018.

[43]In the period following the increase granted to the Claimant’s daily rate, tensions began to appear between the Legal Advisory Team and, in particular, an impasse appeared to have been reached over the amount of information that compliance with GDPR required in certain short agreements with the Claimant contending more rather than less was necessary. Mr Parker arranged for Ms Monica Sidique, the Respondent’s Data Protection Officer, to mediate between the Claimant and the Legal Advisory Team. In consequence, on 24 May 2018, Ms Sidique presided over a meeting attended by the Claimant, Ms Kumar, Mr Parker and Ms Hope. The meeting ended with apparent agreement on a way forward. However, after the meeting, the Claimant indicated to Ms Hope she was unhappy with the outcome.

[44]The following day was GDPR implementation day. Ms Hope had arranged with her colleague, Ms Reena Shah, to be positioned in the entrance lobby of the Respondent’s premises at Governor’s House on Laurence Pountney Hill, London to hand out leaflets and specially branded water bottles to incoming staff to mark the coming into effect of GDPR. Whilst there, Ms Hope received an email addressed to her and Ms Kumar saying she would like the Legal Advisory Team to lead and review all Data Protection work and advice.

[45]When Ms Hope could review and reflect on this email, she formed the view that the Claimant was essentially refusing to take responsibility for her role. After the Bank Holiday weekend on 29 May 2018, she met with Mr Parker and Mr Johnson to discuss the Claimant’s email of 25 May 2018. The view they formed was that the role the Claimant performed required her to be able to establish good relationships and work effectively with the Legal Advisory Team and to accept some accountability for her work. Their view was that the Claimant appeared to be unable or unwilling to do this and they had no alternative but to dismiss her and find a replacement. In the discussion leading up to their decision to dismiss, there was no mention of the Claimant’s health.

[46]Ms Hope then had a meeting with the Claimant on 29 May to inform her of the decision to dismiss. Ms Hope believed the Claimant to be on one month’s notice. She proposed that, during the notice period when the Claimant was working on “certain deliverables” which Ms Hope set out, she would be paid at the rate of £1,250 per day. When not working, she would be paid £950 per day. When she left the presence of the Claimant to take a conference call, she told the Claimant that she would check on the notice period (the Claimant believed she was on one week’s notice) with Resource Solutions and get back to her. Whilst Ms Hope was on the call, the Claimant sent an email to Mr Parker purporting to serve on the Respondent her notice of termination of one week.

[47]Mr Parker replied to the Claimant’s email accepting her notice. The Claimant then emailed Mr Parker, copying in the General Counsel and the Respondent’s Head of Real Estate, a message criticising the Respondent’s approach to GDPR and asking Mr Parker to agree to either 29 or 30 May as being her last day of work. In the event, Ms Hope met with the Claimant on 30 May and arranged for a handover of her work and for her to hand in her pass.

[48]The evidence we heard from Mr Parker, which we accept, was to the effect that, at no point during the period he and the Claimant interacted, did she mention that she suffered from a medical condition of any sort or that her work was exacerbating any underlying condition. The first he knew of the Claimant purporting to have a disability was when she wrote to the Respondent regarding making a claim for disability discrimination. Further, he confirmed the account that Ms Hope had given concerning the lack of set hours the Claimant had to work and stated his impression that she seemed to arrive between 9.30 and 10 a.m. and work until between 6 and 7.30 p.m. Mr Parker confirmed also his support for staff to work at home for one day a week and for extended periods should personal circumstances dictate or where a medical condition might require it. At no point did he discourage the Claimant from working at home.

[49]Mr Parker and Mr Johnson both confirmed they, in conjunction with Ms Hope, took the decision on 29 May to terminate the Claimant’s engagement with the Respondent. Both denied any knowledge of the Claimant having a disability or an underlying health condition. Mr Parker asserted that they had all agreed they needed a more collegiate and flexible approach from someone in the role filled by the Claimant. Mr Johnson stated their agreement was that they needed a more commercial and flexible approach from the occupant of that role. We concluded that the decision to dismiss was based on a perception of shortcomings in the Claimant’s performance in the role and that knowledge of the Claimant’s disability or even of her having an underlying health condition played no part in the decision to terminate her engagement.

The Issues

[50]The Respondent produced a List of Issues in accordance with the direction of Employment Judge Wade of 27 February 2019 which we have used to assist us in our deliberations. We understood this List to be agreed.

[51]We were clear that neither the Respondent nor Mr Parker knew or reasonably ought to have known that the Claimant was a disabled person at any stage of her engagement with the Respondent. The proposition that a day’s absence because of a chest infection - the result of a bug said to be going around – should have put the Respondent on notice that the Claimant suffered from a disability seems to us to be misconceived.

[52]The last day that the Claimant worked was 30 May 2018. She alleges discrimination arising from the decision to dismiss her which was taken on 29 May 2018. Early Conciliation engaged ACAS from 22 August 2018 to 22 September 2018. The period of three months starting with 29 May 2018 ends within the period that ACAS was engaged in Early Conciliation. Therefore, she had until 22 October 2018 in which to present that allegation of discrimination to the Employment Tribunal. Her claim in respect of that allegation is therefore within time.

