Ms S Anrude v The Advisory, Conciliation and Arbitration Service (Acas): 2207635/2021
REASONS
24th March 2023 APPENDIX: LIST OF ISSUES Disability (s. 6 Equality Act 2010)[1]The Respondent admits that the Claimant had the following disabilities :a. cerebral vasculitis (at all material times)b. dystonic left hand (at all material times)c. d. ‘long Covid’ (from 14 May 2021). Jurisdiction[2]The Claimant contacted ACAS on 25 October 2021, ACAS issued the certificate on 6 December 2021, and the Claimant presented her ET1 on 23 December 2021.[3]Did any of the Respondent’s alleged unlawful acts/omissions referred to in the claims below occur on or before 26 July 2021?[4]If yes, were the Claimant’s complaints about those matters presented in/out of time?[5]If out of time, was there a continuing series of acts the last act of which a complaint was timely presented?[6]If out of time, is it just and equitable for the Tribunal to extend time to allow those complaints to be presented out of time and determined on their merits? Claim #1: Discrimination arising from disability (s.15 EqA 2010)[7]Did the Respondent subject the Claimant to the following treatment, and if yes was that unfavourable treatment of her:a. from about 1 June 2021, the Respondent counted the Claimant’s ‘long Covid’- related absences towards her absence trigger pointsb. the Respondent required the Claimant to attend the following meetings unaccompanied: i. meeting on 26 July 2021 ii. ‘return to work’ meetings related to her absence (on 1 June 2021, 15 June 2021, 3 September 2021 and 2 November 2021)c. on 28 July 2021, the Respondent sent the Claimant (and the Claimant received) a ‘letter of informal management advice’d. on 20 August 2021, the Respondent sent an email to the Claimant threatening her with a performance improvement periode. on 20 August 2021, the Respondent cut short the Claimant’s phased return to work despite advice from the Claimant’s GP[8]The Respondent concedes knowledge or constructive knowledge of cerebral vasculitis and dystonic left hand as disabilities at all material times and of long covid as a disability from 14 May 2021.[9]Was the treatment because of one or more of the following “somethings”:a. Claimant’s absencesb. Claimant’s ‘brain fog’, memory issuesc. Claimant’s ‘long Covid’ symptoms[10]Did the ‘somethings’ above arise in consequence of the Claimant’s disabilities of cerebral vasculitis and/or long Covid?[11]Were the following legitimate aims of the Respondent:(a) ensuring business continuity through satisfactory levels of attendance and service delivery (the Claimant accepts this was, at least in principle, a legitimate aim) and(b) the need to encourage the prompt completion of a return to work meeting without delay for an employee returning from sickness absence as part of the active management of attendance and protection of health and safety.[12]Was the treatment of the Claimant a proportionate means of achieving either of those aims? - 51 - Claim #2: Indirect disability discrimination (s.19 EqA 2010)[13]Did the Respondent apply the following PCPs to the Claimant:a. Respondent’s phased return policyb. requirement that Claimant complete her phased return within 12 week periodc. policy from June 2021 of no longer discounting Covid-related absences for absence-related trigger pointsd. Respondent’s absence policy[14]Did or would the Respondent apply the above PCPs to persons who did not share the Claimant’s disabilities?[15]Did the application of the PCPs put the Claimant, because of her disabilities of cerebral vasculitis and/or long Covid, to the following particular disadvantage(s)?a. because she had to complete her phased return within a 12 week period, the Claimant’s recovery was halted and she became ill;b. because she was more likely to be absent in consequence of her disabilities, the Respondent’s absence management process/policies were more likely to be applied to the Claimant;c. the Claimant was more likely to be absent and/or require additional time to recover.[16]Did or would the application of the PCPs to persons who shared the Claimant’s protected characteristic of disability (cerebral vasculitis and/or long Covid) put them to the same disadvantage(s)?[17]Did or would the application of the PCPs to persons who did not share the Claimant’s protected characteristic of disability (cerebral vasculitis and/or long Covid) put them to the same disadvantage(s)?