[53]The other acts of discrimination alleged relate to a failure to make reasonable adjustments which are set out in the Claimant’s Grounds of Complaint at paragraph 39(a) to (h). Those at sub-paragraphs (a) to (e) appear to be complaints of inactivity in the early stages of the Claimant’s engagement. But, because they relate to inactivity, they can equally be said to relate to inactivity at later stages of the engagement. We consider them, therefore, to be part of conduct extending over a period of time and coming to an end at the conclusion of the Claimant’s work. Therefore, we find them to be within time.

[54]If we are wrong about that, we should say that the Claimant has not provided evidence that would persuade us to exercise the discretion to allow her claims to go ahead notwithstanding them being out of time. In that regard, we bear in mind the observations of Auld LJ in Robertson v Bexley Community Centre

[2003] IRLR 434

(CA): 25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.

[55]As regards the reasonable adjustments that are alleged not to have been made by the Respondent, our views are that the Respondent did not apply PCPs to her: i) To work beyond the hours expected of her of 9.30 a.m. to 6 p.m.; ii) To carry too great a workload, especially without support; iii) Not to work from home; iv) Not to take lunch or other rest breaks; v) To turn work around rapidly.

[56]We did not regard those PCPs, had they been applied, as placing the Claimant at a substantial disability in comparison to a hypothetical non-disabled comparator. We do not accept the proposition advanced by the Claimant that she was placed in a position whereby she was becoming unwell from after 30 April and was, as a result, struggling at work.

[57]If we are wrong about that, we do not think the substantial disadvantage would have been avoided by making reasonable adjustments because we do not accept that the PCPs set out in paragraph 54 above were applied to her. The Claimant was free to choose her own hours, to perform the workload in such manner as she wished with no prohibition on working from home or from taking such breaks as she wished and to turn work around at her own speed. We do not accept, in the context of the Claimant’s engagement as a result of the GDPR implementation, that any of the adjustments the Claimant alleges should have been made would have had the effect she asserts they would have had.

[58]We find no evidence that the Claimant requested any of the adjustments set out in paragraph 9 of the List of Issues.

[59]We do not, in all the circumstances, consider it reasonable for the Respondent to have made any or all of the proposed adjustments given that the Claimant was offering to absorb the pressure of working towards GDPR implementation at the daily rate agreed upon.

[60]We accept that the Claimant has established that the Respondent and Mr Parker sought to dismiss the Claimant. We do not accept that the Respondent unilaterally sought to reduce the Claimant’s agreed fee. Ms Hope was quite specific: when the Claimant worked during her notice period, she would receive the negotiated fee of £1,250. Where she did not, she would receive £950 as opposed to no fee.

[61]We accept that dismissing the Claimant was treating her unfavourably. We accept that paying her £950 for days not worked during the Claimant’s notice period might be regarded as unfavourable treatment of the Claimant in comparison to her receiving £1,250. However, it was favourable treatment in comparison to her receiving nothing for days not worked.

[62]If we were to accept the unfavourable interpretation of receiving £950 for days not worked in comparison to receiving £1,250, we do not accept that such unfavourable treatment was because of something arising in consequence of the Claimant’s disability. Neither the Respondent nor Mr Parker had knowledge of the Claimant’s disability. Further, neither fatigue on the part of the Claimant nor concentration difficulties played any part in the decision making which led to the unfavourable treatment.

[63]If we are wrong about unfavourable treatment not being because of something arising in consequence of the Claimant’s disability, we consider the Respondent can show that the treatment of the Claimant was a proportionate means of achieving a legitimate aim, that of having a person who was prepared to work effectively with other staff and take responsibility for the advice she or he provided.

[64]We were satisfied that the complaint to the Employment Tribunal of the acts of victimisation alleged by the Claimant were brought within time. However, we were not satisfied that the Claimant made any protected acts which led to her suffering the detriments she alleges flowed from her making protected acts. The fact that the Claimant may have had conversations with Ms Hope and Mr Parker in which she alleged that the work, and the demands of the job upon her, was making her ill did not, in our view, constitute protected acts within the meaning of section 27(2) of the Equality Act 2010.

[65]We considered that the Claimant had proved, on the balance of probabilities, that the Respondent and Mr Parker had sought to dismiss her. We did not accept that she had established that the Respondent had unilaterally reduced the Claimant’s agreed fee. Insofar as we accepted she had proved the former, we accepted she was subjected to a detriment by the Respondent and Mr Parker. However, we were satisfied that such treatment (including – should we be wrong – the latter) was not because the Claimant had done a protected act.

[66]Finally, on the list of issues, we did not consider what loss or injury the Claimant had suffered because, in our view, it did not result from discriminatory treatment or from any victimisation. Nor did we investigate issues of mitigation of loss.

[67]Our overall conclusion was that the claims should be dismissed in their entirety. 7 February 2020