[18]Were the following legitimate aims of the Respondent:(a) ensuring business continuity through satisfactory levels of attendance and service delivery (the Claimant accepts this was, at least in principle, a legitimate aim) and(b) the need to encourage the prompt completion of a return to work meeting without delay for an employee returning from sickness absence as part of the active management of attendance and protection of health and safety. - 52 -[19]Was the treatment of the Claimant a proportionate means of achieving either of those aims? Claim #3: Failure to make reasonable adjustments (ss.20-21 EqA 2010)[20]Did the Respondent apply the following PCPs to the Claimant (and if so, when):a. Respondent’s absence policyb. Respondent’s phased return policyc. requirement that Claimant complete her phased return within 12 week periodd. requirement that Claimant be fit in order to undertake the duties of her poste. policy from June 2021 of no longer discounting Covid-related absences when determining whether absence trigger points have been reachedf. policy of not permitting representation at return to work meetings[21]Did the application of the PCPs put the Claimant, because of her disabilities of cerebral vasculitis and/or long Covid, to the following substantial disadvantage(s):a. because she had to complete her phased return within a 12 week period, the Claimant’s recovery was halted and she became ill;b. because she was more likely to be absent in consequence of her disabilities, the Respondent’s absence management process/policies were more likely to be applied to the Claimant;c. the Claimant was more likely to be absent and/or require additional time to recover;d. the Claimant was more likely to be considered absent because her Covid-related absences were not discounted when determining absence trigger points;e. the Claimant had difficulty concentrating, understanding and following what was said if she attended meetings unaccompanied.[22]When the PCPs were applied to the Claimant:a. The Respondent concedes knowledge or constructive knowledge of cerebral vasculitis and dystonic left hand as disabilities at all material - 53 - times and of long covid as a disability from 14 May 2021.b. did the Respondent know, or ought it to have known, that the application of the PCP put the Claimant to the above disadvantages?[23]Did the application of the PCP put persons who did not share the Claimant’s disabilities of cerebral vasculitis and/or long Covid to the above disadvantage(s)?[24]Would the Respondent taking the following steps have avoided the above disadvantages:a. extending Claimant’s phased return until 4 October 2021b. allowing Claimant to be accompanied at return to work meeting on 28 Julyc. discounting Claimant’s long Covid-related absences towards absence trigger pointsd. allowing Claimant to take short breaks as/when required during work daye. providing Claimant with a different line manager after Claimant raised concerns in an informal management meeting on 16 August 2021[25]Did the Respondent take such steps?[26]If not, was it reasonable for the Respondent to have to take such steps to avoid the disadvantage? Claim #4: Harassment (s.26 EqA 2010)[27]Did the Respondent engage in the following conduct:a. on 6 May 2021, Louise Binns sent an email to the Claimant relating to the Claimant’s return to work planb. on 28 May 2021, Louise Binns sent an email to the Claimant relating to the Claimant’s back to work meetingc. on 28 July 2021, the Respondent sent the Claimant (and the Claimant received) a ‘letter of informal management advice’d. on 16 August 2021, the Respondent held an informal concern meeting with the Claimante. on 20 August 2021, the Respondent sent an email to the Claimant threatening her with a performance improvement periodf. on 27 October 2021, Louise Binns sent an email to the Claimant - 54 -[28]Was that conduct unwanted by the Claimant?[29]Did that conduct relate to the Claimant’s disabilities of cerebral vasculitis and/or long Covid?[30]Was the effect of the conduct to violate the Claimant’s dignity (the Claimant accepts this was not the purpose)?[31]Was the effect of the conduct to create an intimidating, offensive, hostile, degrading or humiliating environment for the Claimant (the Claimant accepts this was not the purpose)?[32]Was it reasonable for the conduct to have that effect, taking into consideration the Claimant’s perception and the other circumstances of the case? Remedy (EA 2010, s 123)[33]To what compensation is the Claimant entitled (she claims only an injury to feelings award)? - 55 -